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EXHIBIT 4.1
INDENTURE
INDENTURE dated as of May 12, 1999, between Susquehanna Media Co., a
Delaware corporation (the "Issuer"), and Chase Manhattan Trust Company, National
Association, a national banking association (the "Trustee").
RECITALS
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders (the "Holders" or "Noteholders")
of: (i) the Issuer's 8-1/2% Senior Subordinated Notes due 2009 being issued on
the date hereof, (ii) any Add-On Notes (as hereinafter defined) that may be
issued after the Issue Date (as hereinafter defined) (all such securities in
clauses (i) and (ii) being referred to collectively as "Initial Notes") and
(iii) if and when issued in exchange for Initial Notes as provided in the
Registration Rights Agreement or a similar agreement relating to Add-On Notes,
the Issuer's 8-1/2% Senior Subordinated Notes due 2009 (the "Exchange Notes",
and together with the Initial Notes, the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any Person, (i) any
Indebtedness or Disqualified Stock of any other Person existing at the time such
other Person is merged with or into or becomes a Restricted Subsidiary of such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person, and in either
case for purposes of this Indenture such Indebtedness shall be deemed to be
incurred by such specified Person at the time such other Person is merged with
or into or becomes a Restricted Subsidiary of such specified Person or at the
time such asset is acquired by such specified Person, as the case may be.
"Add-On Notes" has the meaning assigned to it in Section 2.13.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person, including any director or executive officer
of such specified Person. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), when used with respect to any Person, means
(i) the power to direct the management and policies of such Person, directly or
indirectly,
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whether through the ownership of voting securities, by contract or otherwise, or
(ii) the beneficial ownership of 10% or more of the total voting power of the
Voting Stock (on a Fully Diluted basis) of such Person.
"Affiliate Transaction" has the meaning assigned to it in Section 4.12.
"Agent Members" has the meaning assigned to it in Section 2.06(a).
"Asset Acquisition" means (i) an Investment by the Issuer or any
Restricted Subsidiary in any other Person pursuant to which such Person shall be
merged with or into the Issuer or any Restricted Subsidiary, or (ii) the
acquisition by the Issuer or any Restricted Subsidiary of the assets of any
Person (other than a Subsidiary of the Issuer) which constitutes all or
substantially all of the assets of such Person or comprises any division or line
of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
lease, assignment, transfer or other disposition for value (including, without
limitation, pursuant to any amalgamation, merger or consolidation or pursuant to
any sale and leaseback transaction) by the Issuer or by any of its Restricted
Subsidiaries to any Person other than the Issuer or any of its Restricted
Subsidiaries (any such transaction, a "disposition") of (i) any of the stock of
any of the Issuer's Subsidiaries, (ii) substantially all of the assets of any
division or line of business of the Issuer or of any of its Subsidiaries, or
(iii) any other assets (whether tangible or intangible) of the Issuer or of any
of its Subsidiaries; excluding (a) any disposition of Cash Equivalents or
inventory in the ordinary course of business or obsolete equipment in the
ordinary course of business consistent with past practices of the Issuer or any
of its Subsidiaries or the lease or sublease of any real or personal property in
the ordinary course of business, (b) dispositions of stock or assets the
aggregate value of which does not exceed $1,000,000 less the aggregate value of
all other dispositions of stock or assets made subsequent to the Issue Date
pursuant to this clause (b), (c) exchanges of properties or assets for other
properties or assets, excluding cash or Cash Equivalents but including the
Capital Stock of a Person if, as a result of such exchange, such Person becomes
a Restricted Subsidiary; provided, that the property or assets so acquired, or
the property or assets of the Person the Capital Stock of which is so acquired
(1) are used in a Related Business and (2) have a fair market value at least
equal to the fair market value of the assets or properties being exchanged (as
evidenced by a resolution of the Issuer's Board of Directors) and (d) for
purposes of Section 4.11 only, a disposition made in accordance with Section
4.09.
"Asset Sale Offer" has the meaning assigned to it in Section 4.11.
"Asset Sale Offer Amount" has the meaning assigned to it in Section 4.11.
"Asset Sale Purchase Date" has the meaning assigned to it in Section 4.11.
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"Bankruptcy Law" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute or any
other United States federal, state or local law or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
"Blockage Notice" has the meaning assigned to it in Section 10.03.
"Board of Directors" means, as the context requires, the Board of
Directors or comparable governing body of the Issuer or the applicable
Restricted Subsidiary, as the case may be, or any committee thereof duly
authorized to act on behalf of such Board. In the case of a partnership or
limited liability company, the comparable governing body shall be partners or
members of such partnership or limited liability company or such other body as
may be duly authorized by such partners or members generally to manage the
business and affairs of the partnership or limited liability company.
"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
Issuer or a Guarantor, as appropriate, and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of New York, New York or is a day on which
banking institutions therein or banking institutions located in the city in
which the Corporate Trust Office is located are authorized or required by law or
other governmental action to close.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) the equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be capitalized and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof, (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either S&P or Xxxxx'x, (iii) commercial paper maturing no more than one
year from the date of creation thereof and, at the time of acquisition,
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having the highest rating obtainable from either S&P's or Xxxxx'x, (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any commercial bank organized under
the laws of the United States of America or any state thereof or the District of
Columbia that (a) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000, (v) shares of
any money market mutual fund that (a) has its assets invested continuously in
the types of investments referred to in clauses (i) and (ii) above, (b) has net
assets of not less than $500,000,000, and (c) has the highest rating obtainable
from either S&P's or Xxxxx'x, and (vi) repurchase agreements with respect to,
and which are fully secured by a perfected security interest in, obligations of
a type described in clause (i) or clause (ii) above and are with any commercial
bank described in clause (iv) above.
"Certificated Notes" means Notes in certificated form.
"Change of Control" has the meaning assigned to it in Section 4.14.
"Change of Control Offer" has the meaning assigned to it in Section 4.14.
"Change of Control Payment Date" has the meaning assigned to it in Section
4.14.
"Change of Control Purchase Price" has the meaning assigned to it in
Section 4.14.
"Consolidated EBITDA" means, with respect to the Issuer for any period,
without duplication, (i) the sum of (a) Consolidated Net Income and (b) to the
extent Consolidated Net Income has been reduced thereby, (1) all income taxes of
the Issuer and its Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or nonrecurring gains or losses or taxes attributable to sales or
dispositions outside the ordinary course of business), (2) Consolidated Interest
Expense, (3) Consolidated Non-Cash Charges less any non-cash items increasing
Consolidated Net Income for such period, (4) minority interests and (5) ESOP
Expense, less (ii) to the extent Consolidated Net Income has been increased
thereby, the interest income received by the Issuer as a result of the repayment
of the ESOP Loan, all as determined on a consolidated basis for the Issuer and
its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the Issuer for any
period, the sum without duplication of: (i) the aggregate of all cash and
non-cash interest expense (minus amortization or write-off of deferred financing
costs included in cash or non-cash interest expense) of the Issuer and its
Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including (a) any amortization of debt discount, (b) the
net costs under Interest Rate Protection Agreements, (c) all capitalized
interest and (d) the interest portion of any deferred payment obligation, and
(ii) the interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by the Issuer and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
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accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (i) the sum of the aggregate outstanding amount of Indebtedness of the
Issuer and its Restricted Subsidiaries as of the date of calculation as
determined on a consolidated basis in accordance with GAAP to (ii) Consolidated
EBITDA of the Issuer during the four full fiscal quarters ending on or prior to
the date of the transaction giving rise to the need to calculate the
Consolidated Leverage Ratio. For purposes of this definition, Consolidated
Leverage Ratio will be calculated after giving effect on a pro forma basis for
the period of such calculation to (A) the incurrence or repayment of any
Indebtedness of the Issuer or any of its Restricted Subsidiaries giving rise to
the need to make such calculation and any incurrence or repayment of other
Indebtedness, other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes, occurring during the
four quarter period or at any time subsequent to the last day of the four
quarter period and on or prior to the date of determination, as if such
incurrence or repayment occurred on the first day of the four quarter period and
(B) any Asset Sales or Asset Acquisitions (including any Asset Acquisition
giving rise to the need to make such calculation as a result of the Issuer or
one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of such Asset Acquisition) incurring or
otherwise becoming liable for Acquired Indebtedness) occurring during the four
quarter period or at any time subsequent to the last day of the four quarter
period and on or prior to the transaction date, as if such Asset Sale or Asset
Acquisition (including the incurrence, assumption or liability for any Acquired
Indebtedness and also including any Consolidated EBITDA associated with such
Asset Acquisition) occurred on the first day of the four quarter period. If the
Issuer or any of its Restricted Subsidiaries guarantees Indebtedness of a third
Person, the preceding sentence will give effect to the incurrence of such
guaranteed Indebtedness as if the Issuer or such Restricted Subsidiary, as the
case may be, had directly incurred such guaranteed Indebtedness. Furthermore, in
calculating Consolidated Interest Expense for the purposes of the calculation of
Consolidated EBITDA, (X) interest on Indebtedness determined on a fluctuating
basis as of the date of determination (including Indebtedness actually incurred
on the date of the transaction giving rise to the need to calculate the
Consolidated Leverage Ratio) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness as in effect on the date of
determination and (Y) notwithstanding (X) above, interest determined on a
fluctuating basis, to the extent such interest is covered by Interest Rate
Protection Agreements, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements.
"Consolidated Net Income" means, for any period, the aggregate net income
(or loss) of the Issuer and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP; provided, that there
shall be excluded therefrom (i) after-tax gains and losses from Asset Sales or
abandonment or reserves relating thereto, (ii) items classified as
extraordinary, nonrecurring or unusual gains, losses or charges, and the related
tax effects, each determined in accordance with GAAP, (iii) the net income of
any Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the Issuer
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or is merged or consolidated with the Issuer or any Restricted Subsidiary of the
Issuer, (iv) the net income (but not loss) of any Restricted Subsidiary of the
Issuer to the extent that the declaration of dividends, the making of
intercompany loans or similar payments by that Restricted Subsidiary of that
income is restricted by a contract, operation of law or otherwise, (v) the net
income of any Person, other than a Restricted Subsidiary of the Issuer, except
to the extent of cash dividends or distributions paid to the Issuer or to a
Restricted Subsidiary of the Issuer by such Person, (vi) any restoration to
income of any contingency reserve, except to the extent that provision for such
reserve was made out of Consolidated Net Income accrued at any time after
December 31, 1998, (vii) income or loss attributable to discontinued operations
(including operations disposed of during such period whether or not such
operations were classified as discontinued), and (viii) in the case of a
successor to the Issuer by consolidation or merger or as a transferee of the
Issuer's assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Issuer and its consolidated Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of the end of the
most recent fiscal quarter of the Issuer ending at least forty-five (45) days
prior to the taking of any action for the purpose of which the determination is
being made, as (i) the par or stated value of all outstanding Capital Stock of
the Issuer plus (ii) paid-in capital or capital surplus relating to such Capital
Stock plus (iii) any retained earnings or earned surplus less (a) any
accumulated deficit and (b) any amounts attributable to Disqualified Stock.
"Consolidated Non-Cash Charges" means with respect to the Issuer, for any
period, the aggregate depreciation, amortization and other non-cash expenses
(excluding any non-cash expense to the extent that it represents an accrual of
or reserve for cash expenses in any future period or amortization of a prepaid
cash expense that was paid in a prior period) of the Issuer and its Restricted
Subsidiaries reducing Consolidated Net Income of the Issuer for such period,
determined on a consolidated basis in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time this Indenture shall be principally administered, which office
is, at the date of execution of this Indenture, One Liberty Place, 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX 00000, Attention: Capital Market Fiduciary
Services (Susquehanna Media Co. 8 1/2% Senior Subordinated Notes due 2009).
"Custodian" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.12 hereof.
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"Depositary" means The Depository Trust Company, its nominees, and their
respective successors.
"Designated Senior Indebtedness" means, in respect of the Issuer, all
obligations under or arising out of the Senior Credit Facility and any other
Senior Indebtedness of the Issuer which, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least
$5,000,000 and is specifically designated by the Issuer in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" and, in respect of any Guarantor, any Guarantee by such Guarantor
of Designated Senior Indebtedness of the Issuer.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable for any reason, (ii) is convertible or exchangeable
for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the Stated Maturity of the Notes; provided, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an Asset Sale or Change of
Control occurring prior to the first anniversary of the Stated Maturity of the
Notes shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not more favorable to
the holders of such Capital Stock than the provisions described under Section
4.11 and Section 4.14.
"ESOP" means the Susquehanna Pfaltzgraff Co. Employee Stock Ownership Plan
dated May 12, 1999.
"ESOP Expense" means, for any period without duplication, the sum of (i)
to the extent such expense is in the form of a cash payment, the amount of cash
actually paid by the Issuer to Susquehanna Pfaltzgraff Co. for the purpose of
funding share allocations in the ESOP; provided, that such amount shall be
limited to the lesser of (a) the amount of such cash payment and (b) the amount
of cash received by the Issuer from Susquehanna Pfaltzgraff Co. within two
Business Days of any such payment as repayment of principal and interest on the
ESOP Loan; plus (ii) to the extent such expense funding share allocations under
the ESOP is a non-cash expense, the amount of such non-cash expense.
"ESOP Loan" means the $116.9 million loan made by the Issuer to
Susquehanna Pfaltzgraff Co. on May 12, 1999.
"Event of Default" has the meaning assigned to it in Section 6.01.
"Excess Proceeds" has the meaning assigned to it in Section 4.11.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Certificated Notes" has the meaning assigned to it in Section
2.01.
"Exchange Global Note" has the meaning assigned to it in Section 2.01.
"Exchange Note" has the meaning assigned to it in the recital hereto.
"Excluded Transactions" means (i) agreements in existence on or prior to
the Issue Date, (ii) the ESOP Loan, (iii) payments of management fees by the
Issuer to Susquehanna Pfaltzgraff Co. in an amount not to exceed 4.0% of the
consolidated net revenues of the Issuer, (iv) payments by the Issuer to
Susquehanna Pfaltzgraff Co. pursuant to any tax sharing agreement, (v) payments
to Susquehanna Pfaltzgraff Co. constituting reimbursements of actual
out-of-pocket expenses reasonably incurred on behalf of the Issuer and its
Restricted Subsidiaries in the ordinary course of their businesses and (vi) the
annual cash payment from the Issuer to Susquehanna Pfaltzgraff Co. for the
purpose of funding share allocations in the ESOP.
"Fully Diluted" means all shares of common stock, computed as if all
warrants, options and other securities exercisable for, convertible into or
otherwise having the right to acquire common stock had been exercised or
converted.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Issue Date, including those set forth (i) in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) in statements and
pronouncements of the Financial Accounting Standards Board, (iii) in such other
statements by such other entity as approved by a significant segment of the
accounting profession, and (iv) in the published rules and regulations of the
SEC governing the inclusion of financial statements (including pro forma
financial statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of
the SEC.
"Global Notes" means the Initial Global Notes and the Exchange Global
Note.
"Guarantee" means any guarantee of the Notes, on a senior subordinated
basis, by a Restricted Subsidiary of the Issuer that may be issued in accordance
with Section 4.21.
"Guarantor" means any Restricted Subsidiary of the Issuer that executes a
supplemental indenture in accordance with Section 4.21.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
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"incur" means issue, assume, guarantee, incur or otherwise become liable
for; provided, that any Indebtedness or Capital Stock of a Person existing at
the time such Person becomes a Restricted Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Restricted Subsidiary. The term "incurrence"
when used as a noun shall have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination, (i) all indebtedness, obligations and liabilities of such Person
for borrowed money, (ii) all indebtedness, obligations and liabilities of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all indebtedness, obligations and liabilities of such Person evidenced by
Capitalized Lease Obligations, (iv) all indebtedness, obligations and
liabilities of such Person evidenced by notes payable and drafts accepted
representing extensions of credit, whether or not representing obligations for
borrowed money, of such Person, (v) all indebtedness, obligations or liabilities
of such Person owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months (or a longer period of up
to one year, if such terms are available from suppliers in the ordinary course
of business) from the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument, (vi) all indebtedness,
obligations and liabilities secured by any Lien on any property or asset owned
or held by that Person (including any Lien arising under any conditional sale or
other title retention agreement, any sale-leaseback arrangement or any other
lease in the nature thereof and any agreement to give any security interest)
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person, (vii) guarantee
obligations of such Person in respect of Indebtedness of other Persons and
(viii) all Disqualified Stock issued by such Person with the amount of
Indebtedness represented by such Disqualified Stock being equal to the greater
of its voluntary or involuntary liquidation preference and its maximum fixed
repurchase price, but excluding accrued dividends, if any. Indebtedness shall
not include (a) trade payables and accrued liabilities incurred in the ordinary
course of business for the purchase of goods or services which are not secured
by a Lien other than a Lien permitted pursuant to clause (ii) of the definition
of Permitted Liens and (b) obligations under Interest Rate Protection
Agreements. For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified Stock, such
fair market value to be determined reasonably and in good faith by the board of
directors of the issuer of such Disqualified Stock.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Initial Certificated Notes" has the meaning assigned to it in Section
2.01.
"Initial Global Notes" means the Rule 144A Global Note, the Regulation S
Temporary
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Global Note and the Regulation S Permanent Global Note.
"Initial Notes" has the meaning assigned to it in the recital hereto.
"Initial Purchasers" means First Union Capital Markets Corp. and
NationsBanc Xxxxxxxxxx Securities LLC.
"Insolvency or Liquidation Proceeding" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith, relating to the
Issuer or its assets, or (ii) any liquidation, dissolution or other winding up
of the Issuer, whether voluntary or involuntary or whether or not involving
insolvency or bankruptcy, or (iii) any assignment for the benefit of creditors
or any other marshaling of assets or liabilities of the Issuer.
"Institutional Accredited Investors" means institutional "accredited
investors," as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act, other than QIBs.
"Interest Payment Date" means each semiannual Interest Payment Date on May
15 and November 15 of each year, commencing November 15, 1999, in respect of the
Notes.
"Interest Rate Protection Agreement" of any Person means any interest rate
protection agreement (including interest rate swaps, caps, floors, collars,
derivative instruments and similar agreements) in support of the Issuer's
business and not of a speculative nature.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are,
in conformity with GAAP, recorded as accounts receivable on the balance sheet of
such Person) or other extensions of credit (including by way of a guarantee
obligation or similar arrangement) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase, redemption or
acquisition of Capital Stock, indebtedness or other similar instruments issued
by such Person. For purposes of the definition of "Unrestricted Subsidiary," the
definition of "Restricted Payment" and Section 4.09, (i) "Investment" shall
include the portion (proportionate to the Issuer's equity interest in such
Subsidiary) of the fair market value of the net assets of any Subsidiary of the
Issuer at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Issuer shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if
positive) equal to (a) the Issuer's "Investment" in such Unrestricted Subsidiary
at the time of such redesignation as a Restricted Subsidiary less (b) the
portion (proportionate to the Issuer's equity interest in such Unrestricted
Subsidiary) of the fair market value of the net assets of such Unrestricted
Subsidiary at the time of such redesignation as a Restricted Subsidiary, and
(ii) any
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property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined
in good faith by the Board of Directors.
"Issue Date" means May 12, 1999.
"Issuer" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
indenture securities.
"Issuer Order" means a written order signed in the name of the Issuer by
(i) the Chairman of the Board, Chief Executive Officer, President, Chief
Financial Officer or any Vice President of the Issuer and (ii) the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Issuer, and
delivered to the Trustee.
"Legal Holiday" has the meaning assigned to it in Section 13.08.
"Lien" means any mortgage, pledge, assignment, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement, any sale-leaseback arrangement or any other lease in
the nature thereof and any agreement to give any security interest) and any
option, trust or other preferential arrangement having the practical effect of
any of the foregoing.
"Liquidated Damages" has the meaning assigned to it in the Registration
Rights Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Cash" means, with respect to any Asset Sale, payments in
cash or Cash Equivalents received therefrom, net of bona fide direct costs of
sale, including, but not limited to, (i) income taxes reasonably estimated to be
actually payable as a result of such Asset Sale within two years of the date of
such Asset Sale, (ii) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on, any Indebtedness that is secured by a Lien on
the stock or assets in question and that is required to be repaid under the
terms thereof as a result of such Asset Sale, (iii) out-of-pocket expenses and
fees relating to such Asset Sale (including legal, accounting and investment
banking fees and sales commissions) and (iv) any portion of cash proceeds which
the Issuer determines in good faith should be reserved for post-closing
adjustments or liabilities relating to the Asset Sale retained by the Issuer or
any of its Restricted Subsidiaries, it being understood and agreed that on the
day that all such post-closing adjustments have been finally determined, the
amount (if any) by which the reserved amount in respect of such Asset Sale
exceeds the actual post-closing adjustments, payable by the Issuer or any of its
Restricted Subsidiaries, shall constitute Net Available Cash on such date.
Additionally, in connection with an Asset Sale of Susquehanna Cable Co. and its
direct and indirect Subsidiaries, Net Available Cash shall be reduced by that
amount required to be paid to
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holders or former holders of minority equity interests in Susquehanna Cable Co.
and its direct and indirect Subsidiaries who were not Affiliates of the Issuer
in connection with any sale, purchase or redemption of those interests or
pursuant to the terms of any Indebtedness relating to the deferred payment of
any applicable purchase or redemption price.
"Net Cash Proceeds" with respect to any issuance or sale of Capital Stock,
mean the proceeds of such issuance or sale in the form of cash or Cash
Equivalents net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
"Non-U.S. Person" means any Person who is not a "U.S. person," as defined
in Rule 902(k) under the Securities Act.
"Note Custodian" means, with respect to each Global Note, the custodian
with respect to such Global Note (as appointed by the Depositary), or any
successor Person thereto and shall initially be the Trustee.
"Note Register" has the meaning assigned to it in Section 2.03.
"Notes" has the meaning assigned to it in the recital hereto.
"Obligation" has the meaning assigned to it in Section 11.01.
"Officer" means the Chairman of the Board, the President, Chief Financial
Officer, any Vice President, the Treasurer, or the Secretary of the Issuer or
any Restricted Subsidiary, as the case may be (or, in the case of any Restricted
Subsidiary that is not a corporation, the respective Persons having the duties
and authority correlative to the foregoing officers of a corporation).
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from outside legal counsel
who is reasonably acceptable to the Trustee.
"Paying Agent" has the meaning assigned to it in Section 2.03.
"Payment Blockage Period" has the meaning assigned to it in Section 10.03.
"Permitted Holders" means (i) descendants, and spouses of descendants, of
Xxxxx X. Xxxxxx, Xx. (including any trusts established for the benefit of one or
more such descendants or spouses of such descendants so long as (A) one or more
of such descendants or spouses of such descendants, (B) officers of Susquehanna
Pfaltzgraff Co. or its Subsidiaries or (C) the trust department of a financial
institution is a trustee of any such trusts) and (ii) the ESOP so long as
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executive officers of Susquehanna Pfaltzgraff Co. constitute the majority of the
ESOP Committee under the ESOP.
"Permitted Indebtedness" means each of the following:
(i) Indebtedness of the Issuer and its Restricted Subsidiaries outstanding
on the Issue Date reduced by the amount of any scheduled amortization payments
or mandatory prepayments when actually paid or permanent reductions thereon;
(ii) Indebtedness under the Indenture with respect to the Initial Notes
offered and sold on the Issue Date (together with any Exchange Notes issued in
exchange for such Initial Notes) and under any Guarantees;
(iii) Indebtedness under the Senior Credit Facility (including any
guarantees thereof); provided, that the aggregate principal amount of
Indebtedness outstanding under the Senior Credit Facility at any one time shall
not exceed (a) $450.0 million less (b) the amount of any permanent reductions to
the Senior Credit Facility made in accordance with Section 4.11.
(iv) Interest Rate Protection Agreements of the Issuer covering
Indebtedness of the Issuer or any of its Restricted Subsidiaries and Interest
Rate Protection Agreements of any Restricted Subsidiary covering Indebtedness of
such Restricted Subsidiary; provided, that (a) such Interest Rate Protection
Agreements are entered into to protect the Issuer and its Subsidiaries from
fluctuations in interest rates on Indebtedness incurred either in accordance
with this Indenture or in accordance with the Senior Credit Facility to the
extent the notional principal amount of such Interest Rate Protection Agreements
does not exceed the principal amount of the Indebtedness to which such Interest
Rate Protection Agreements relates and (b) such Interest Rate Protection
Agreements do not increase the Indebtedness of the Issuer and its Restricted
Subsidiaries outstanding other than by reason of fees, indemnities and
compensation payable thereunder;
(v) Indebtedness of a Restricted Subsidiary to the Issuer or to a
Restricted Subsidiary so long as such Indebtedness is held by the Issuer or a
Restricted Subsidiary, in each case subject to no Lien (other than a Lien under
the Senior Credit Facility) held by a Person other than the Issuer or a
Restricted Subsidiary; provided, that if as of any date any Person other than
the Issuer or a Restricted Subsidiary owns or holds any such Indebtedness or
holds a Lien (other than a Lien under the Senior Credit Facility) in respect of
such Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness by the issuer of such Indebtedness;
(vi) Indebtedness of the Issuer to a Restricted Subsidiary so long as such
Indebtedness is held by Restricted Subsidiary, subject to no Lien (other than a
Lien under the Senior Credit Facility); provided, that (a) any Indebtedness of
the Issuer to any Restricted Subsidiary is subordinated, pursuant to a written
agreement, to the Issuer's obligations under the Notes and (b)
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if as of any date any Person other than a Restricted Subsidiary owns or holds
any such Indebtedness or any Person holds a Lien (other than a Lien under the
Senior Credit Facility) in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by
the Issuer;
(vii) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the
case of day-light overdrafts) drawn against insufficient funds in the ordinary
course of business; provided, that such Indebtedness is extinguished within two
Business Days of incurrence;
(viii) Indebtedness of the Issuer or any of its Restricted Subsidiaries
represented by letters of credit for the account of the Issuer or such
Restricted Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of business;
(ix) Refinancing Indebtedness incurred in respect of Indebtedness
originally incurred pursuant to the second sentence of Section 4.08 or pursuant
to this clause (ix) or clause (i) or (iii) of this definition;
(x) Indebtedness of the Issuer or any Restricted Subsidiary incurred in
respect of performance and payment bonds (other than in respect of
Indebtedness);
(xi) Additional Indebtedness of the Issuer and its Restricted Subsidiaries
in an aggregate principal amount not to exceed $10,000,000 at any one time
outstanding for Capitalized Lease Obligations or for purposes of financing the
purchase price or construction cost of equipment, fixtures or similar property;
(xii) Additional Indebtedness of the Issuer and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $15,000,000 at any
one time outstanding; and
(xiii) Indebtedness in the form of guarantees of other Indebtedness
permitted to be incurred by any Restricted Subsidiary under this definition, so
long as such guarantees do not increase the principal amount of such
Indebtedness.
"Permitted Investment" means any of the following:
(i) Investments by the Issuer or any Restricted Subsidiary in any Person
that is a Restricted Subsidiary or will become immediately after such Investment
a Restricted Subsidiary that is wholly-owned by the Person making such
Investment or that will merge or consolidate into the Issuer or a Restricted
Subsidiary;
(ii) Investments in the Issuer by any Restricted Subsidiary; provided,
that any Indebtedness evidencing such Investment is unsecured and subordinated,
pursuant to a written
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agreement, to the Issuer's obligations under the Notes and this Indenture;
(iii) the purchase or redemption by the Issuer or any Restricted
Subsidiary of any minority equity interests in any Restricted Subsidiary;
(iv) Investments in cash and Cash Equivalents;
(v) loans and advances to employees and officers of the Issuer and its
Subsidiaries in the ordinary course of business for bona fide business purposes
not, in the aggregate, in excess of $1,000,000 at any one time outstanding;
(vi) Interest Rate Protection Agreements entered into in the ordinary
course of the Issuer's or its Restricted Subsidiaries' businesses and otherwise
in compliance with this Indenture;
(vii) sales on credit by the Issuer or any Restricted Subsidiary in the
ordinary course of business;
(viii) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;
(ix) consideration other than cash or Cash Equivalents received by the
Issuer or its Restricted Subsidiaries in connection with an Asset Sale made in
compliance with Section 4.11;
(x) other Investments in any Person having an aggregate fair market value
(measured on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (x) since the Issue Date, not to exceed $10,000,000
at any one time outstanding; and
(xi) the ESOP Loan.
"Permitted Liens" means any of the following:
(i) Liens for taxes, assessments or governmental charges or claims either
(a) not delinquent or (b) contested in good faith by appropriate proceedings and
as to which the Issuer or the Subsidiaries shall have set aside on its books
such reserves as may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in
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respect thereof,
(iii) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, including any Lien securing letters of credit issued in the
ordinary course of business consistent with past practice in connection
therewith, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default so long as a
stay of execution has been entered or such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(v) easements, leases, subleases, rights-of-way zoning restrictions and
other similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the business of
the Issuer or any of its Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided, that such Liens do not extend to any property or assets
which is not leased property subject to such Capitalized Lease Obligation;
(vii) purchase money Liens to finance property or assets of the Issuer or
a Restricted Subsidiary acquired in the ordinary course of business; provided,
that (a) the related purchase money Indebtedness shall not exceed the cost of
such property or assets and shall not be secured by any property or assets of
the Issuer or any Restricted Subsidiary other than the property and assets so
acquired and (b) the Lien securing such Indebtedness shall be created within 90
days of such acquisition;
(viii) Liens upon specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating to such
letters of credit and products and proceeds thereof,
(x) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements or appeal or
similar bonds of the Issuer or a Restricted Subsidiary, including rights of
offset and set-off,
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(xi) Liens securing Senior Indebtedness, including Indebtedness under the
Senior Credit Facility;
(xii) Liens existing on the Issue Date and Liens to secure any Refinancing
Indebtedness which is incurred to refinance any Indebtedness which has been
secured by a Lien permitted under Section 4.15 and which Indebtedness has been
incurred in accordance with Section 4.08; provided, that such new Liens (a) are
no less favorable to the Holders of Notes and are not more favorable to the
lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being refinanced and (b) do not extend to any property or assets
other than the property or assets securing the Indebtedness refinanced or
replaced by such Refinancing Indebtedness;
(xiii) Liens securing Acquired Indebtedness incurred in accordance with
the second sentence of Section 4.08; provided, that (a) such Liens secured such
Acquired Indebtedness at the time of and prior to the incurrence of such
Acquired Indebtedness by the Issuer or a Restricted Subsidiary and were not
granted in connection with, or in anticipation of the incurrence of such
Acquired Indebtedness by the Issuer or a Restricted Subsidiary and (b) such
Liens do not extend to or cover any property or assets of the Issuer or any
Restricted Subsidiary other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Issuer or a Restricted Subsidiary and are no more favorable
to the lienholders than the Liens securing the Acquired Indebtedness prior to
the incurrence of such Acquired Indebtedness by the Issuer or a Restricted
Subsidiary; and
(xiv) Liens securing Indebtedness incurred in connection with the purchase
or redemption of minority equity interests in any Restricted Subsidiary so long
as such Liens (a) are only in favor of the holder of the equity interests being
purchased or redeemed and (b) encumber only those equity interests purchased or
redeemed.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Post-Petition Interest" means all interest and fees and other obligations
accrued or accruing after the commencement of any Insolvency or Liquidation
Proceeding (and interest and fees and other obligations that would accrue but
for the commencement of any Insolvency or Liquidation Proceeding) in accordance
with and at the contract rate (including any rate applicable upon default)
specified in the agreement or instrument creating, evidencing or governing any
Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim
for such interest and fees and other obligations is allowed as a claim in such
Insolvency or Liquidation Proceeding.
"Preferred Stock" means, as applied to the Capital Stock of any
corporation, Capital
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Stock of any class or classes (however designated) which is preferred as to the
payment of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.
"Private Placement Legend" has the meaning assigned to it in Section 2.01.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, tangible or
intangible.
"Public Equity Offering" means an underwritten primary public offering of
any class of common stock of the Issuer or any of its Subsidiaries pursuant to
an effective registration statement under the Securities Act.
"Public Market" means any time after (i) an underwritten Public Equity
Offering of the Issuer or any of its Subsidiaries has been consummated and (ii)
at least 10% of the total issued and outstanding common stock of the Issuer or
such Subsidiary (as determined on a Fully Diluted basis) has been distributed by
means of an effective registration statement under the Securities Act or sales
pursuant to Rule 144 under the Securities Act.
"Purchase Agreement" means the purchase agreement relating to the Notes,
dated May 6, 1999, among the Issuer and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Record Date" means, for the interest payable on any Interest Payment
Date, the date specified in Section 2.12 hereof.
"Redemption Date" means, when used with respect to any Note or part
thereof to be redeemed hereunder, the date fixed for redemption of such Notes
pursuant to the terms of the Notes and this Indenture.
"Redemption Price" means, when used with respect to any Note or part
thereof to be redeemed hereunder, the price fixed for redemption of such Note
pursuant to the terms of the Notes and this Indenture, plus accrued and unpaid
interest thereon, if any, and Liquidated Damages, if any, to the Redemption
Date.
"Refinancing Indebtedness" means any Indebtedness of the Issuer or any of
its Restricted Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Issuer or any of its Restricted Subsidiaries; provided that:
(i) the principal amount of such Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith),
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(ii) such Refinancing Indebtedness has a Weighted Average Life to Maturity equal
to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded, (iii) if
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded, and (iv) such Indebtedness is incurred either by the
Issuer or by the Restricted Subsidiary of the Issuer that is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Registered Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Registrar" has the meaning assigned to it in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement
relating to the Notes, dated May 12, 1999 among the Issuer and the Initial
Purchasers, in substantially the form of Exhibit J hereto.
"Regulation S" means Regulation S under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Regulation S Certification" has the meaning assigned to it in Section
2.01.
"Regulation S Global Note" has the meaning assigned to it in Section 2.01.
"Regulation S Permanent Global Note" has the meaning assigned to it in
Section 2.01.
"Regulation S Temporary Global Note" has the meaning assigned to it in
Section 2.01.
"Related Business" means the businesses of the Issuer and the Restricted
Subsidiaries on the Issue Date and any business reasonably related, ancillary or
complementary to the businesses of the Issuer and the Restricted Subsidiaries on
the Issue Date.
"Replacement Assets" has the meaning assigned to it in Section 4.11.
"Representative" means any trustee, agent or representative (if any) for
an issue of Senior Indebtedness of the Issuer.
"Restricted Payment" with respect to any Person means (i) the declaration
or payment of any dividends or any other distributions in respect of its Capital
Stock (including any payment in connection with any merger or consolidation
involving such Person) or similar payment to the
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direct or indirect holders of its Capital Stock (other than (a) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (b) dividends or distributions payable solely to the Issuer or a
Restricted Subsidiary), (ii) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Issuer or any Restricted
Subsidiary held by any Person (other than the Issuer or a Restricted
Subsidiary), or any warrants, rights or options to acquire shares of any class
of such Capital Stock (other than (x) Permitted Investments and (y) purchases,
redemptions, other acquisitions or other retirements in which the price is
payable solely in Capital Stock (other than Disqualified Stock)), (iii) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) the making of any Investment in any Person (other than a Permitted
Investment).
"Restricted Period" means, with respect to any Initial Notes offered and
sold to Non-U.S. Persons in reliance on Regulation S, the 40 consecutive days
beginning on and including the later of (A) the day on which such Initial Notes
are offered to persons other than distributors (as defined in Regulation S under
the Securities Act) and (B) the date on which such Initial Notes are originally
issued.
"Restricted Subsidiary" means any Subsidiary of the Issuer that is not an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Rule 144A Global Note" has the meaning assigned to it in Section 2.01(c).
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the Credit Agreement, dated as of May 12,
1999 among the Issuer, the lenders who are or may become party thereto and First
Union National Bank, as administrative agent, pursuant to which certain
financial institutions agreed to make loans and issue letters of credit,
together with the pledges, guarantees and other documents related thereto
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as such agreements may be amended or modified, refinanced, supplemented or
restated from time to time, including any agreement increasing the amount,
extending the maturity of, refinancing or otherwise restructuring 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.
"Senior Indebtedness" means, with respect to any Person, (i) Indebtedness
(which for this purpose shall include letters of credit and Interest Rate
Protection Agreements and other types of credit referred to in the Senior Credit
Facility) of such Person, whether outstanding on the Issue Date or thereafter
incurred, and (ii) accrued and unpaid interest and fees and other obligations
(including Post-Petition Interest) in respect of (A) indebtedness of such Person
for money borrowed, letters of credit and Interest Rate Protection Agreements
and other types of credit referred to in the Senior Credit Facility and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable unless, in the
instrument creating or evidencing any of the obligations referred to in clauses
(i) or (ii) or pursuant to which any such obligations are outstanding, it is
provided that such obligations are subordinate in right of payment to the Notes;
provided, however, that Senior Indebtedness shall not include (1) any obligation
of such Person to any of its Subsidiaries, (2) any liability for Federal, state,
local or other taxes owed or owing by such Person, (3) any accounts payable or
other liability to trade creditors arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness of such Person (and any accrued and unpaid interest in respect
thereof) which is subordinate or junior in any respect to any other Indebtedness
or other obligation of such Person (other than Indebtedness incurred in
connection with the purchase or redemption of minority equity interests in any
Restricted Subsidiary from non-Affiliates of the Issuer) or (5) that portion of
any Indebtedness which at the time of incurrence is incurred in violation of
Section 4.08.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Special Record Date" means a date fixed by the Trustee pursuant to
Section 2.12 for the payment of Defaulted Interest.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Issuer or a
Restricted Subsidiary of the Issuer (whether outstanding on the Issue Date or
thereafter incurred) which is subordinate or junior in right of payment to the
Notes or any Guarantees that may be issued pursuant to a written agreement to
that effect.
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"Subordinated Reorganization Securities" has the meaning assigned to it
in Section 10.02.
"Subsidiary" means, in respect of any Person, any corporation, limited
liability company, association, partnership or other business entity of which
more than fifty percent (50%) of the total Voting Stock or other interests
(including partnership and membership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"Successor Company" has the meaning assigned to it in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer in the Corporate Trust Office of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code in
effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Issuer (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien on any property of, the
Issuer or any other Subsidiary of the Issuer that is not a Subsidiary of the
Subsidiary to be so designated; provided, that (a) either (1) the Subsidiary to
be so designated has total assets of $1,000 or less or (2) if such Subsidiary
has assets greater than $1,000, such designation would be permitted under
Section 4.09 and (b) such Subsidiary to be so designated and each of its
Subsidiaries has not at the time of such designation, and does not thereafter,
incur any Indebtedness pursuant to which the lender has recourse to any of the
assets or properties of the Issuer or any of its Restricted Subsidiaries. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, that immediately after giving effect to such designation
(x) the Issuer could incur $1.00 of additional Indebtedness pursuant to the
second sentence of Section 4.08 and (y) no Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced by
the Issuer to the Trustee
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by promptly filing with the Trustee a copy of the board resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"U.S. Government Obligation" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership or member interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payments at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes; "indenture security holder"
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 Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
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(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate or
junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(g) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be shown
on a balance sheet of the issuer dated such date prepared in accordance with
GAAP and accretion of principal on such security shall be deemed to be the
incurrence of Indebtedness;
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater; and
(i) all references to the date the Notes were originally issued shall
refer to the Issue Date or the date the Add-On Notes were originally issued, as
applicable.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating.
(a) Initial Notes (except for Add-On Notes, which may differ as
provided in Section 2.13) and the certificate of authentication of the Trustee
thereon shall be substantially in the form of Exhibit A or Exhibit B hereto, as
applicable, which are hereby incorporated in and expressly made a part of this
Indenture. The Exchange Notes and the certificate of authentication of the
Trustee thereon shall be substantially in the form of Exhibit C or Exhibit D
hereto, as applicable, which are hereby incorporated in and expressly made a
part of this Indenture.
(b) The Notes may have such letters, numbers or other marks of
identification and such legends and endorsements, stamped, printed, lithographed
or engraved thereon, (i) as the Issuer may deem appropriate and as are not
inconsistent with the provisions of this Indenture, (ii)
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as may be required to comply with this Indenture, any law, any rule of the
Depositary or any rule of any securities exchange on which the Notes may be
listed and (iii) as may be necessary to conform to customary usage. Each Note
shall be dated the date of its authentication by the Trustee. The Notes shall be
issued only in fully registered form, without coupons, in denominations of
$1,000 and integral multiples thereof; provided that Initial Certificated Notes
transferred to Institutional Accredited Investors shall be subject to a minimum
denomination of $250,000. Definitive Notes shall be typed, printed, lithographed
or engraved or produced by any combination of such methods or produced in any
other manner permitted by the rules of any securities exchange on which such
Notes may be listed, all as determined by the officers of the Issuer executing
such Notes, as evidenced by their execution of such Notes.
(c) Initial Notes offered and sold to QIBs in the United States of
America in reliance on Rule 144A will be issued in the form of a permanent
global Note, without interest coupons, substantially in the form of Exhibit A
(the "Rule 144A Global Note"). The Rule 144A Global Note will be duly executed
by the Issuer, authenticated by the Trustee as herein provided, registered in
the name of the Depositary or its nominee and deposited with the Trustee, as
Note Custodian. The rule 144A Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Rule 144A Global Note may from time to time be increased
or decreased by adjustments made to Schedule A thereof, as provided herein.
(d) Initial Notes offered and sold to Non-U.S. Persons in reliance on
Regulation S will be issued in the form of a temporary global Note, in fully
registered form without interest coupons, substantially in the form set forth in
Exhibit A (the "Regulation S Temporary Global Note"). All beneficial interests
in the Regulation S Temporary Global Note will be exchanged for beneficial
interests in a single permanent global Note, in fully registered form without
interest coupons (the "Regulation S Permanent Global Note," and together with
the Regulation S Temporary Global Note, the "Regulation S Global Note") on or
after the expiration of the Restricted Period upon the receipt by the Trustee or
its agent of a written certification from the Depositary that it or its agents
have received certification of Non-U.S. Person beneficial ownership of 100% of
the aggregate principal amount of the Regulation S Temporary Global Note (the
"Regulation S Certification"). Upon receipt by the Trustee or its agent of
Regulation S Certification, the Issuer shall execute and, upon receipt of an
Issuer Order for authentication, the Trustee shall authenticate and deliver to
the Note Custodian the Regulation S Permanent Global Note.
Each Regulation S Global Note will be duly executed by the Issuer,
authenticated by the Trustee as herein provided, registered in the name of the
Depositary or its nominee and deposited with the Trustee, as Note Custodian. The
Regulation S Global Note may be represented by more than one certificate, if so
required by the Depositary's rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the
Regulation S Global Note may from time to time be increased or decreased by
adjustments to
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Schedule A thereof as provided herein.
(e) Initial Notes offered and sold or otherwise transferred to
Institutional Accredited Investors in the United States of America will be
issued in non-global, fully registered form, without interest coupons,
substantially in the form set forth in Exhibit B, duly executed by the Issuer
and authenticated by the Trustee as herein provided (together with interests in
the Initial Global Notes that are subsequently transferred or exchanged pursuant
to Sections 2.07(b)(iii), 2.07(b)(vii), 2.07(b)(ix), 2.07(b)(x) and 2.07(c), the
"Initial Certificated Notes.") Upon such issuance, the trustee shall register
such Initial Certificated Notes in the name of the beneficial owner or owners of
such Notes (or the nominee of such beneficial owner or owners) and deliver the
certificates for such Initial Certificated Notes to, or as directed by, the
respective beneficial owner or owners.
(f) If the Initial Global Notes are tendered in a Registered Exchange
Offer, they shall all be exchanged for a single, permanent global note in
definitive, fully registered form, without coupons, substantially in the form
set forth in Exhibit C hereto and shall bear the legends set forth in Section
2.01(g)(ii) and Section 2.01(g)(iv) hereof (the "Exchange Global Note"). Upon
issuance, such Exchange Global Note shall be registered in the name of the
Depositary or its nominee, duly executed by the Issuer and authenticated by the
Trustee as herein provided and deposited with the Trustee, as Note Custodian.
The Exchange Global Note may be represented by more than one certificate, if so
required by the Depositary's rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the
Exchange Global Note may from time to time be increased or decreased by
adjustments to Schedule A thereof as provided herein.
If Initial Certificated Notes are tendered in a Registered Exchange
Offer, they will be exchanged for Certificated Notes in definitive, fully
registered form, without coupons and without legends, substantially in the form
set forth in Exhibit D hereto ("Exchange Certificated Notes"). Upon issuance,
any such Exchange Certificated Note shall be duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided.
At the option of the Holder thereof, Exchange Notes may be held either
in the form of a beneficial interest in the Exchange Global Note or as Exchange
Certificated Notes.
(g) The following legends shall appear on each Global Note and each
Certificated Note as indicated below:
(i) Except as provided in Section 2.07(a) hereof, each Initial
Global Note and Initial Certificated Note shall bear the following legend (the
"Private Placement Legend") on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY
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NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7)
UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX
XXX, (X) XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR
THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE)
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
NOTE WITHIN TWO YEARS AFTER ORIGINAL ISSUANCE OF THIS NOTE, IF
THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM
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BY REGULATION S UNDER THE ACT.
(ii) Each Global Note shall bear the following legend on the
face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO SUSQUEHANNA MEDIA CO. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(iii) The Initial Global Notes shall bear the following legend
on the face thereof:
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.07 OF THE INDENTURE, DATED AS OF MAY
12, 1999 BETWEEN SUSQUEHANNA MEDIA CO., AS ISSUER, AND CHASE
MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE,
PURSUANT TO WHICH THIS NOTE WAS ISSUED.
(iv) The Exchange Global Note shall bear the following legend
on the face thereof:
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE.
SECTION 2.02. Execution and Authentication.
The aggregate principal amount of Notes outstanding at any time shall not exceed
$250,000,000 except as provided in Section 2.08 hereof. The Notes shall be
executed on behalf of the Issuer by its Chief Executive Officer, President,
Chief Operating Officer, Treasurer or any Vice President,
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and shall be attested by the Issuer's Secretary or one of its Assistant
Secretaries, in each case by manual or facsimile signature. The Notes shall be
authenticated by manual signature of an authorized signatory of the Trustee and
shall not be valid for any purpose unless so authenticated.
In case any officer of the Issuer whose signature shall have been
placed upon any of the Notes shall cease to be such officer of the Issuer before
authentication of such Notes by the Trustee and the issuance and delivery
thereof, such Notes may, nevertheless, be authenticated by the Trustee and
issued and delivered with the same force and effect as though such Person had
not ceased to be such an officer of the Issuer.
The Trustee shall, upon receipt of an Issuer Order requesting such
action, authenticate (a) Initial Notes for original issue on the Issue Date in
an aggregate principal amount of $150,000,000, (b) Exchange Notes for issue
pursuant to a Registered Exchange Offer for such Initial Notes in a principal
amount equal to the principal amount of Initial Notes exchanged in such
Registered Exchange Offer, or (c) Add-On Notes in a maximum aggregate principal
amount of $100,000,000, and (d) if applicable, the related Exchange Notes for
any such Add-On Notes. Such Issuer Order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated and shall
further provide instructions concerning registration, amounts for each Holder
and delivery. Except as permitted by Sections 2.13 and 2.14(b), all Notes
originally issued on the Issue Date and all Add-On Notes shall be identical in
all respects other than issue dates, the dates from which interest accrues and
any other changes relating thereto. Notwithstanding anything to the contrary
contained in this Indenture, all Notes issued under this Indenture shall vote
and consent together on all matters as one class and no series of Notes will
have the right to vote or consent as a separate class on any matter.
Upon the occurrence of any event specified in Section 2.07(c) hereof,
the Issuer shall execute and the Trustee shall authenticate and make available
for delivery to each beneficial owner identified by the Depositary, in exchange
for such beneficial owner's interest in the Initial Global Notes or Exchange
Global Note, as the case may be, Initial Certificated Notes or Exchange
Certificated Notes, as the case may be, representing Notes theretofore
represented by the Initial Global Notes or Exchange Global Note, as the case may
be.
A Note shall not be valid or entitled to any benefits under this
Indenture or obligatory for any purpose unless executed by the Issuer and
authenticated by the manual signature of one of the authorized signatories of
the Trustee as provided herein. Such signature upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered under this Indenture and is entitled to the benefits of this
Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuer to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate the Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Any authenticating agent of the
Trustee shall have the same rights hereunder as any Registrar or Paying Agent.
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Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer,
and the Issuer shall deliver such Note to the Trustee for cancellation as
provided in Section 2.11 together with a written statement (which need not be
accompanied by an Opinion of Counsel) stating that such Note has never been
issued and sold by the Issuer, for all purposes of this Indenture such Note
shall be deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
SECTION 2.03. Registrar and Paying Agent.
The Issuer shall maintain, pursuant to Section 4.02 hereof, an office or agency
where the Notes may be presented for registration of transfer or for exchange
(the "Registrar"), an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served.
The Issuer shall cause to be kept at such office a register (the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuer shall provide for the registration of Notes and of transfers of Notes
entitled to be registered or transferred as provided herein. The Trustee, at its
Dallas, Texas office, is initially appointed Registrar for the purpose of
registering Notes and transfers of Notes as herein provided. The Issuer may,
upon written notice to the Trustee, change the designation of the Trustee as
Registrar and appoint another Person to act as Registrar for purposes of this
Indenture. If any Person other than the Trustee acts as Registrar, the Trustee
shall have the right at any time, upon reasonable notice, to inspect or examine
the Note Register and to make such inquiries of the Registrar as the Trustee
shall in its discretion deem necessary or desirable in performing its duties
hereunder.
The Issuer shall enter into an appropriate agency agreement with any
Person designated by the Issuer as Registrar or Paying Agent that is not a party
to this Indenture, which agreement shall incorporate the provisions of the TIA
and shall implement the provisions of this Indenture that relate to such
Registrar or Paying Agent. Prior to the designation of any such Person, the
Issuer shall, by written notice (which notice shall include the name and address
of such Person), inform the Trustee of such designation. The Trustee, at its
Dallas, Texas office, is initially appointed Paying Agent under this Indenture.
If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
Subject to Section 2.07 hereof, upon surrender for registration of
transfer of any Note at an office or agency of the Issuer designated for such
purpose, the Issuer shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Initial Notes or Exchange Notes, as the case may be, of any
authorized denomination or denominations, of like tenor and aggregate principal
amount, all as requested by the transferor.
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Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer, the Trustee or the Registrar) be
duly endorsed, or be accompanied by a duly executed instrument of transfer in
form satisfactory to the Issuer, the Trustee and the Registrar, by the Holder
thereof or such Holder's attorney duly authorized in writing.
SECTION 2.04. Paying Agent To Hold Money in Trust.
On or prior to each due date of the principal, premium, if any, or any payment
of interest or Liquidated Damages, if any, with respect to any Note, the Issuer
shall deposit with the Paying Agent a sum sufficient to pay such principal,
premium, if any, or interest or Liquidated Damages, if any, when so becoming
due.
The Issuer shall require each Paying Agent (other than the Trustee) to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by such Paying Agent for the payment of
principal, premium, if any, or interest or Liquidated Damages, if any, with
respect to the Notes, shall notify the Trustee of any default by the Issuer in
making any such payment and at any time during the continuance of any such
default, upon the written request of the Trustee, shall forthwith pay to the
Trustee all sums held in trust by such Paying Agent.
The Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section 2.04, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Issuer shall furnish to the Trustee at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Issuer shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Global Notes.
(a) So long as a Global Note is registered in the name of the Depositary or its
nominee, members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary or the Trustee as its custodian, and the
Depositary may be treated by the Issuer, the Guarantors, if any, the Trustee and
any agent of the Issuer, the Guarantors, if any, or the Trustee as the absolute
owner of such Global Note for all purposes. Notwithstanding the foregoing,
nothing herein shall (i) prevent the Issuer, the Guarantors, if any, the Trustee
or any agent of the Issuer, the Guarantors, if any, or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or (ii) impair, as between the Depositary and its Agent Members,
the
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operation of customary practices governing the exercise of the rights of a
Holder.
(b) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in such Global Note through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
(c) Whenever, as a result of an optional redemption of Notes by the
Issuer, a Change of Control Offer, an Asset Sale Offer, a Registered Exchange
Offer or an exchange pursuant to the provisions of Section 2.07(b) or Section
2.07(c) hereof, a Global Note is redeemed, repurchased or exchanged in part,
such Global Note shall be surrendered by the Holder thereof to the Trustee who
shall cause an adjustment to be made to Schedule A thereof so that the principal
amount of such Global Note will correctly reflect such redemption, repurchase or
exchange and shall thereafter return such Global Note to such Holder, provided
that each such Global Note shall be in a principal amount of $1,000 or an
integral multiple thereof.
SECTION 2.07. Transfer and Exchange
(a) By its acceptance of any Initial Note represented by a certificate bearing
the Private Placement Legend, each Holder of, and beneficial owner of an
interest in, such Initial Note acknowledges the restrictions on transfer of such
Initial Note set forth in the Private Placement Legend and agrees that it will
transfer such Initial Note only in accordance with the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of an Initial Note
not bearing the Private Placement Legend, the Trustee shall deliver an Initial
Note or Initial Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of an Initial Note bearing the Private
Placement Legend, the Trustee shall deliver an Initial Note or Initial Notes
bearing the Private Placement Legend, unless such legend may be removed from
such Note as provided in this Section 2.07(a). If the Private Placement Legend
has been removed from an Initial Note, as provided herein, no other Initial Note
issued in exchange for all or any part of such Initial Note shall bear such
legend, unless the Issuer has reasonable cause to believe that such other
Initial Note represents a "restricted security" within the meaning of Rule 144
and instructs the Trustee in writing to cause a legend to appear thereon. Each
Initial Note shall bear the Private Placement Legend unless and until:
(i) a transfer of such Initial Note is made pursuant to an effective
Shelf Registration Statement, in which case the Private Placement
Legend shall be removed from such Initial Note so transferred at the
request of the Holder; or
(ii) there is delivered to the Issuer such satisfactory evidence, which
may include an opinion of independent counsel, as may reasonably be
requested by the Issuer confirming that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers of such Initial Note will not violate the registration and
prospectus delivery requirements of the Securities Act; provided, that
the Trustee shall not be required to determine (but may rely on a
determination made by the Issuer with respect
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to) the sufficiency of any such evidence; and upon provision of such
evidence, the Trustee shall authenticate and deliver in exchange for
such Initial Note, an Initial Note or Initial Notes (representing the
same aggregate principal amount of the Initial Note being exchanged)
without such legend.
(b) The following provisions of this paragraph (b) are applicable only
to Initial Notes bearing the Private Placement Legend:
(i) if the Holder of one or more Initial Certificated Notes wishes to
transfer such Initial Certificated Note(s) (or a portion thereof) to a
QIB pursuant to Rule 144A, (x) upon receipt by the Trustee, as
Registrar, of:
(A) such Initial Certificated Note(s), duly endorsed as
provided herein,
(B) written instructions from such Holder directing the
Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal to the
principal amount (or portion thereof) of such Initial
Certificated Note(s) to be transferred, specifying the
participant account at the Depositary to be credited with such
increase, and, if the entire principal amount of such Initial
Certificated Note(s) is not being transferred, to issue one or
more Initial Certificated Notes to the transferor in a
principal amount equal to the principal amount not
transferred, and
(C) a certificate in the form of Exhibit E duly executed by
the transferor,
and (y) subject to the rules and procedures of the Depositary, the
Trustee, as Registrar, shall:
(1) cancel the Initial Certificated Note(s) delivered to it;
(2) increase the Rule 144A Global Note by adjustment to
Schedule A thereto and credit or cause to be credited the
specified participant account at the Depositary in accordance
with the foregoing; and
(3) if applicable, authenticate and deliver to the transferor
one or more Initial Certificated Notes in accordance with the
foregoing.
(ii) If the Holder of one or more Initial Certificated Notes wishes to
transfer such Initial Certificated Note(s) (or any portion thereof) to
an Institutional Accredited Investor, upon receipt by the Trustee, as
Registrar, of:
(A) such Initial Certificated Note(s), duly endorsed as
provided herein;
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(B) written instructions from such Holder directing the
Trustee, as Registrar, to issue one or more Initial
Certificated Notes in the amounts specified to the transferee
and, if the entire principal amount of such Initial
Certificated Note(s) is not being transferred, the transferor
in an amount equal to the principal amount not transferred;
and
(C) a certificate in the form of Exhibit F duly executed by
the transferor and a certificate in the form of Exhibit G duly
executed by the transferee,
the Trustee, as Registrar, shall:
(1) cancel the Initial Certificated Note(s) delivered to it;
(2) authenticate and deliver to the transferee Initial
Certificated Note(s) in a principal amount equivalent to the
principal amount of the Initial Certificated Notes being
transferred in accordance with the foregoing; and
(3) if applicable, authenticate and deliver to the transferor
one or more Initial Certificated Notes in accordance with the
foregoing.
(iii) If the Holder of a beneficial interest in a Rule 144A Global Note
wishes to transfer such interest (or a portion thereof) to an
Institutional Accredited Investor, (x) upon receipt by the Trustee, as
Registrar, of:
(A) written instructions from the Holder of the Rule 144A
Global Note directing the Trustee, as Registrar, to issue one
or more Initial Certificated Notes in the amounts specified to
the transferee, debit or cause to be debited an equivalent
amount of beneficial interest in the Rule 144A Global Note and
specifying the participant account at the Depositary to be
debited with such decrease, and
(B) a certificate in the form of Exhibit F from the transferor
and a certificate in the form of Exhibit G from the transferee
and (y) subject to the rules and procedures of the Depositary, the
Trustee, as Registrar, shall:
(1) authenticate and deliver to the transferee Initial
Certificated Note(s) in a principal amount equivalent to the
principal amount of the beneficial interest in the Rule 144A
Global Note being transferred in accordance with the foregoing
and
(2) decrease the Rule 144A Global Note by adjustment to
Schedule A thereof
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and debit or cause to be debited the specified participant
account at the Depositary for such amount in accordance with
the foregoing.
(iv) If the Holder of a beneficial interest in a Rule 144A Global Note
wishes to transfer such interest (or any portion thereof) to a Non-U.S.
Person pursuant to Regulation S, (x) upon receipt by the Trustee, as
Registrar, of:
(A) written instructions from the Holder of the Rule 144A
Global Note directing the Trustee, as Registrar, to credit or
cause to be credited a beneficial interest in the Regulation S
Global Note equal to the principal amount of the beneficial
interest in the Rule 144A Global Note to be transferred,
specifying the participant accounts with the Depositary to be
credited and debited and
(B) a certificate in the form of Exhibit H from the transferor
and a certificate in the form of Exhibit I from the transferee
and (y) subject to the rules and procedures of the Depositary, the
Trustee, as Registrar, shall:
(1) increase the Regulation S Global Note by adjustment to
Schedule A thereof and credit or cause to be credited the
specified participant account at the Depositary for such
amount in accordance with the foregoing, and
(2) decrease the Rule 144A Global Note for such amount by
adjustment to Schedule A thereof and debit or cause to be
debited the specified participant account at the Depositary
for such amount in accordance with the foregoing.
(v) If the Holder of one or more Initial Certificated Notes wishes to
transfer such Initial Certificated Note(s) (or any portion thereof) to
a Non-U.S. Person pursuant to Regulation S, (x) upon receipt by the
Trustee, as Registrar, of:
(A) such Initial Certificated Note(s), duly endorsed as
provided herein,
(B) written instructions from such Holder directing the
Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Regulation S Global Note equal to
the principal amount (or portion thereof) of such Initial
Certificated Note(s) to be transferred, specifying the
participant account at the Depositary to be credited with such
increase, and, if the entire principal amount of such Initial
Certificated Note(s) is not being transferred, to issue one or
more Initial Certificated Notes to the transferor in a
principal amount equal to the principal amount not
transferred, and
(C) a certificate in the form of Exhibit H from the transferor
and a certificate
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in the form of Exhibit I from the transferee
and (y) subject to the rules and procedures of the Depositary, the
Trustee, as Registrar, shall:
(1) cancel the Initial Certificated Notes delivered to it;
(2) increase the Regulation S Global Note by adjustment to
Schedule A thereof and credit or cause to be credited the
specified participant account at the Depositary in accordance
with the foregoing; and
(3) if applicable, authenticate and deliver to the transferor
one or more Initial Certificated Notes in accordance with the
foregoing.
(vi) if the Holder of a beneficial interest in the Regulation S
Permanent Global Note wishes to transfer such interest (or any portion
thereof) to a QIB pursuant to Rule 144A, (x) upon receipt by the
Trustee, as Registrar, of:
(A) written instructions from the Holder of the Regulation S
Permanent Global Note directing the Trustee, as Registrar, to
credit or cause to be credited a beneficial interest in the
Rule 144A Global Note equal to the principal amount of the
beneficial interest in the Regulation S Permanent Global Note
to be transferred, specifying the participant accounts at the
Depositary to be credited and debited and
(B) a certificate in the form of Exhibit E duly executed by
the transferor,
and (y) in accordance with the rules and procedures of the Depositary,
the Trustee, as Registrar, shall:
(1) increase the Rule 144A Global Note by adjustment to
Schedule A thereto and credit or cause to be credited the
specified participant account at the Depositary for such
amount in accordance with the foregoing and
(2) decrease the Regulation S Permanent Global Note by
adjustment to Schedule A thereof and debit or cause to be
debited the specified participant account at the Depositary
for such amount in accordance with the foregoing.
(vii) if the Holder of a beneficial interest in the Regulation S
Permanent Global Note wishes to transfer such interest (or a portion
thereof) to an Institutional Accredited Investor, (x) upon receipt by
the Trustee, as Registrar, of:
(A) written instructions from the Holder of the Regulation S
Permanent Global
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Note directing the Trustee, as Registrar, to issue one or more
Initial Certificated Notes in specified amounts in the name of
the transferee, debit or cause to be debited an equivalent
amount of beneficial interest in the Regulation S Permanent
Global Note and specifying the participant account with the
Depositary to be debited with such decrease and
(B) a certificate in the form of Exhibit F from the transferor
and a certificate in the form of Exhibit G from the
transferee,
and (y) subject to the rules and procedures of the Depositary, the
Trustee, as Registrar, shall:
(1) authenticate and deliver to the transferee Initial
Certificated Note(s) in an equivalent amount to the beneficial
interest in the Regulation S Permanent Global Note being
transferred in accordance with the foregoing and
(2) decrease the Regulation S Permanent Global Note by
adjustment to Schedule A thereto and debit or cause to be
debited the specified participant account for such amount at
the Depositary in accordance with the foregoing.
(viii) beneficial interests in the Regulation S Temporary Global Note
cannot be transferred to anyone but Non-U.S. Persons in accordance with
the rules and procedures of the Depositary.
(ix) (A) If a Holder of a beneficial interest in an Initial Global Note
wishes at any time to transfer its interest in such Initial Global Note
pursuant to another applicable exemption from the registration
requirements of the Securities Act, such Holder may, subject to the
rules and procedures of the Depositary, cause the exchange of such
interest for one or more Initial Certificated Notes of any authorized
denomination or denominations and of the same aggregate principal
amount. Upon receipt by the Trustee, as Registrar, of (I) written
instructions from the Holder of such Initial Global Note directing the
Trustee, as Registrar, to authenticate and deliver one or more Initial
Certificated Notes of the same aggregate principal amount as the
beneficial interest in the Initial Global Note to be exchanged, such
instructions to contain the name or names of the designated transferee
or transferees, the authorized denomination or denominations of the
Initial Certificated Notes to be so issued and appropriate delivery
instructions and (II) such certifications, legal opinions or other
information as the Issuer or the Trustee may reasonably require to
confirm that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of
the Securities Act, then the Trustee, as Registrar, will reduce such
Initial Global Note by the aggregate principal amount of the beneficial
interest therein to be exchanged by adjustment to Schedule A thereof
and debit or cause to be debited from the specified participant account
in accordance with the foregoing and concurrently with such reduction
and debit the
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Issuer shall execute, and the Trustee shall authenticate and deliver,
one or more Initial Certificated Notes of the same aggregate principal
amount in accordance with the foregoing; and
(B) if a Holder of one or more Initial Certificated Notes
wishes to transfer such Initial Certificated Note(s) pursuant to
another applicable exemption from the registration requirements of the
Securities Act, such Holder may, subject to the restrictions on
transfer set forth herein and in such Initial Certificated Note(s),
cause the exchange of such Initial Certificated Note(s) for one or more
Initial Certificated Notes of any authorized denomination or
denominations and of the same aggregate principal amount. Upon receipt
by the Trustee, as Registrar, of (I) such Initial Certificated Note(s),
duly endorsed as provided herein, (II) written instructions from such
Holder directing the Trustee, as Registrar, to authenticate and deliver
one or more Initial Certificated Notes of the same aggregate principal
amount as the Initial Certificated Note(s) to be exchanged, such
instructions to contain the name or names of the designated transferee
or transferees, the authorized denomination or denominations of the
Initial Certificated Note(s) to be so issued and appropriate delivery
instructions and (III) such certifications, legal opinions or other
information as the Issuer or the Trustee may reasonably require to
confirm that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of
the Securities Act, then the Trustee, as Registrar, shall cancel or
cause to be canceled such Initial Certificated Note(s) and concurrently
therewith, the Issuer shall execute, and the Trustee shall authenticate
and deliver, one or more Initial Certificated Notes of the same
aggregate principal amount, in accordance with the foregoing.
(x) If the Holder of a beneficial interest in an Initial Global Note
(other than the holder of a beneficial interest in the Regulation S
Temporary Global Note) wishes to exchange such interest for an Initial
Certificated Note evidencing such interest, such Holder may, subject to
the rules and procedures of the Depositary, cause the exchange of such
interest for one or more Initial Certificated Notes of any authorized
denomination or denominations and of the same aggregate principal
amount. Upon receipt by the Trustee, as Registrar, of written
instructions from the Holder directing the Trustee, as Registrar, to
authenticate and deliver one or more Initial Certificated Notes of the
same aggregate principal amount as the beneficial interest in the
Initial Global Note to be transferred, such instructions to contain the
authorized denomination or denominations of the Initial Certificated
Notes to be so issued and appropriate delivery instructions, then the
Trustee, as Registrar, will reduce such Initial Global Note by the
aggregate principal amount of the beneficial interest therein to be
transferred by adjustment to Schedule A thereof and to debit or cause
to be debited from the specified participant account in accordance with
the foregoing, and concurrently with such reduction the Issuer shall
execute, and the Trustee shall authenticate and deliver, one or more
Initial Certificated Notes of the same aggregate principal amount in
accordance with the foregoing.
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The Issuer shall deliver to the Trustee, and the Trustee shall retain
for two (2) years, copies of all documents received pursuant to this Section
2.07(b). The Issuer shall have the right to inspect and make copies of all such
documents at its sole expense at any reasonable time upon the giving of
reasonable written notice to the Trustee.
(c) The Initial Global Notes or Exchange Global Note, as the case may
be, shall be exchanged by the Issuer for one or more Initial Certificated Notes
or Exchange Certificated Notes, as the case may be, if (i) the Depositary has
notified the Issuer that it is unwilling or unable to continue as, or ceases to
be, a clearing agency registered under Section 17A of the Exchange Act and a
successor to the Depositary registered as a clearing agency under Section 17A of
the Exchange Act is not able to be appointed by the Issuer within ninety (90)
calendar days, or (ii) the Depositary is at any time unwilling or unable to
continue as Depositary and a successor to the Depositary is not able to be
appointed by the Issuer within ninety (90) calendar days, or (iii) the Issuer,
at its option, notifies the Trustee in writing that it elects to cause the
issuance of Notes in the form of Certificated Notes. If an Event of Default
occurs and is continuing, the Issuer shall, at the request of the Holder
thereof, exchange all or part of the Initial Global Notes or Exchange Global
Note, as the case may be, for one or more Initial Certificated Notes or Exchange
Certificated Notes, as the case may be; provided that the principal amount of
each of such Initial Certificated Note or Exchange Certificated Note, as the
case may be, and such Global Note, after such exchange, shall be $1,000 or an
integral multiple thereof. Whenever a Global Note is exchanged as a whole for
one or more Initial Certificated Notes or Exchange Certificated Notes, as the
case may be, it shall be surrendered by the Holder thereof to the Trustee for
cancellation. Whenever a Global Note is exchanged in part for one or more
Initial Certificated Notes or Exchange Certificated Notes, as the case may be,
it shall be surrendered by the Holder thereof to the Trustee and the Trustee
shall make the appropriate notations thereon pursuant to Section 2.06(c) hereof.
All Initial Certificated Notes or Exchange Certificated Notes, as the case may
be, issued in exchange for a Global Note or any portion thereof shall be
registered in such names, and delivered, as the Depositary shall instruct the
Trustee in writing. Any Initial Certificated Notes issued pursuant to this
Section 2.07(c) shall include the Private Placement Legend, except as set forth
in Section 2.07(a) hereof.
(d) Any Initial Notes that are presented to the Registrar for exchange
pursuant to a Registered Exchange Offer shall be exchanged for Exchange Notes of
equal principal amount upon surrender to the Registrar of the Initial Notes to
be exchanged in accordance with the terms of the Registered Exchange Offer;
provided that the Initial Notes so surrendered for exchange are accompanied by a
letter of transmittal and duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Issuer, the Trustee and the Registrar
and duly executed by the Holder thereof or such Holder's attorney who shall be
duly authorized in writing to execute such document on behalf of such Holder.
Whenever any Initial Notes are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver to the surrendering
Holder thereof, Exchange Notes in the same aggregate principal amount as the
Initial Notes so surrendered.
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(e) A Holder may transfer a Note only upon the surrender of such Note
for registration of transfer. No such transfer shall be effected until, and the
transferee shall succeed to the rights of a Holder only upon, final acceptance
and registration of the transfer in the Note Register by the Registrar. When
Notes are presented to the Registrar with a request to register the transfer of,
or to exchange, such Notes, the Registrar shall register the transfer or make
such exchange as requested if its requirements for such transactions and any
applicable requirements hereunder are satisfied. To permit registrations of
transfers and exchanges, the Issuer shall execute and the Trustee shall
authenticate and deliver Certificated Notes at the Registrar's request.
(f) The Issuer shall not be required to make and the Registrar need not
register the transfer or exchange of Certificated Notes or portions thereof
selected for redemption (except, in the case of a Certificated Note to be
redeemed in part, the portion of such Note not to be redeemed) or any
Certificated Notes for a period of fifteen (15) calendar days before a selection
of Notes to be redeemed.
(g) No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer of Notes (other than in respect of a
Registered Exchange Offer, except as provided in the Registration Rights
Agreement).
(h) All Notes issued upon any registration of transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Notes surrendered for
such registration of transfer or exchange.
(i) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Depositary (or its
agent), and that ownership of a beneficial interest in the Notes represented
thereby shall be required to be reflected in book-entry form. Transfers of a
Global Note shall be limited to transfers, in whole and not in part, to the
Depositary, its successors, and their respective nominees. Interests of
beneficial owners in a Global Note shall be transferred in accordance with the
rules and procedures of the Depositary (or its successors), which shall, in the
case of the Initial Global Notes, include restrictions designed to ensure that
the beneficial owners of such Initial Global Notes are QIBs or Non-U.S. Persons.
SECTION 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the Issuer
shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Issuer, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Issuer and the Trustee to protect the Issuer,
the Trustee, the Paying Agent,
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the Registrar and any co-registrar from any loss or liability which any of them
may suffer if a Note is replaced. The Issuer and the Trustee may charge the
Holder for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuer.
SECTION 2.09. 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 as not outstanding. A Note does not cease to be
outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Issuer receive proof satisfactory to them
that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal, premium, if any, and interest and Liquidated Damages, if any,
payable on that date with respect to the Notes (or portions thereof) to be
redeemed or maturing, as the case may be, and the Paying Agent is not prohibited
from paying such money to the Noteholders on that date pursuant to the terms of
this Indenture, then on and after that date such Notes (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may prepare and the
Trustee shall authenticate and deliver temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuer considers appropriate for temporary Notes. Without unreasonable delay,
the Issuer shall prepare and the Trustee shall authenticate definitive Notes and
deliver them in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Issuer 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 registration of transfer, exchange or payment. The
Trustee and no one else shall cancel and destroy (subject to the record
retention requirements of the Exchange Act) all Notes surrendered for
registration of transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Issuer unless the Issuer directs the
Trustee to deliver canceled Notes to the Issuer; provided, that the Trustee
shall not be required to destroy any Notes. The Issuer may not issue new Notes
to replace Notes it has redeemed, paid or delivered to the Trustee for
cancellation.
SECTION 2.12. Payment of Interest, Interest Rights Preserved.
Interest on any Note which is payable, and is paid or duly provided for, on any
Interest
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Payment Date shall be paid to the Person in whose name such Note is registered
at the close of business on the Record Date for such interest payment, which
shall be the May 1 or November 1 (whether or not a Business Day) immediately
preceding such Interest Payment Date.
Any interest on any Note which is payable, but is not paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder on the relevant
Record Date, and, except as hereinafter provided, such Defaulted Interest, and
any interest payable on such Defaulted Interest, may be paid by the Issuer, at
its election, as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest, and
any interest payable on such Defaulted Interest, to the Persons in whose names
the Notes are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Issuer shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on the Notes and the date of the proposed
payment, and at the same time the Issuer shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this Section 2.12(a). Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than fifteen (15) calendar days and not less than ten (10)
calendar days prior to the date of the proposed payment and not less than ten
(10) calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer of such Special
Record Date and, in the name and at the expense of the Issuer, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be sent, first-class mail, postage prepaid, to each Holder at
such Holder's address as it appears in the Note Register, not less than ten (10)
calendar days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Notes are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (b);
or
(b) The Issuer may make payment of any Defaulted Interest, and any
interest payable on such Defaulted Interest, on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee of the proposed
payment pursuant to this clause (b), such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Note, shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other
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Note.
SECTION 2.13 Add-On Notes.
The Issuer may, from time to time, subject to compliance with any other
applicable provisions of this Indenture (including but not limited to Section
4.08), without the consent of the Holders, create and issue pursuant to this
Indenture additional notes having terms and conditions identical to those of the
Notes except for issue date ("Add-On Notes") (or the same except for the payment
of interest accruing prior to the issue date of such Add-On Notes and as
otherwise provided in the following sentence), which Add-On Notes will be
treated, together with any other outstanding Notes, as a single issue of
securities. The Issuer may, in connection with the issuance of any Add-On Notes,
by Board Resolution or supplemental indenture make appropriate adjustments to
this Article II applicable to such Add-On Notes in order to ensure compliance
with the Securities Act and any registration rights or similar agreement
applicable to such Add-On Notes.
SECTION 2.14. CUSIP or ISIN Numbers.
(a) The Issuer in issuing the Notes may use CUSIP or ISIN numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP or ISIN numbers, as
applicable, in notices of redemption as a convenience to Holders; provided, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
(b) In the event that the Issuer shall issue and the Trustee shall
authenticate any Add-On Notes pursuant to Section 2.02, the Issuer shall use its
best efforts to obtain the same CUSIP or ISIN number for such Add-On Notes as is
printed on the Notes outstanding at such time; provided, however, that if any
Add-On Notes are determined, pursuant to an Opinion of Counsel, to be a
different class of security than the Notes outstanding at such time for federal
income tax purposes, the Issuer may obtain a CUSIP or ISIN number for such
series of Add-On Notes that is different from the CUSIP or ISIN number printed
on the Notes then outstanding and if any Add-On Notes are required to carry a
Private Placement Legend and other Notes outstanding at such time are not or
vice versa, the Issuer may obtain and use a different CUSIP or ISIN number for
such Add-On Notes for such time as such difference applies.
SECTION 2.15. Transfers, etc. Each Holder of a Note agrees to indemnify
the Issuer and the Trustee against any liability that may result from the
transfer, exchange or assignment by such Holder of such Holder's Note in
violation of any provision of this Indenture or applicable U.S. Federal or state
securities law.
ARTICLE 3
REDEMPTION
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SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to paragraph 8 of the Initial
Notes or paragraph 7 of the Exchange Notes, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Notes to be redeemed.
The Issuer shall give each notice to the Trustee provided for in this
Section 3.01 not less than thirty (30) days nor more than sixty (60) days before
the Redemption Date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers' Certificate and an Opinion of Counsel from
the Issuer to the effect that such redemption will comply with the conditions
herein.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select the
Notes to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Notes not previously called
for redemption. The Trustee may select for redemption portions of the principal
of Notes that have denominations larger than $1,000. Notes and portions of them
the Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Issuer promptly of the Notes or portions of Notes to be redeemed.
SECTION 3.03. Notice of Redemption.
At least twenty (20) days but not more than sixty (60) days before a Redemption
Date, the Issuer shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(e) if any Global Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, such Global Note, with a notation on Schedule A thereof adjusting the
principal amount thereof to be equal to the
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unredeemed portion, will be returned to the Holder thereof,
(f) if any Certificated Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the Redemption
Date, a new Certificated Note or Certificated Notes in principal amount equal to
the unredeemed portion will be issued;
(g) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be redeemed;
(h) that, unless the Issuer defaults in making such redemption payment
or the Paying Agent is prohibited from making such payment pursuant to the terms
of this Indenture, interest on Notes (or portion thereof) called for redemption
ceases to accrue on and after the Redemption Date; and
(i) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's expense. In such event, the
Issuer shall provide the Trustee with the information required by this Section
3.03.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the notice.
Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption
Price stated in the notice, plus accrued interest to the Redemption Date.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
On or prior to the Redemption Date, the Issuer shall deposit with the Paying
Agent (or, if the Issuer or a domestically incorporated wholly-owned Subsidiary
is the Paying Agent, shall segregate and hold in trust) money in immediately
available funds, sufficient to pay the Redemption Price of and accrued interest
on all Notes to be redeemed on that date other than Notes or portions of Notes
called for redemption which have been delivered by the Issuer to the Trustee for
cancellation.
So long as the Issuer complies with the preceding paragraph and the
other provisions of this Article 3, interest on the Notes or portions thereof to
be redeemed on the applicable Redemption Date shall cease to accrue from and
after such date and such Notes or portions thereof shall be deemed not to be
entitled to any benefit under this Indenture except to receive payment of the
Redemption Price on the Redemption Date (subject to the right of each Holder of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date). If any Note called for redemption shall not be so paid
upon surrender for redemption, then, from
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the Redemption Date until such Redemption Price is paid, interest shall be paid
on the unpaid principal and premium, if any, and, to the extent permitted by
law, on any accrued but unpaid interest thereon, in each case at the rate
prescribed therefor by such Notes.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer shall execute and
the Trustee shall authenticate for the Holder of the Note being surrendered (at
the Issuer's expense) a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall promptly pay the principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Notes on the dates and in the manner
provided in the Notes and in this Indenture. Principal, premium, if any, and
interest and Liquidated Damages, if any, shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with
this Indenture money sufficient to pay all principal, premium, if any, and
interest and Liquidated Damages, if any, then due and the Trustee or the Paying
Agent, as the case may be, is not prohibited from paying such money to the
Noteholders on that date pursuant to the terms of this Indenture.
To the extent lawful, the Issuer shall pay interest on overdue
principal, overdue premium, Defaulted Interest and Liquidated Damages (without
regard to any applicable grace period) at the interest rate borne on the Notes.
The Issuer's obligation pursuant to the previous sentence shall apply whether
such overdue amount is due at its maturity, as a result of the Issuer's
obligations pursuant to Sections 3.05, Section 4.11 or Section 4.14 hereof, or
otherwise.
All payments with respect to a Global Note or a Certificated Note
(including principal, premium, if any, interest and Liquidated Damages, if any)
the Holders of which have given wire transfer instructions to the Issuer will be
required to be made by wire transfer of immediately available funds to the
account or (in the case of a Global Note) accounts specified by the Holders
thereof or, if no such account is specified, by sending via first-class mail,
postage prepaid, a check to each such Holders' registered address.
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency where Notes may be presented or
surrendered for payment and where Notes may be surrendered for registration of
transfer or exchange, which shall initially be the office of the Trustee in
Dallas, Texas. The Issuer shall maintain an office where notices and demands to
or upon the Issuer in respect of the Notes and this Indenture may be served,
which office shall be initially the Corporate Trust Office designated in the
definition of "Corporate Trust Office." The Issuer shall give prompt written
notice to the Trustee of the
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location, and any change in the location, of such office or agency. If at any
time the Issuer 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 designated office
of the Trustee, and the Issuer hereby appoints the Trustee its agent to receive
all presentations, surrenders, notices and demands.
The Issuer 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 of such purposes, and may from time to time rescind such designations;
provided, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency for such purposes. The
Issuer shall give prompt written notice to the Trustee of any such designation
and any change in the location of any such other office or agency.
The Issuer hereby designates the Dallas, Texas office of the Trustee as
one such office or agency of the Issuer in accordance with Section 2.03 hereof.
SECTION 4.03. Money for the Notes to be Held in Trust.
If the Issuer, any Subsidiary of the Issuer or any of their respective
Affiliates shall at any time act as Paying Agent with respect to the Notes, such
Paying Agent shall, on or before each due date of the principal of, premium, if
any, or interest or Liquidated Damages, if any, on any of the Notes, segregate
and hold in trust for the benefit of the Persons entitled thereto money
sufficient to pay the principal, premium, if any, or interest or Liquidated
Damages, if any, so becoming due until such money shall be paid to such Persons
or otherwise disposed of as herein provided, and shall promptly notify the
Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents with respect
to the Notes, it shall, prior to 10:00 a.m. New York, New York time on each due
date of the principal of, premium, if any, or interest or Liquidated Damages, if
any, on any of the Notes, deposit with a Paying Agent a sum sufficient to pay
the principal, premium, if any, or interest or Liquidated Damages, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium, if any, or interest or Liquidated Damages,
if any, and (unless such Paying Agent is the Trustee) the Paying Agent shall
promptly notify the Trustee of the Issuer's action or failure so to act.
SECTION 4.04. Corporate Existence.
Subject to the provisions of Article 5 hereof, the Issuer shall do or cause to
be done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the Issuer
and each of its Restricted Subsidiaries; provided, that the Issuer and any such
Restricted Subsidiary shall not be required to preserve the corporate existence
of any such Restricted Subsidiary or any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and that the loss thereof is not
disadvantageous in any material respect to the Holders.
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SECTION 4.05. Maintenance of Property.
The Issuer shall cause all Property used in the conduct of its business or the
business of any of its Restricted Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as, in the judgment of the Issuer, may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, that nothing in
this Section 4.05 shall prevent the Issuer from discontinuing the operation or
maintenance of any of such Property if such discontinuance is, in the judgment
of the Issuer, desirable in the conduct of its business or the business of any
of its Subsidiaries and not disadvantageous in any material respect to the
Holders.
SECTION 4.06. Payment of Taxes and Other Claims.
The Issuer and its Subsidiaries shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent (a) all material obligations
and liabilities, (b) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any of its Subsidiaries or upon the income, profits
or Property of the Issuer or any of its Subsidiaries and (c) all material lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
Lien upon the Property of the Issuer or any of its Subsidiaries; provided, that
the Issuer shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP or other appropriate provision
has been made.
SECTION 4.07. SEC and Other Reports.
Notwithstanding that the Issuer may not be subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act, the Issuer shall (a) provide the
Trustee, the Initial Purchasers and Noteholders with such annual reports,
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections and (b) beginning on the earlier of the date that the Exchange Offer
Registration Statement or the Shelf Registration Statement (as both terms are
defined in the Registration Rights Agreement) is declared effective by the SEC,
file with the SEC, to the extent permitted, the annual reports, information,
documents and other reports described in clause (a), in each case, such
information, documents and reports to be so provided and filed at the times
specified for the filing of such information, documents and reports under such
Section. In addition, the Issuer will make available, upon request, to any
Holder and any prospective purchaser of Notes the information required pursuant
to Rule 144A(d)(4) under the Securities Act during any period in which the
Issuer is not subject to Section 13 or 15(d) of the Exchange Act. The Issuer
also shall comply with the provisions of Section 314(a) of the TIA. Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to
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rely exclusively on Officers' Certificates).
SECTION 4.08. Limitation on Indebtedness.
The Issuer shall not, and shall not permit any Restricted Subsidiary to, incur,
directly or indirectly, any Indebtedness (including any Acquired Indebtedness)
other than Permitted Indebtedness. Notwithstanding the foregoing, in addition to
Permitted Indebtedness, the Issuer may incur Indebtedness (including Acquired
Indebtedness) and any Restricted Subsidiary may incur Acquired Indebtedness and
guarantee Senior Credit Facility obligations, if, in either case, (i) no Default
or Event of Default shall have occurred and be continuing on the date of the
proposed incurrence of Indebtedness or would result as a consequence of such
proposed incurrence and (ii) immediately after giving effect to such proposed
incurrence, the Consolidated Leverage Ratio of the Issuer is less than 7.0 to
1.0.
SECTION 4.09. Limitation on Restricted Payments.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to, make a Restricted Payment if at the time
the Issuer or such Restricted Subsidiary makes such Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing (or would result therefrom); or
(ii) the Issuer or such Restricted Subsidiary is not able to
incur, after giving effect to such Restricted Payment, an additional
$1.00 of Indebtedness pursuant to the second sentence of Section 4.08;
or
(iii) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date (other than Restricted
Payments referred to in items (b)(i) and (b) (ii) below) would exceed
the sum of:
(A) one hundred percent (100%) of the Consolidated
EBITDA accrued on a cumulative basis during the period
(treated as one accounting period) beginning on the first day
of the fiscal quarter beginning immediately following the
Issue Date to the end of the most recent fiscal quarter ending
at least forty-five (45) days prior to the date of such
Restricted Payment (or, in case such Consolidated Net EBITDA
shall be a deficit, minus 100% of such deficit) less 1.4 times
Consolidated Interest Expense for the same period;
(B) the aggregate Net Cash Proceeds received by the
Issuer from the issuance or sale of, or as a capital
contribution in respect of, its Capital Stock (other than
Disqualified Stock) subsequent to the Issue Date (other than
an issuance or sale to
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a Subsidiary of the Issuer and other than an issuance or sale
to an employee stock ownership plan or to a trust established
by the Issuer or any of its Subsidiaries for the benefit of
their employees);
(C) the amount by which Indebtedness of the Issuer is
reduced on the Issuer's balance sheet upon the conversion or
exchange (other than by a Subsidiary of the Issuer) subsequent
to the Issue Date of any Indebtedness of the Issuer
convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the Issuer (less the amount of any
cash, or the fair value of any other property, distributed by
the Issuer upon such conversion or exchange);
(D) an amount equal to the sum of (i) the net
reduction in Investment in any Person resulting from
dividends, repayments of loans or advances or other transfers
of assets, in each case to the Issuer or any Restricted
Subsidiary from such Person, and (ii) the portion
(proportionate to the Issuer's equity interest in such
Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
that the foregoing sum shall not exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made (and treated as a Restricted Payment) by the Issuer or
any Restricted Subsidiary in such Unrestricted Subsidiary; and
(E) $5.0 million.
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(i) if no Default or Event of Default shall have occurred and
be continuing, any purchase or redemption of Capital Stock or
Subordinated Obligations of the Issuer made by exchange for, or out of
the proceeds of the substantially concurrent sale of, or capital
contribution in respect of, Capital Stock of the Issuer (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of the Issuer); provided, that (A) such purchase or
redemption shall be excluded in the calculation of the amount of
Restricted Payments and (B) the Net Cash Proceeds from such sale or
capital contribution shall be excluded from the calculation of amounts
under clause (iii) (B) of paragraph (a) above;
(ii) if no Default or Event of Default exists, any purchase,
repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Indebtedness of
the Issuer which is permitted to be incurred under Section 4.08;
provided, that such purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments;
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(iii) dividends paid within sixty (60) days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this covenant; provided, however, that at the time
of payment of such dividend, no other Default shall have occurred and
be continuing (or result therefrom); provided further, that such
dividend shall be included in the calculation of the amount of
Restricted Payments; and
(iv) if no other Default or Event of Default shall have
occurred and be continuing or would result therefrom, any purchase of
any fractional share of Capital Stock of the Issuer resulting from (A)
any dividend or other distribution on outstanding shares of Capital
Stock that is payable in shares of such Capital Stock (including any
stock split or subdivision of the outstanding Capital Stock of the
Issuer), (B) any combination of all of the outstanding shares of
Capital Stock of the Issuer, (C) any reorganization or consolidation of
the Issuer in any merger of the Issuer with or into any other Person or
(D) the conversion of any securities of the Issuer into shares of
Capital Stock of the Issuer; provided, however, that all such purchases
of fractional shares shall be included in the calculation of the amount
of Restricted Payments.
SECTION 4.10. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.
The Issuer shall not, and shall not permit any Restricted Subsidiary to, create
or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary:
(a) to pay dividends or make any other distributions on its Capital
Stock or any other interest or participation in, or measured by the profits of
the Issuer or such Restricted Subsidiary or pay any Indebtedness owed to the
Issuer;
(b) to make any loans or advances to the Issuer or to any Restricted
Subsidiary; or
(c) to transfer any of its property or assets to the Issuer or to any
Restricted Subsidiary.
Notwithstanding the foregoing, this covenant shall not prohibit any
encumbrance or restriction existing under or by reason of:
(i) the Senior Credit Facility as in effect on the Issue Date
and as the same may be amended, modified, restated, supplemented or
refinanced from time to time; provided, however, that the restrictions
contained in any such amendment, modification, restatement, supplement
or other agreement are no less favorable in any material respect to the
Noteholders than restrictions contained in the Senior Credit Facility
on the Issue Date;
(ii) any encumbrances or restrictions existing as of the Issue
Date or pursuant
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to any agreement governing Indebtedness in existence on the Issue Date,
in each case as in effect on the Issue Date;
(iii) the Notes, this Indenture or any Guarantee;
(iv) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person or the
properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(v) Refinancing Indebtedness incurred to refinance
Indebtedness referred to in clause (ii) or (iv); provided, however,
that the encumbrances and restrictions contained in any such
refinancing agreement are no less favorable to the Noteholders than
encumbrances and restrictions contained in such agreements governing
the Indebtedness being refinanced;
(vi) customary nonassignment provisions in leases governing
leasehold interests to the extent such provisions restrict the transfer
of the lease or the property leased thereunder;
(vii) security agreements or mortgages securing Indebtedness
of a Restricted Subsidiary to the extent such restrictions restrict the
transfer of the property subject to such security agreements or
mortgages;
(viii) restrictions with respect to a Restricted Subsidiary
imposed pursuant to a binding agreement which has been entered into for
the sale or disposition of capital stock or assets of such Restricted
Subsidiary; provided, that such restrictions apply solely to the
capital stock or assets of such Restricted Subsidiary;
(ix) Liens securing Indebtedness otherwise permitted to be
incurred by Section 4.15 that limit the right of the Issuer or any of
its Restricted Subsidiaries to dispose of the assets subject to such
Lien; and
(x) applicable law.
SECTION 4.11. Limitation on Sales of Assets and Subsidiary Stock
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless:
(i) the Issuer or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the fair
market value (including as to the value of all non-cash consideration)
of the shares and assets subject to such Asset Sale (which fair
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market value shall be determined in good faith by the Board of
Directors for any transaction (or series of transactions) involving in
excess of $1,000,000) and at least 75% of the consideration received
therefor by the Issuer or such Restricted Subsidiary is in the form of
(A) cash or Cash Equivalents and is received at the time of such sale
or (B) (1) long-term assets to be used by the Issuer or any Restricted
Subsidiary in a Related Business or (2) capital stock of a Restricted
Subsidiary or a Person engaged primarily in a Related Business that
will become, upon such purchase, a Restricted Subsidiary (collectively,
"Replacement Assets"); and
(ii) an amount equal to 100% of the Net Available Cash from
such Asset Sale is applied by the Issuer (or such Restricted
Subsidiary, as the case may be):
(A) first, to the extent the Issuer elects (or is
required by the terms of the Senior Credit Facility or other
Senior Indebtedness), to prepay or repay outstandings under
the Senior Credit Facility or such other Senior Indebtedness;
provided, that (1) there is a permanent reduction in the
availability of funds under the Senior Credit Facility or such
other Senior Indebtedness in an amount equal to such
prepayment or repayment and (2) such prepayment or repayment
is made within three hundred sixty-five (365) days from the
date of such Asset Sale; and
(B) second, to the extent the Issuer elects, and
within three hundred sixty-five (365) days from the date of
such Asset Sale, to purchase, construct or improve Replacement
Assets.
(b) Any Net Available Cash not applied within three hundred sixty-five
(365) days after the consummation of an Asset Sale as provided in clauses (A) or
(B) of paragraph (ii) above will be deemed to constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $5,000,000, the Issuer will be
required to make an offer to all Holders (an "Asset Sale Offer"), to purchase,
on a pro rata basis the principal amount of Notes equal in amount to the Excess
Proceeds (and not just the amount thereof that exceeds $5,000,000) (the "Asset
Sale Offer Amount"), at a purchase price in cash in an amount equal to one
hundred percent (100%) of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon to the date of purchase (subject to the
right of each Holder of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), in accordance with the procedures
set forth in this Indenture, and in accordance with the following standards:
(i) If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes (or portions thereof) to be purchased on a pro
rata basis, based on the principal amount of Notes tendered, with such
adjustments as may be deemed appropriate by the Trustee, so that only
Notes (or portions thereof) in denominations of $1,000 or integral
multiples thereof shall be purchased.
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(ii) If the aggregate principal amount of Notes tendered
pursuant to such Asset Sale Offer is less than the Excess Proceeds, the
Issuer may use any remaining Excess Proceeds following the completion
of the Asset Sale Offer for general corporate purposes (subject to the
other provisions of this Indenture).
Upon completion of an Asset Sale Offer, the amount of Excess Proceeds
then required to be otherwise applied in accordance with this covenant shall be
reset to zero, subject to any subsequent Asset Sale.
(c) In the event of the transfer of substantially all (but not all) of
the property and assets of the Issuer and its Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.01 below, the successor
corporation shall be deemed to have sold the properties and assets of the Issuer
and its Subsidiaries not so transferred for purposes of this covenant, and shall
comply with the provisions of this covenant with respect to such deemed sale as
if it were an Asset Sale. In addition, the fair market value of such properties
and assets of the Issuer or its Subsidiaries deemed to be sold shall be deemed
to be Net Available Cash for purposes of this covenant.
(d) If at any time any non-cash consideration received by the Issuer or
any Subsidiary in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof
shall be applied in accordance with this covenant.
(e) Within thirty (30) calendar days after the date the amount of
Excess Proceeds exceeds $5,000,000, the Issuer, or the Trustee at the written
request and expense of the Issuer, shall send to each Holder by first-class
mail, postage prepaid, a notice prepared by the Issuer stating:
(i) that an Asset Sale Offer is being made pursuant to this
Section 4.11 and that all Notes that are timely tendered will be
accepted for payment, subject to proration if the amount of Excess
Proceeds is less than the aggregate principal amount of all Notes
timely tendered pursuant to the Asset Sale Offer;
(ii) the Asset Sale Offer Amount, the amount of Excess
Proceeds that are available to be applied to purchase tendered Notes,
and the date Notes are to be purchased pursuant to the Asset Sale Offer
(the "Asset Sale Purchase Date"), which date shall be a Business Day no
earlier than thirty (30) calendar days nor later than sixty (60)
calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
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(iv) that, unless the Issuer defaults in the payment of the
Asset Sale Offer Amount with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest from and after the Asset Sale Purchase Date;
(v) that any Holder electing to have any Notes or portions
thereof purchased pursuant to the Asset Sale Offer will be required to
surrender such Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of such Notes completed, to the Paying Agent
at the address specified in the notice prior to the close of business
on the third Business Day preceding the Asset Sale Purchase Date;
(vi) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the fifth Business Day preceding the Asset Sale Purchase
Date, a facsimile transmission or letter, setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing such Holder's election to
have such Notes or portions thereof purchased pursuant to the Asset
Sale Offer;
(vii) that any Holder electing to have Notes purchased
pursuant to the Asset Sale Offer must specify the principal amount that
is being tendered for purchase, which principal amount must be $1,000
or an integral multiple thereof;
(viii) if Certificated Notes have been issued hereunder, that
any Holder of Certificated Notes whose Certificated Notes are being
purchased only in part will be issued new Certificated Notes equal in
principal amount to the unpurchased portion of the Certificated Note or
Notes surrendered, which unpurchased portion will be equal in principal
amount to $1,000 or an integral multiple thereof;
(ix) that the Trustee will return to the Holder of a Global
Note that is being purchased in part, such Global Note with a notation
on Schedule A thereof adjusting the principal amount thereof to be
equal to the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to this Section
4.11.
(f) On the Asset Sale Purchase Date, the Issuer shall (i) accept for
payment any Notes or portions thereof properly tendered and selected for
purchase pursuant to the Asset Sale Offer and Section 4.11(e) hereof, (ii)
irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on
such date, in immediately available funds, an amount equal to the Asset Sale
Offer Amount in respect of all Notes or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee the Notes so accepted together
with an Officers' Certificate listing the Notes or portions thereof tendered to
the Issuer and accepted for payment. Subject to the provisions of Section 4.01,
the Paying Agent shall promptly send by first class mail, postage
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prepaid, to each Holder of Notes or portions thereof so accepted for payment the
Asset Sale Offer Amount for such Notes or portions thereof. The Issuer shall
publicly announce the results of the Asset Sale Offer on or as soon as
practicable after the Asset Sale Purchase Date. For purposes of this Section
4.11, the Trustee shall act as the Paying Agent.
(g) Upon surrender and cancellation of a Certificated Note that is
purchased in part, the Issuer shall promptly issue and the Trustee shall
authenticate and deliver to the surrendering Holder of such Certificated Note, a
new Certificated Note equal in principal amount to the unpurchased portion of
such surrendered Certificated Note; provided that each such new Certificated
Note shall be in a principal amount of $1,000 or an integral multiple thereof.
(h) Upon surrender of a Global Note that is purchased in part, the
Paying Agent shall forward such Global Note to the Trustee who shall make a
notation on Schedule A thereof to reduce the principal amount of such Global
Note, as provided in Section 2.06(c) hereof.
(i) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.11. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.11 by virtue thereof.
SECTION 4.12. Limitation on Affiliate Transactions
(a) Except for Excluded Transactions, the Issuer shall not, and shall
not permit any Restricted Subsidiary to, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property,
employee compensation arrangements or the rendering of any service) with any
Affiliate of the Issuer (an "Affiliate Transaction") unless the terms thereof:
(i) are no less favorable to the Issuer or such Restricted
Subsidiary than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an
Affiliate;
(ii) if such Affiliate Transaction involves an amount in
excess of $1,000,000, (A) are set forth in writing and (B) have been
approved by a majority of the disinterested members of the Board of
Directors; and
(iii) if such Affiliate Transaction involves an amount in
excess of $5,000,000, have been determined by a nationally recognized
investment banking or accounting firm having experience in such matters
to be fair, from a financial point of view, to the Issuer and its
Restricted Subsidiaries.
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(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.09 so long as any payment to a Permitted Holder is made
ratably to all stockholders of the applicable class of Capital Stock;
(ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans or
similar employee benefit plans or arrangements approved by the Board of
Directors;
(iii) the grant of stock options or similar rights to
employees and directors of the Issuer pursuant to plans in existence on
the Issue Date and plans approved by the Board of Directors;
(iv) loans or advances to employees in the ordinary course of
business in accordance with the past practices of the Issuer or its
Restricted Subsidiaries, but in any event not to exceed $1,000,000 in
the aggregate outstanding at any one time;
(v) the payment of reasonable fees to directors of the Issuer
and its Restricted Subsidiaries who are not employees of the Issuer or
its Restricted Subsidiaries; and
(vi) any Affiliate Transaction (x) between the Issuer and a
Restricted Subsidiary or (y) between Restricted Subsidiaries.
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries
The Issuer shall not sell or otherwise dispose of any shares of
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
shares of its Capital Stock except to the Issuer or a wholly-owned Restricted
Subsidiary; provided, that this covenant will not prohibit (i) the sale of all
of the shares of the Capital Stock of any Restricted Subsidiary owned at the
time of such sale by the Issuer or any other Restricted Subsidiary effected in
accordance with Section 4.11 and Section 5.01, (ii) the issuance of shares of
Capital Stock of a Restricted Subsidiary pursuant to employee benefit plans or
arrangements approved by the Board of Directors of the Issuer or the applicable
Restricted Subsidiary, (iii) the sale, pursuant to an underwritten registered
public offering, of shares of Capital Stock of a Restricted Subsidiary effected
in accordance with Section 4.11 or (iv) the issuance of Capital Stock to the
Issuer or a Restricted Subsidiary in an Investment described by clause (i) in
the definition of "Permitted Investment."
SECTION 4.14. Change of Control
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(a) Upon the occurrence of any of the following events (each a "Change
of Control"), each Holder shall have the right to require that the Issuer
repurchase such Holder's Notes pursuant to the offer described in Section
4.14(b) hereof (the "Change of Control Offer") at a purchase price (the "Change
of Control Purchase Price") in cash equal to one hundred and one percent (101%)
of the aggregate principal amount of such Notes (or portions thereof) to be
redeemed plus accrued and unpaid interest and Liquidated Damages, if any,
thereon, to the purchase date (the "Change of Control Payment Date") (subject to
the right of holders of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date):
(i) (A) the Permitted Holders cease to be the "beneficial
owners" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, in the aggregate of at least 50.1% of the total
voting power of the Voting Stock of the Issuer or (B) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and l3d-5 under the Exchange Act,
provided, that for purposes of this clause (B) such person shall be
deemed to have "beneficial ownership" of all shares that any such
person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly,
of more than twenty-five percent (25%) of the total voting power of the
Voting Stock of the Issuer (for the purposes of this clause (i) the
Permitted Holders shall be deemed to beneficially own any Voting Stock
of a Person held by any other Person so long as the Permitted Holders
beneficially own, directly or indirectly in the aggregate at least
50.1% of the voting power of the Voting Stock of such other Person);
(ii) the Issuer 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 merges
with or into the Issuer, in any such event pursuant to a transaction in
which the outstanding Voting Stock of the Issuer is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (x) the outstanding Voting Stock of the Issuer is
converted into or exchanged for (1) Voting Stock (other than
Disqualified Stock) of the surviving or transferee corporation or (2)
cash, securities or other property in an amount which could be paid by
the Issuer as a Restricted Payment under Section 4.09 and (y)
immediately after such transaction no "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) (other than the
Permitted Holders) is the "beneficial owner" (as defined in Rules 13d-3
and l3d-5 under the Exchange Act, except that a person shall be deemed
to have "beneficial ownership" of all shares that any such Person has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of twenty-five
percent (25%) or more of the voting power of the Voting Stock of the
surviving or transferee corporation on a Fully Diluted basis;
(iii) during any period of two consecutive years, individuals
who at the
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beginning of such period constituted the Board of Directors (together
with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Issuer was
approved by a vote of sixty-six and two-thirds percent (66K%) of
the directors of the Issuer at the time of such approval 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 then in
office; or
(iv) the liquidation or dissolution of the Issuer.
(b) Within 30 days following any Change of Control, the Issuer shall
mail a notice to each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred, the circumstances
and relevant facts with respect to such Change of Control and that a
Change of Control Offer is being made pursuant to this Section 4.14,
and that all Notes (or portions thereof) that are timely tendered will
be accepted for payment;
(ii) the Change of Control Purchase Price and the Change of
Control Payment Date, which date shall be a Business Day no earlier
than thirty (30) calendar days nor later than sixty (60) calendar days
subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Issuer defaults in the payment of the
Change of Control Purchase Price with respect thereto, all Notes or
portions thereof accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest from and after the Change of
Control Payment Date;
(v) that any Holder electing to have any Notes or portions
thereof purchased pursuant to a Change of Control Offer will be
required to tender such Notes, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of such Notes completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change of Control
Payment Date;
(vi) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the fifth Business Day preceding the Change of Control
Payment Date, a facsimile transmission or letter, setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing such Holder's
election to have such Notes or portions thereof purchased pursuant to
the Change of Control Offer;
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(vii) that any Holder electing to have Notes purchased
pursuant to the Change of Control Offer must specify the principal
amount that is being tendered for purchase, which principal amount must
be $1,000 or an integral multiple thereof,
(viii) if Certificated Notes have been issued, that any Holder
of Certificated Notes whose Certificated Notes are being purchased only
in part will be issued new Certificated Notes equal in principal amount
to the unpurchased portion of the Certificated Note or Notes
surrendered, which unpurchased portion will be equal in principal
amount to $1,000 or an integral multiple thereof,
(ix) that the Trustee will return to the Holder of a Global
Note that is being purchased in part, such Global Note with a notation
on Schedule A thereof adjusting the principal amount thereof to be
equal to the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to this Section
4.14.
(c) On the Change of Control Payment Date, the Issuer shall (i) accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (ii) irrevocably deposit with the Paying Agent, by
10:00 a.m., New York City time, on such date, in immediately available funds, an
amount equal to the Change of Control Purchase Price in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so tendered together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Issuer. Subject to the provisions of Section 4.01 hereof, the Paying Agent shall
promptly send by first class mail, postage prepaid, to each Holder of Notes or
portions thereof so accepted for payment the Change of Control Purchase Price
for such Notes or portions thereof. The Issuer shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date. For purposes of this Section 4.14, the Trustee
shall act as the Paying Agent.
(d) Upon surrender and cancellation of a Certificated Note that is
purchased in part pursuant to the Change of Control Offer, the Issuer shall
promptly issue and the Trustee shall authenticate and deliver to the
surrendering Holder of such Certificated Note a new Certificated Note equal in
principal amount to the unpurchased portion of such surrendered Certificated
Note; provided, that each such new Certificated Note shall be in a principal
amount of $1,000 or an integral multiple thereof.
(e) Upon surrender of a Global Note that is purchased in part pursuant
to a Change of Control Offer, the Paying Agent shall forward such Global Note to
the Trustee who shall make a notation on Schedule A thereof to reduce the
principal amount of such Global Note to an amount equal to the unpurchased
portion of such Global Note, as provided in Section 2.06(c) hereof.
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(f) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.14. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.14, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.14 by virtue
thereof
(g) Prior to complying with the provisions of this Section 4.14, but in
any event within 30 days following a Change of Control, the Issuer shall, to the
extent required, either repay all outstanding Senior Indebtedness or obtain the
requisite consents, if any, under all agreements governing outstanding Senior
Indebtedness to permit the repurchase of Notes required by this Section 4.14.
SECTION 4.15. Limitation on Liens.
Other than Permitted Liens, the Issuer shall not, and shall not cause or permit
any Restricted Subsidiary to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including
any document or instrument in respect of goods or accounts receivable) of the
Issuer or of any Restricted Subsidiary, whether now owned or hereafter acquired,
or assign or otherwise convey any right to receive any income or profits
therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such
property, asset, income or profits under the Uniform Commercial Code of any
State or under any similar recording or notice statute, unless (i) in the case
of Liens securing Indebtedness that is expressly subordinate or junior in right
of payment to the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and (ii) in all
other cases, the Notes are equally and ratably secured.
SECTION 4.16. Limitation on Layered Indebtedness.
Other than in connection with (a) the Senior Credit Facility or (b) the purchase
or redemption of minority equity interests in any Restricted Subsidiary from
non-Affiliates of the Issuer, the Issuer shall not, and, if at any time
Restricted Subsidiaries become Guarantors, shall not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness that is
subordinate in right of payment to any other Indebtedness, unless such
Indebtedness is subordinate in right of payment to, or ranks pari passu with,
the Notes or, in the case of Restricted Subsidiaries that are Guarantors, such
Indebtedness is subordinate in right of payment to, or ranks pari passu with,
the Guarantees of such Guarantors.
The Guarantors, if any, will not, directly or indirectly, guarantee any
Indebtedness of the Issuer that is subordinate in right of payment to any other
Indebtedness of the Issuer unless such guarantee is subordinate in right of
payment to, or ranks pari passu with, the Guarantees of such Guarantors.
SECTION 4.17. Compliance Certificate
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The Issuer shall deliver to the Trustee within one hundred twenty (120) days
after the end of each fiscal year of the Issuer an Officers' Certificate stating
that in the course of the performance by the signers of their duties as Officers
of the Issuer they would normally have knowledge of any Default and whether or
not the signers know of any Default that occurred during such period. If they
do, the certificate shall describe the Default, its status and what action the
Issuer is taking or proposes to take with respect thereto. The Issuer also shall
comply with TIA Section 314(a)(4).
SECTION 4.18. Waiver of Stay, Extension or Usury Laws
Neither the Issuer nor any Guarantor, if any, will at any time, to the extent
that they may lawfully not do so, insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Issuer or its
Subsidiaries from paying all or any portion of the principal of or premium, if
any, or interest or Liquidated Damages, if any, on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and, to the extent
that they may lawfully do so, the Issuer and the Guarantors hereby expressly
waive all benefit or advantage of any such law and expressly agree 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 4.19. Investment Company Act
None of the Issuer or its Subsidiaries shall become an investment company
subject to registration under the Investment Company Act of 1940, as amended.
SECTION 4.20. Limitation on Conduct of Business
The Issuer and its Restricted Subsidiaries will not engage in any business other
than a Related Business.
SECTION 4.21 Guarantees of Certain Indebtedness
The Issuer will not permit any of its Restricted Subsidiaries, directly or
indirectly, to guarantee or otherwise become liable for, or incur any lien
securing, the payment of any Indebtedness of the Issuer (other than obligations
under the Senior Credit Facility from time to time outstanding or other
Indebtedness not to exceed $2,000,000 in aggregate at any one time outstanding
as to all of the Restricted Subsidiaries) unless such Restricted Subsidiary, the
Issuer, and the Trustee execute and deliver a supplemental indenture pursuant to
which such Restricted Subsidiary becomes a Guarantor of the Notes and otherwise
becomes obligated hereunder. Neither the Issuer nor any such Guarantor shall be
required to make a notation on the Notes or its Guarantee to reflect any such
subsequent Guarantee. Nothing in this covenant shall be construed to permit any
Restricted Subsidiary of Susquehanna Media to incur Indebtedness otherwise
prohibited by Section 4.08.
SECTION 4.22. Further Instruments and Acts
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Upon request of the Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. When Issuer May Merge or Transfer Assets
(a) The Issuer shall not, in a single transaction or series of related
transactions, consolidate with or merge with or into any Person, or sell or
dispose of (or permit any Restricted Subsidiary to sell or dispose of) all or
substantially all of the combined assets of the Issuer and its Restricted
Subsidiaries to any Person, unless:
(i) the Issuer, in the case of a transaction involving the
Issuer, or such Restricted Subsidiary in the case of a transaction
involving a Restricted Subsidiary, shall be the resulting, surviving or
transferee Person or the resulting, surviving or transferee Person (in
either case, the "Successor Company") shall be a Person organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not
the Issuer or such Restricted Subsidiary) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Issuer
under the Notes and this Indenture, or the obligation of such
Restricted Subsidiary under its Guarantee (if any shall then exist), as
the case may be;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company as a result of such transaction as having been incurred by such
Successor Company at the time of such transaction), no Default shall
have occurred and be continuing,
(iii) immediately after giving effect to such transaction, the
Issuer, if the transaction involves a Restricted Subsidiary, or the
Successor Company would be able to incur an additional $1.00 of
Indebtedness pursuant to the second sentence of Section 4.08,
(iv) in the case of a transaction involving the Issuer,
immediately after giving effect to such transaction, the Successor
Company shall have Consolidated Net Worth in an amount that is not less
than the Consolidated Net Worth of the Issuer prior to such
transaction;
(v) if, as a result of any such transaction, property or
assets of the Issuer or a Restricted Subsidiary would become subject
to a Lien securing Indebtedness not
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excepted from the provisions of this Indenture described above under
Section 4.15, the Issuer, any such Restricted Subsidiary or the
Successor Company, as the case may be, shall have secured the Notes
(and, if applicable, the relevant Guarantees), as required by such
provisions; and
(vi) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture
(if any) comply with this Indenture.
(b) the Successor Company shall be the successor to the Issuer or such
Restricted Subsidiary, as the case may be, and shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer or such
Restricted Subsidiary under the Indenture, but the predecessor Issuer or
Restricted Subsidiary in the case of a conveyance, transfer or lease shall not
be released from the obligation to pay the principal of and interest on the
Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default
The term "Event of Default," wherever used herein with respect to the Notes,
means any one of the following events (whatever the reason for such event, and
whether it shall be voluntary or involuntary, or be effected by operation of
law, pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) the Issuer defaults in any payment of interest on or Liquidated
Damages with respect to any Note when the same becomes due and payable, whether
or not such payment shall be prohibited by Article 10, and such default
continues for a period of thirty (30) days;
(b) the Issuer (i) defaults in the payment of the principal of, or
premium, if any, on any Note when the same becomes due and payable at its Stated
Maturity, upon redemption, upon declaration or otherwise, whether or not such
payment shall be prohibited by Article 10, or (ii) fails to redeem or purchase
Notes when required pursuant to this Indenture or the Notes, whether or not such
payment shall be prohibited by Article 10;
(c) the Issuer fails to observe or perform any covenant, condition or
agreement on the part of the Issuer to be observed or performed pursuant to
Sections 4.08, 4.09, 4.11, 4.14 and 5.01;
(d) the Issuer fails to comply with any of its other agreements or
covenants in or provisions of the Notes or this Indenture and such failure
continues for forty-five (45) days after the receipt by the Issuer of notice of
such Default from the Trustee or the Holders of at least twenty-five percent
(25%) in principal amount of the outstanding Notes;
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(e) Indebtedness of the Issuer or any Subsidiary is not paid within any
applicable grace period after final maturity or is accelerated by the holders
thereof because of a default and the total amount of such Indebtedness unpaid or
accelerated exceeds $5,000,000 or its foreign currency equivalent at the time;
(f) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Issuer or any Subsidiary of the
Issuer in an involuntary case or proceeding under any Bankruptcy Law or (ii) a
decree or order (A) adjudging the Issuer or any Subsidiary of the Issuer a
bankrupt or insolvent, or (B) approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of, or in respect of, the
Issuer or any Subsidiary of the Issuer under any Bankruptcy Law, or (C)
appointing a Custodian of the Issuer or any Subsidiary of the Issuer or of any
substantial part of the Property of the Issuer or any Subsidiary of the Issuer,
or (D) ordering the winding-up or liquidation of the affairs of the Issuer or
any Subsidiary of the Issuer, and in each case, the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of sixty (60) consecutive calendar days; or
(g) (i) the commencement by the Issuer or any Subsidiary of the Issuer of
a voluntary case or proceeding under any Bankruptcy Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent; or (ii) the consent by the
Issuer or any Subsidiary of the Issuer to the entry of a decree or order for
relief in respect of the Issuer or any Subsidiary of the Issuer in an
involuntary case or proceeding under any Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against the Issuer or any
Subsidiary of the Issuer; or (iii) the filing by the Issuer or any Subsidiary of
the Issuer of a petition or answer or consent seeking reorganization or relief
under any Bankruptcy Law; or (iv) the consent by the Issuer or any Subsidiary of
the Issuer to the filing of such petition or to the appointment of or taking
possession by a Custodian of the Issuer or any Subsidiary of the Issuer or of
any substantial part of the Property of the Issuer or any Subsidiary of the
Issuer; or (v) the making by the Issuer or any Subsidiary of the Issuer of an
assignment for the benefit of creditors; or (vi) the admission by the Issuer or
any Subsidiary of the Issuer in writing of its inability to pay its debts
generally as they become due; or (vii) the approval by stockholders of the
Issuer or any Subsidiary of the Issuer of any plan or proposal for the
liquidation or dissolution of the Issuer or any Subsidiary of the Issuer; or
(viii) the taking of corporate action by the Issuer or any Subsidiary of the
Issuer in furtherance of any such action; or
(h) any judgment or decree for the payment of money in excess of
$5,000,000 or its foreign currency equivalent at the time (to the extent not
covered by third-party insurance as to which a financially sound insurer has not
disclaimed coverage) is entered against the Issuer or any Subsidiary and remains
outstanding for a period of sixty (60) days following the date such judgment or
decree becomes final and non-appealable; or
(i) at any time that a Guarantee is required to be in effect under the
Indenture, the
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Guarantee of any Guarantor ceases to be in full force and effect (other than in
accordance with the terms of such Guarantee) or any Guarantor denies or
disaffirms its obligations under its Guarantee.
The Issuer shall deliver to the Trustee, within thirty (30) days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (c), (e), (h) or (i) and any event which with
the giving of notice or the lapse of time would become an Event of Default under
clause (d), its status and what action the Issuer is taking or proposes to take
with respect thereto.
SECTION 6.02. Acceleration
If an Event of Default (other than an Event of Default specified in Section
6.01(f) or (g) with respect to the Issuer) occurs and is continuing, the Trustee
by written notice to the Issuer, or the Holders of at least twenty-five percent
(25%) in principal amount of the Notes by written notice to the Issuer and the
Trustee, may declare the principal of, premium, if any, and accrued but unpaid
interest and Liquidated Damages, if any, on all the Notes to be due and payable.
Upon such a declaration, such principal, premium, if any, and interest and
Liquidated Damages, if any, shall be due and payable immediately. If an Event of
Default specified in Section 6.01(f) or (g) with respect to the Issuer occurs,
the principal of, premium, if any, and interest and Liquidated Damages, if any,
on all the Notes shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Noteholders. The Holders of a majority in principal amount of the Notes by
written notice to the Trustee and the Issuer may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal, premium, if any, or interest and Liquidated Damages, if
any, that has become due solely because of such acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies
The Issuer covenants that if an Event of Default specified in Section 6.01(a)
or 6.01(b) occurs, the Issuer shall, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders, the whole amount then due and payable
on the Notes for principal, premium, if any, and interest and Liquidated
Damages, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest upon the overdue principal (and premium, if any)
and upon Defaulted Interest (and Liquidated Damages, if any) at the rate or
rates prescribed therefor in the Notes, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, including the allocated reasonable costs of
its in-house counsel and legal staff, and all other amounts due to the Trustee
pursuant to Section 7.07 hereof.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium, if any, or
interest or Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this
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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.
SECTION 6.04. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the Notes by
written notice to the Trustee may, on behalf of the Holders of all the Notes,
waive an existing Default or Event of Default and its consequences except a
continuing Default or Event of Default (i) in the payment of the principal of,
premium, if any or interest or Liquidated Damages, if any, on a Note (except a
payment default resulting from an acceleration that has been rescinded) or (ii)
in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Noteholder affected.
SECTION 6.05. Control by Majority
The Holders of not less than a majority in principal amount of the Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 7.01, that the Trustee
determines is unduly prejudicial to the rights of other Noteholders or would
involve the Trustee in personal liability; provided, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits
A Noteholder may not pursue any remedy with respect to this Indenture or the
Notes unless:
(a) the Holder has previously given to the Trustee written notice stating
that an Event of Default is continuing;
(b) the Holders of at least twenty-five percent (25%) in principal amount
of the Notes have made a written request to the Trustee to pursue the remedy in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable security
or indemnity against any loss, liability or expense to be incurred in compliance
with such request;
(d) the Trustee has not complied with the request within sixty (60) days
after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the Notes have not
given the
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Trustee a direction inconsistent with the request during such sixty (60) day
period.
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, the right of any
Holder to receive payment of principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or the Redemption Dates or purchase
dates provided for therein or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuer for the whole amount then due and owing on
the Notes for principal, premium, if any, and interest and Liquidated Damages,
if any, and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and upon
Defaulted Interest (and Liquidated Damages, if any) and the amounts provided for
in Section 7.07.
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 and the
Noteholders allowed in any judicial proceedings relative to the Issuer, its
creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities
If the Trustee collects any money or property pursuant to this Article 6, it
shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Issuer to the
extent required by Article 10 or Article 12;
THIRD: to Noteholders for amounts due and unpaid on the Notes
for principal of,
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premium, if any, and interest and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer.
The Trustee may fix a Record Date and payment date for any payment to
Noteholders pursuant to this Section 6.10. At least fifteen (15) days before
such Record Date, the Issuer shall mail to each Noteholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
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 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 initiated by the Trustee, a suit initiated by a Holder
pursuant to Section 6.07 or a suit initiated by Holders of more than ten percent
(10%) in principal amount of the Notes.
SECTION 6.12. Waiver of Stay or Extension Laws
The Issuer (to the extent it may lawfully do so) shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
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(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(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:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) 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; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(g) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee
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(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on any
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, that the Trustee's conduct does not constitute willful
misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Issuer, the Guarantors or their
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuer's use of the
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proceeds from the Notes, and it shall not be responsible for any statement of
the Issuer in this Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults
If a Default occurs and is continuing and if it is actually known to the
Trustee, the Trustee shall mail to each Noteholder notice of the Default within
90 days after it occurs. Except in the case of a Default in the payment of
principal of, premium, if any, or interest or Liquidated Damages, if any, on any
Note (including payments pursuant to the mandatory redemption provisions of such
Note, if any), the Trustee may withhold the notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
SECTION 7.06. Reports by Trustee to Holders
As promptly as practicable after each April 15 beginning with the April 15
following the date of this Indenture, and in any event prior to July 15 in each
year, the Trustee shall mail to each Noteholder a brief report dated as of April
15 that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Issuer agrees to notify promptly the Trustee in writing whenever the
Notes become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity
The Issuer shall pay to the Trustee from time to time compensation for its
services as the Issuer and the Trustee shall from time to time agree in writing.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents and counsel, including the allocated
reasonable costs of its in-house counsel and legal staff. The Issuer hereby
agrees to indemnify and hold the Trustee and its directors, officers, agents and
employees (collectively, the "Indemnitees") harmless from and against any and
all claims, liabilities, losses, damages, fines, penalties, and expenses,
including out-of-pocket, incidental expenses, legal fees and expenses, and the
allocated reasonable costs and expenses of in-house counsel and legal staff
("Losses") that may be imposed on, incurred by, or asserted against, the
Indemnitees or any of them for following any instruction or other direction upon
which the Trustee is authorized to rely pursuant to the terms of this Indenture.
In addition to and not in limitation of the immediately preceding sentence, the
Issuer also agrees to indemnify and hold the Indemnitees and each of them
harmless from and against any and all Losses that may be imposed on, incurred
by, or asserted against the Indemnitees or any of them in connection with or
arising out of the Trustee's performance under this Indenture, provided the
Trustee has not acted with negligence or engaged in willful misconduct. The
provisions of this Section 7.07
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shall survive the termination of this Indenture and the resignation or removal
of the Trustee for any reason. The Trustee shall notify the Issuer promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer
shall defend the claim and the Trustee shall cooperate in the defense of the
claim; provided that the Trustee may have separate counsel and the Issuer shall
pay the reasonable fees and expenses of such counsel if the actual or potential
defendants in, or the targets of, any such claim include both the Trustee and
the Issuer and the Trustee shall have reasonably concluded that there may be
legal defenses available to it which are different from or additional to those
available to the Issuer. The Trustee will not, without the prior written consent
of the Issuer, settle or compromise or consent to the entry of any judgment with
respect to any claim in respect of which indemnification may be sought
hereunder. The Issuer need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of, premium, if any, and interest and Liquidated Damages, if any, on
particular Notes.
The Issuer's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(f) or (g) with respect to
the Issuer, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee
The Trustee may resign at any time by so notifying the Issuer. The Holders of
not less than a majority in principal amount of the Notes may remove the Trustee
by so notifying the Trustee in writing and may appoint a successor Trustee. The
Issuer shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or 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, is removed by the Issuer or by the Holders of a
majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuer. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Noteholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the Lien provided for in Section 7.07.
If a successor Trustee does not take office within thirty (30) days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of not less than ten percent (10%) in principal amount of the Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger
Any corporation or association into which the Trustee in its individual
capacity may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, conversion or
consolidation to which the Trustee in its individual capacity shall be a party
or any corporation or association to which all or substantially all the
corporate trust business of the Trustee in its individual capacity may be sold
or otherwise transferred, shall be the Trustee hereunder without further act.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee, and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of authentication of the Trustee
shall have.
SECTION 7.10. Eligibility; Disqualification
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in
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other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Issuer
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.
SECTION 7.12. Trustee's Application for Instructions from the Issuer
Any application by the Trustee for written instructions from the Issuer may,
at the option of the Trustee, be set forth in writing and shall state any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any Officer of the Issuer actually receives
such application, unless any such Officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) When
(i) the Issuer delivers to the Trustee all outstanding Notes (other
than Notes replaced pursuant to Section 2.08) for cancellation or
(ii) all outstanding Notes have become due and payable, whether at
Stated Maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Issuer irrevocably deposits with the
Trustee funds sufficient to pay at Stated Maturity or upon redemption all
outstanding Notes, including interest accrued and unpaid thereon to Stated
Maturity or such Redemption Date (other than Notes replaced pursuant to
Section 2.08), and if in either case the Issuer pays all other sums
payable hereunder by the Issuer, then this Indenture shall, subject to
Section 8.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel
addressed to the Trustee and at the cost and expense of the Issuer.
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(b) Subject to Sections 8.01(c) and 8.02, the Issuer at any time may
terminate:
(i) all its obligations under the Notes and this Indenture ("legal
defeasance option") subject to the following which shall survive until
otherwise terminated or discharged hereunder:
(A) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, premium, if any, and
interest and Liquidated Damages, if any, on such Notes when payments
are due from the trust referred to below,
(B) the Issuer's obligations with respect to such Notes under
Sections 2.03, 2.04, 2.07, 2.08, 2.10, 4.02, 4.03 and 4.04 hereof,
(C) the Issuer's obligations under the Registration Rights
Agreement,
(D) the rights, powers, trusts, duties and immunities of the
Trustee under this Indenture and the Issuer's obligations in
connection therewith,
(E) Article 3 hereof, and
(F) this Article 8; or
(ii) its obligations under Sections 4.05 through 4.16, 4.20 and 4.21
and the operation of Section 6.01(c) (but only as it applies to Section
5.01(a)(iii) and (iv)), 6.01(e), 6.01(f), 6.01(g) and 6.01(h) (but with
respect to Section 6.01(f) and 6.01(g) only as they apply to Subsidiaries
of the Issuer) or its obligations contained in Section 5.01(a)(iii) and
(iv) ("covenant defeasance option"). The Issuer may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Issuer exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default. If the Issuer exercises
its covenant defeasance option, payment of the Notes may not be accelerated
because of an Event of Default specified in Sections 6.01(c) (except with
respect to violations of Section 5.01), 6.01(d), 6.01(e), 6.01(f), 6.01(g),
6.01(h) and 6.01(i) (but with respect to Section 6.01(f) and 6.01(g) only as
they apply to Subsidiaries of the Issuer) or because of the failure of the
Issuer to comply with Section 5.01(a)(iii) and (iv). If the Issuer exercises its
legal defeasance option or its covenant defeasance option, each Guarantor shall
be released from all of its obligations under its Guarantee (if any should then
exist).
Upon satisfaction of the conditions set forth herein and upon request of
the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's obligations in
Sections
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8.04, 8.05 and 8.06 shall survive.
SECTION 8.02. Conditions to Defeasance
The Issuer may exercise its legal defeasance option or its covenant
defeasance option only if
(a) the Issuer irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal of and interest on the
Notes to maturity or redemption, as the case may be;
(b) the Issuer delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal of, premium, if any, and interest and Liquidated
Damages, if any, when due on all the Notes to Stated Maturity or redemption, as
the case may be;
(c) one hundred twenty-three (123) days pass after the deposit is made and
during the one hundred twenty-three (123) day period no Default specified in
Sections 6.01(f) or (g) with respect to the Issuer occurs which is continuing at
the end of the period;
(d) the deposit does not result in a breach or violation of, or constitute
a default under any other agreement or instrument binding on the Issuer or any
of its Subsidiaries and is not prohibited by Article 10;
(e) the Issuer delivers to the Trustee an Opinion of Counsel addressed to
the Trustee to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(f) in the case of the legal defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel addressed to the Trustee stating
that (i) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Noteholders will not recognize income, gain or loss for Federal income
tax purposes as a result of such 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 defeasance had not occurred;
(g) in the case of the covenant defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel addressed to the Trustee to the
effect that the Noteholders 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;
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(h) the Issuer delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel addressed to the Trustee, each stating that all conditions
precedent to the defeasance and discharge of the Notes as contemplated by this
Article 8 have been complied with;
(i) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuer with the intent
of preferring the Holders over any other creditors of the Issuer or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Issuer or others; and
(j) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the TIA (assuming
for the purpose of this clause (j) that all Notes are in default within the
meaning of such Act).
Before or after a deposit, the Issuer may make arrangements satisfactory
to the Trustee for the redemption of Notes at a future date in accordance with
Article 3.
SECTION 8.03. Application of Trust Money
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium, if any,
and interest and Liquidated Damages, if any, on the Notes.
Money and securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Issuer
The Trustee and the Paying Agent shall promptly turn over to the Issuer upon
written request any excess money or securities held by them at any time. Subject
to any applicable abandoned property law, the Trustee and the Paying Agent shall
pay to the Issuer upon written request any money held by them for the payment of
principal of, premium, if any, or interest or Liquidated Damages, if any, that
remains unclaimed for two years, and, thereafter, Noteholders entitled to the
money must look to the Issuer for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligation
The Issuer shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06. Reinstatement
If the Trustee or Paying Agent is unable to apply any money or U. S.
Government Obligations in accordance with this Article 8 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
Issuer's obligations under this Indenture and the Notes shall be revived and
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reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article 8; provided, that,
if the Issuer has made any payment of interest on or principal of any Notes
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders
The Issuer and the Trustee may amend this Indenture (including any supplement
thereto) or the Notes without notice to or consent of any Noteholder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article 5;
(c) to provide for uncertificated Notes in addition to or in place of
Certificated Notes; provided, that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Internal Revenue Code or
in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Internal Revenue Code;
(d) to make any change in Article 10 or Article 12 that would limit or
terminate the benefits available to any holder of Senior Indebtedness (or
Representatives thereof) under Article 10 or Article 12;
(e) to add Guarantees with respect to the Notes or to secure the Notes;
(f) to add to the covenants of the Issuer for the benefit of the Holders
or to surrender any right or power herein conferred upon the Issuer;
(g) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the TIA;
or
(h) to make any change that does not adversely affect the rights of any
Noteholder.
An amendment under this Section 9.01 may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or Representative thereof authorized to give a
consent) consent in writing to such change.
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After an amendment under this Section 9.01 becomes effective, the Issuer
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders
The Issuer and the Trustee may amend this Indenture or the Notes without
notice to any Noteholder but with the written consent of the Holders of at least
a majority in principal amount of the Notes then outstanding and any past
Default or compliance with any provisions may also be waived with the consent of
the Holders of not less than a majority of the principal amount of Notes then
outstanding. However, without the consent of each Noteholder affected, an
amendment may not:
(a) reduce the amount of Notes whose Holders must consent to an amendment;
(b) reduce the rate of or extend the time for payment of interest on any
Note;
(c) reduce the principal of or extend the Stated Maturity of any Note;
(d) reduce the premium, if any, payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with Article 3;
(e) make any Note payable in money other than that stated in the Note;
(f) make any change in Article 10 or Article 12 that adversely affects the
rights of any Noteholder under Article 10 or Article 12;
(g) make any change in Section 6.04 or 6.07 or the second sentence of this
Section 9.02; or
(h) make any change in any Guarantee (if any should then exist) that would
adversely affect the Noteholders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof
An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article 10 or any supplemental indenture
executed pursuant to Section 4.21 of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent in writing to such
change. The holders of Senior Indebtedness are intended third party
beneficiaries of this Indenture and the terms of the preceding sentence may not
be amended without the
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consent of the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give consent).
After an amendment under this Section 9.02 becomes effective, the Issuer
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act
Every amendment to this Indenture or the Notes shall comply with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers
A consent to an amendment or a waiver by a Holder of a Note shall bind the
Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder's Note, even if notation of the
consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Note or
portion of the Note if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Noteholder. An amendment or waiver
becomes effective upon the execution of such amendment or waiver by the Trustee.
The Issuer may, but shall not be obligated to, fix a Record Date for the
purpose of determining the Noteholders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a Record Date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such Record Date.
SECTION 9.05. Notation on or Exchange of Notes
If an amendment changes the terms of a Note, the Trustee may require the
Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue and the Trustee shall authenticate
and deliver a new Note that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
SECTION 9.06. Trustee To Sign Amendments
The Trustee shall sign any amendment authorized pursuant to this Article 9 if
the amendment 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 such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 7.01)
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that
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such amendment is authorized or permitted by this Indenture and that such
amendment constitutes the legal, valid and binding obligation of the Issuer and
each Guarantor, subject to customary exceptions.
SECTION 9.07. Payment for Consent
Neither the Issuer nor any Affiliate of the Issuer shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder 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 to all Holders that
so consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
ARTICLE 10
SUBORDINATION OF THE NOTES
SECTION 10.01. Agreement To Subordinate
The Issuer agrees, and each Noteholder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment of
all Senior Indebtedness of the Issuer and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. Only
Indebtedness that is Senior Indebtedness will rank senior to the Notes in
accordance with the provisions set forth herein. The Notes shall in all respects
rank pari passu with, or be senior to, all other Indebtedness of the Issuer. All
provisions of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy
Upon any payment or distribution of the assets of the Issuer to creditors
upon a total or partial liquidation or a total or partial dissolution of the
Issuer or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Issuer or its property:
(a) holders of Senior Indebtedness of the Issuer shall be entitled to
receive payment in full of such Senior Indebtedness in cash or cash equivalents
before Noteholders shall be entitled to receive any payment of principal of,
premium, if any, or interest or Liquidated Damages, if any, on the Notes; and
(b) until such Senior Indebtedness is paid in full in cash or cash
equivalents, any distribution to which Noteholders would be entitled but for
this Article 10 shall be made to holders of such Senior Indebtedness as their
interests may appear, except that Noteholders may receive (i) securities of a
Person that are approved by a court of competent jurisdiction and are
subordinated ("Subordinated Reorganization Securities") to such Senior
Indebtedness to at least the same extent as the Notes are subordinated to (A)
Senior Indebtedness of the Issuer and (B) any securities issued in exchange for
Senior Indebtedness, and (ii) payments and other
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distributions made from any defeasance trust created pursuant to Section 8.01
hereof.
SECTION 10.03. Default on Senior Indebtedness of the Issuer
The Issuer may not pay the principal of, premium, if any, or interest or
Liquidated Damages, if any, on the Notes or make any deposit pursuant to Section
8.01 and may not repurchase, redeem or defease any Notes (collectively, "pay the
Notes") (other than Subordinated Reorganization Securities and payments and
other distributions made from any defeasance trust created pursuant to Section
8.01 hereof) if (i) any principal, interest, fees or other obligations in
respect of Designated Senior Indebtedness of the Issuer is not paid when due
unless the default has been cured or waived; provided, however, that the Issuer
may pay the Notes without regard to the foregoing if the Issuer and the Trustee
receive written notice approving such payment from the Representative of such
Designated Senior Indebtedness. During the continuance of any default (other
than a default described in the preceding sentence) with respect to any
Designated Senior Indebtedness of the Issuer pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods, the Issuer may not pay the Notes for a period (a
"Payment Blockage Period") commencing upon the receipt by the Issuer and the
Trustee of written notice (a "Blockage Notice") of such default from the
Representative of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee
and the Issuer from the Person or Persons who gave such Blockage Notice, (ii) by
repayment in full of such Designated Senior Indebtedness or (iii) because the
Representative of the holders of such Designated Senior Indebtedness shall have
notified the Trustee in writing that the default giving rise to such Blockage
Notice is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section 10.03), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have accelerated
the maturity of such Designated Senior Indebtedness, the Issuer may resume
payments on the Notes after such Payment Blockage Period. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Designated Senior Indebtedness during
such period. For purposes of this Section 10.03, no default or event of default
which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Notes
If payment of the Notes is accelerated because of an Event of Default, the
Issuer shall promptly notify the holders of the Designated Senior Indebtedness
(or their Representative) of the acceleration.
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SECTION 10.05. When Distribution Must Be Paid Over
If a distribution is made to Noteholders that because of this Article 10
should not have been made to them, the Issuer shall so notify the Noteholders
who receive the distribution, which Noteholders shall hold it in trust for
holders of Senior Indebtedness of the Issuer and pay it over to them as their
interests may appear.
SECTION 10.06. Subrogation
After all Senior Indebtedness of the Issuer is paid in full and until the
Notes are paid in full, Noteholders shall be subrogated to the rights of holders
of such Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness. A distribution made under this Article 10 to holders of such
Senior Indebtedness which otherwise would have been made to Noteholders is not,
as between the Issuer and Noteholders, a payment by the Issuer on such Senior
Indebtedness.
SECTION 10.07. Relative Right
This Article 10 defines the relative rights of Noteholders and holders of
Senior Indebtedness of the Issuer. Nothing in this Indenture shall:
(a) impair, as between the Issuer and Noteholders, the obligation of the
Issuer, which is absolute and unconditional, to pay principal of, premium, if
any, and interest and Liquidated Damages, if any, on the Notes in accordance
with their terms; or
(b) prevent the Trustee or any Noteholder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Indebtedness
of the Issuer to receive distributions otherwise payable to Noteholders.
SECTION 10.08. Subordination May Not Be Impaired by Issuer
No right of any holder of Senior Indebtedness of the Issuer to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Issuer or by its failure to comply with this
Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to
make payments on the Notes and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice from a holder of Designated
Senior Indebtedness that it is exercising its rights under Section 10.03. The
Issuer, the Registrar or co-registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness may give the notice; provided, however, that, if
the holders of an issue of Senior Indebtedness of the Issuer have a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Issuer with the same rights it would have if it were not
Trustee. The Registrar and coregistrar and the Paying Agent may do the same with
like rights. The Trustee shall be entitled to all the rights
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set forth in this Article 10 with respect to any Senior Indebtedness of the
Issuer which may at any time be held by it, to the same extent as any other
holder of such Senior Indebtedness, and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 10 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 10.10. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Issuer, the distribution may be made and the notice given to
their Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit Right
To Accelerate
The failure to make a payment pursuant to the Notes by reason of any
provision in this Article 10 shall not be construed as preventing the occurrence
of a Default. Nothing in this Article 10 shall have any effect on the right of
the Noteholders or the Trustee to accelerate the maturity of the Notes.
SECTION 10.12. Trust Moneys Not Subordinated
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in trust under Article
8 by the Trustee for the payment of principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article 10, and none of the Noteholders or Trustee shall be
obligated to pay over any such amount to the Issuer or any holder of Senior
Indebtedness of the Issuer or any other creditor of the Issuer.
SECTION 10.13. Trustee Entitled To Rely
Upon any payment or distribution pursuant to this Article 10, the Trustee and
the Noteholders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 10.02 are pending, (ii) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Noteholders or (iii) upon the Representative for the holders
of Senior Indebtedness of the Issuer for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Senior Indebtedness and other Indebtedness of the Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Issuer to participate in
any payment or distribution pursuant to this Article 10, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
other facts pertinent to the rights of such Person under this Article 10, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Sections 7.01 and 7.02
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shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination
Each Noteholder by accepting a Note authorizes and directs the Trustee on
such Noteholder's behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination between the Noteholders and the
holders of Senior Indebtedness of the Issuer as provided in this Article 10 and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for 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 if it shall
mistakenly pay over or distribute to Noteholders or the Issuer or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Issuer shall be entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions
Each Noteholder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness of the Issuer,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Notes, to acquire and continue to hold, or to continue to hold,
such Senior Indebtedness and such holder of such Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE 11
GUARANTEES; RELEASE OF GUARANTEES;
ADDITIONAL GUARANTEES
SECTION 11.01. Guarantees
(a) Each Guarantor hereby unconditionally and irrevocably guarantees to
each Holder and to the Trustee and its successors and assigns (i) the full and
punctual payment of principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Issuer under
this Indenture and the Notes and (ii) the full and punctual performance within
applicable grace periods of all other obligations of the Issuer under this
Indenture and the Notes (all the foregoing being hereinafter collectively called
the "Obligations"). Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without
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notice or further assent from such Guarantor and that such Guarantor will remain
bound under this Article 11 notwithstanding any extension or renewal of any
Obligation.
(b) Each Guarantor waives presentation to, demand of, payment from and
protest to the Issuer of any of the Obligations and also waives notice of
protest for nonpayment. Each Guarantor waives notice of any default under the
Notes or the Obligations. The obligations of each Guarantor hereunder shall not
be affected by (i) the failure of any Holder or the Trustee to assert any claim
or demand or to enforce any right or remedy against the Issuer or any other
Person under this Indenture, the Notes or any other agreement or otherwise, (ii)
any extension or renewal of any thereof, (iii) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Indenture, the Notes
or any other agreement, (iv) the release of any security held by any Holder or
the Trustee for the Obligations or any of them, (v) the failure of any Holder or
Trustee to exercise any right or remedy against any other guarantor of the
Obligations, or (vi) any change in the ownership of any Guarantor.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Obligations.
(d) Each Guarantee is, to the extent and in the manner set forth in
Article 12, subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness of such Guarantor and is made subject to such
provisions of this Indenture.
(e) Except as expressly set forth in Section 8.01(b), the obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, (i) the obligations
of each Guarantor herein shall not be discharged or impaired or otherwise
affected by the failure of any Holder or the Trustee to assert any claim or
demand or to enforce any remedy under this Indenture, the Notes or any other
agreement, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or to any extent vary the risk of each Guarantor or would
otherwise operate as a discharge of such Guarantor as a matter of law or equity
and (ii) each Guarantor hereby waives any right such Guarantor may have under
Sections 26.7 through 26.9 of the North Carolina General Statutes.
(f) Each Guarantor further agrees that its Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal, premium, if any, or interest or Liquidated
Damages, if any, on any Obligation is rescinded or must otherwise be restored by
any Holder or the Trustee upon the bankruptcy or
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reorganization of the Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal
of, premium, if any or interest or Liquidated damages, if any, on any Obligation
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Obligation, each
Guarantor hereby promises to and will, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (i) the unpaid amount of such Obligations,
(ii) accrued and unpaid interest on such Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary Obligations of the Issuer to the
Holders and the Trustee.
(h) Each Guarantor agrees that it shall not be entitled to any right of
subrogation in respect of any Obligations guaranteed hereby until payment in
full of all Obligations and all obligations to which the Obligations are
subordinated as provided in Article 12. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article 6 for the purposes of such Guarantor's Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Guarantor for the purposes of this Section 11.01.
(i) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses, including the allocated
reasonable costs and expenses of its in-house counsel and legal staff) incurred
by the Trustee or any Holder in enforcing any rights under this Section 11.01.
(j) This Article 11 does not apply unless a supplemental joinder is
executed pursuant to Section 4.21.
SECTION 11.02. Successors and Assigns
This Article 11 shall be binding upon each Guarantor and its successors and
assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges conferred upon
that party in this Indenture and in the Notes shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
SECTION 11.03. No Waiver
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 11 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege.
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The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 11 at law, in
equity, by statute or otherwise.
SECTION 11.04. Modification
No modification, amendment or waiver of any provision of this Article 11, nor
the consent to any departure by any Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on any Guarantor in any
case shall entitle such Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 11.05. Limitation of Guarantor's Liability
Each Guarantor, the Trustee, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, federal and state fraudulent conveyance laws or any similar
federal, state or foreign law. To effectuate the foregoing intention, the
Holders, the Trustee and each Guarantor hereby irrevocably agree that the
obligations of each Guarantor under this Article 11 shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable federal, state or foreign law.
SECTION 11.06. Release of Guarantees
In the event of a sale or other disposition of all or substantially all of
the assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Capital Stock of any Guarantor, by way
of merger, consolidation or otherwise, such Guarantor (in the event of a sale or
other disposition of all of the Capital Stock of such Guarantor) will be
released and relieved of any obligations under its Guarantee or the Person
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will not be required to enter
into a Guarantee; provided, in each case, that such transaction is carried out
pursuant to and in accordance with Section 4.11 and Section 5.01 (if applicable)
hereof. Upon delivery by the Issuer to the Trustee of an Officers' Certificate
and Opinion of Counsel addressed to the Trustee, to the effect that such sale or
other disposition was made by the Issuer in accordance with the provisions of
this Indenture, including without limitation Section 4.11 and Section 5.01 (if
applicable) hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any such Guarantor from its obligations
under its Guarantee.
ARTICLE 12
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SUBORDINATION OF THE GUARANTEES
SECTION 12.01. Agreement To Subordinate
Each Guarantor agrees, and each Noteholder by accepting a Note agrees, that
the obligations of such Guarantor are subordinated in right of payment, to the
extent and in the manner provided in this Article 12, to the prior payment of
all Senior Indebtedness of such Guarantor and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. Only
Senior Indebtedness of each Guarantor shall rank senior to the obligations of
such Guarantor in accordance with the provisions set forth herein. The
obligations of each Guarantor shall in all respects rank pari passu with, or be
senior to, all other Indebtedness of such Guarantor.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy
Upon any payment or distribution of the assets of any Guarantor to creditors
upon a total or partial liquidation or a total or partial dissolution of such
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the such Guarantor or its property:
(1) holders of Senior Indebtedness of such Guarantor shall be entitled to
receive payment in full of such Senior Indebtedness in cash or cash equivalents
before Noteholders shall be entitled to receive any payment pursuant to the
Guarantee of such Guarantor; and
(2) until the Senior Indebtedness of such Guarantor is paid in full in
cash or cash equivalents, any distribution to which Noteholders would be
entitled but for this Article 12 shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Noteholders may receive
Subordinated Reorganization Securities and payments and other distributions made
from any defeasance trust created pursuant to Section 8.01 hereof.
SECTION 12.03. Default on Senior Indebtedness of Guarantor
No Guarantor may make any payment pursuant to any of its obligations or
repurchase, redeem or otherwise retire or defease any Notes or other Obligations
(collectively, "pay its Guarantee") (other than Subordinated Reorganization
Securities and payments and other distributions from any defeasance trust
created pursuant to Section 8.01 hereof) if any principal, interest, fees or
other obligations in respect of Designated Senior Indebtedness of the relevant
Guarantor is not paid when due unless the default has been cured or waived.
However, such Guarantor may pay its Guarantee without regard to the foregoing if
such Guarantor and the Trustee receive written notice approving such payment
from the Representative of the Designated Senior Indebtedness of such Guarantor
with respect to which the event set forth in the immediately preceding sentence
has occurred and is continuing. During the continuance of any default (other
than a default described in the second preceding sentence) with respect to any
Designated Senior Indebtedness of such Guarantor pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods, such Guarantor may not pay its
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Guarantee for the Payment Blockage Period commencing upon the receipt by the
Trustee (with a copy to such Guarantor) of a Blockage Notice from the
Representative of the holders of such Designated Senior Indebtedness and ending
179 days thereafter (or earlier if such Payment Blockage Period is terminated
(i) by written notice to the Trustee and such Guarantor from the Person or
Persons who gave such Blockage Notice, (ii) because a Representative of the
holders of such Designated Senior Indebtedness has notified the Trustee that the
default giving rise to such Blockage Notice is no longer continuing or (iii)
because such Designated Senior Indebtedness has been repaid in full).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the first sentence of this paragraph), unless the holders of
such Designated Senior Indebtedness of such Guarantor or the Representative of
such holders have accelerated the maturity of such Designated Senior
Indebtedness, such Guarantor may resume payments on its Guarantee after the end
of such Payment Blockage Period. Each Guarantee shall not be subject to more
than one Payment Blockage Period in any consecutive 360-day period, irrespective
of the number of defaults with respect to Designated Senior Indebtedness of a
Guarantor during such period. For purposes of this Section 12.03, no default or
event of default which existed or was continuing on the date of the commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a
period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
SECTION 12.04. Demand for Payment
If a demand for payment is made on any Guarantor pursuant to Article 11, such
Guarantor shall promptly notify the holders of the Designated Senior
Indebtedness (or their Representatives) of such Guarantor of such demand.
SECTION 12.05. When Distribution Must Be Paid Over
If a distribution is made to Noteholders that because of this Article 12
should not have been made to them, the applicable Guarantor shall notify the
Noteholders who receive the distribution, which Noteholders shall hold it in
trust for holders of the relevant Senior Indebtedness of such Guarantor and pay
it over to them or their Representative as their interests may appear.
SECTION 12.06. Subrogation
After all Senior Indebtedness of each Guarantor is paid in full and until the
Notes are paid in full, Noteholders shall be subrogated to the rights of holders
of such Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness. A distribution made under this Article 12 to holders of such
Senior Indebtedness which otherwise would have been made to Noteholders is not,
as between each Guarantor and Noteholders, a payment by such Guarantor on such
Senior Indebtedness.
SECTION 12.07. Relative Rights
This Article 12 defines the relative rights of Noteholders and holders of
Senior Indebtedness of
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each Guarantor. Nothing in this Indenture shall:
(1) impair, as between each Guarantor and the Noteholders, the obligation
of the such Guarantor, which is absolute and unconditional, to pay its
obligations to the extent set forth in Article 11; or
(2) prevent the Trustee or any Noteholder from exercising its available
remedies upon a default by any Guarantor under its obligations, subject to the
rights of holders of Senior Indebtedness of such Guarantor to receive
distributions otherwise payable to Noteholders.
SECTION 12.08. Subordination May Not Be Impaired by Guarantor
No right of any holder of Senior Indebtedness of any Guarantor to enforce the
subordination of the obligations of such Guarantor shall be impaired by any act
or failure to act by such Guarantor or by its failure to comply with this
Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to
demand payments on each Guarantee and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice from a holder of Designated
Senior Indebtedness that it is exercising its rights under Section 12.03. The
Issuer, each Guarantor, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of any Guarantor may give the
notice; provided, however, that, if an issue of Senior Indebtedness of any
Guarantor has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of any Guarantor with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 12 with respect to any Senior Indebtedness of any Guarantor which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 12 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 12.10. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of any Guarantor, the distribution may be made and the notice given
to their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Defaults Under the Guarantees or
Limit Right To Demand Payment
The failure to make a payment pursuant to any Guarantee by reason of any
provision in this Article 12 shall not be construed as preventing the occurrence
of a default under such Guarantee.
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Nothing in this Article 12 shall have any effect on the right of the Noteholders
or the Trustee to make a demand for payment on any Guarantor pursuant to Article
11.
SECTION 12.12. Trustee Entitled To Rely
Upon any payment or distribution pursuant to this Article 12, the Trustee and
the Noteholders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 12.02 are pending, (ii) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Noteholders or (iii) upon the Representative for the holders
of Senior Indebtedness of any Guarantor for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
such Senior Indebtedness and other indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 12. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of such Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of such
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination
Each Noteholder by accepting a Note authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Noteholders and the holders of Senior
Indebtedness of any Guarantor as provided in this Article 12 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness of
Guarantors
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness of any Guarantor and shall not be liable to any such holders
if it shall mistakenly pay over or distribute to Noteholders or the Issuer or
any other Person, money or assets to which any holders of such Senior
Indebtedness shall be entitled by virtue of this Article 12 or otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness on Subordination
Provisions.
Each Noteholder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness of any Guarantor,
whether such Senior Indebtedness was
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created or acquired before or after the issuance of the Notes, to acquire and
continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. 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 13.02. Notices
Any notice or communication by the Issuer, any Guarantor or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address
as follows:
if to the Issuer or any Guarantor:
Susquehanna Media Co.
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx
if to the Trustee:
Chase Manhattan Trust Company, National Association
One Liberty Place
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Capital Markets Fiduciary Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(Susquehanna Media Co. 8-1/2% Senior Subordinated Notes
due 2009)
The Issuer, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communication.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if
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telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, to its address shown on
the register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each agent at the same time.
SECTION 13. 03. Communication 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
Issuer, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Issuer to the Trustee to take or
refrain from taking any action under this Indenture, the Issuer shall furnish to
the Trustee:
(1) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee 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 in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual 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 individual, he has made such
examination
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or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
SECTION 13.06. When Notes Disregarded
In determining whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent, Notes owned by the Issuer or
by any Affiliate of the Issuer shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Notes outstanding at the time shall be considered
in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar
The Trustee may make reasonable rules for action by or a meeting of
Noteholders. The Registrar and the Paying Agent may make reasonable rules for
their functions.
SECTION 13.08. Legal Holidays
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required or are not authorized to be open in the State of
New York or the State in which the Corporate Trust Office is located. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
SECTION 13.09. Governing Law
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
(b) Each of the Issuer and each Guarantor hereby (i) agrees that any suit,
action or proceeding against it arising out of or relating to this Indenture or
the Notes, as the case may be, may be instituted in any Federal or state court
sitting in The City of New York, (ii) waives, to the extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding, and any claim that any suit,
action or proceeding in such a court has been brought in an inconvenient forum,
(iii) irrevocably submits to the non-exclusive jurisdiction of such courts in
any suit, action or proceeding, (iv) agrees that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon each and may be enforced in the courts of the jurisdiction of which
each is subject, respectively, by a suit upon judgment, (v) agrees that service
of process by mail to the addressed specified in Section 13.02 hereof shall
constitute personal service of such process on it
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in any such suit, action or proceeding.
SECTION 13.10. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Issuer or
any Guarantor, as such, shall have any liability for any obligations of the
Issuer or such Guarantor under the Notes, the Guarantees or this Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Issuer or such Guarantor. By accepting a
Note, each Holder waives and releases all such liability (but only such
liability) as part of the consideration for issuance of such Note to such
Holder.
SECTION 13.11. Successors, Assigns and Transferees
All agreements of the Issuer and each Guarantor in this Indenture and the
Notes shall bind their respective successors and assigns. All agreements of the
Trustee and the Initial Purchasers in this Indenture shall bind their respective
successors, assigns and transferees.
SECTION 13.12. Multiple Originals
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 13.13. Table of Contents, Headings
The table of contents, cross-reference table and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.
SECTION 13.14. Severability
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.15. Further Instruments and Acts
Upon request of the Trustee, the Issuer and each Guarantor will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this
Indenture.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
SUSQUEHANNA MEDIA CO.,
as Issuer,
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
Chief Executive Officer and President
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee,
By: /s/ X.X. Xxxxxx
Name: X.X. Xxxxxx
Title: Vice President
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SUSQUEHANNA MEDIA CO.
Issuer
$150,000,000
8-1/2% Senior Subordinated Notes due 2009
INDENTURE
Dated as of May 12, 1999
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
Trustee
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
310(a)(5) 7.10
(b) 7.08; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 13.03
(c) 13.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 13.02
(d) 7.06
314(a) 4.07;13.02
(b) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d) N.A.
(e) 13.05
(f) 4.11
315(a) 7.01
(b) 7.05; 13.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 13.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
316(c) 9.04
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
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318(a) 13.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.01. Definitions 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act 22
SECTION 1.03. Rules of Construction 22
ARTICLE 2 THE NOTES 23
SECTION 2.01. Form and Dating 23
SECTION 2.02. Execution and Authentication 27
SECTION 2.03. Registrar and Paying Agent 28
SECTION 2.04. Paying Agent To Hold Money in Trust 29
SECTION 2.05. Holder Lists 29
SECTION 2.06. Global Notes 29
SECTION 2.07. Transfer and Exchange 30
SECTION 2.08. Replacement Notes 38
SECTION 2.09. Outstanding Notes 38
SECTION 2.10. Temporary Notes 38
SECTION 2.11. Cancellation 39
SECTION 2.12. Payment of Interest, Interest Rights Preserved 39
SECTION 2.13. Add-On Notes 40
SECTION 2.15. Transfers, etc 41
ARTICLE 3 REDEMPTION 41
SECTION 3.01. Notices to Trustee 41
SECTION 3.02. Selection of Notes To Be Redeemed 41
SECTION 3.03. Notice of Redemption 41
SECTION 3.04. Effect of Notice of Redemption 42
SECTION 3.05. Deposit of Redemption Price 42
SECTION 3.06. Notes Redeemed in Part 43
ARTICLE 4 COVENANTS 43
SECTION 4.01. Payment of Notes 43
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SECTION 4.02. Maintenance of Office or Agency 43
SECTION 4.03. Money for the Notes to be Held in Trust 44
SECTION 4.04. Corporate Existence 44
SECTION 4.05. Maintenance of Property 44
SECTION 4.06. Payment of Taxes and Other Claims 45
SECTION 4.07. SEC and Other Reports 45
SECTION 4.08. Limitation on Indebtedness 45
SECTION 4.09. Limitation on Restricted Payments 46
SECTION 4.10. Limitation on Restrictions on Distributions from
Restricted Subsidiaries 47
SECTION 4.11. Limitation on Sales of Assets and Subsidiary
Stock 49
SECTION 4.12. Limitation on Affiliate Transactions 52
SECTION 4.13. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries 53
SECTION 4.14. Change of Control 54
SECTION 4.15. Limitation on Liens 57
SECTION 4.16. Limitation on Layered Indebtedness 57
SECTION 4.17. Compliance Certificate 57
SECTION 4.18. Waiver of Stay, Extension or Usury Laws 58
SECTION 4.19. Investment Company Act 58
SECTION 4.20. Limitation on Conduct of Business 58
SECTION 4.21. Guarantees of Certain Indebtedness 58
SECTION 4.22. Further Instruments and Acts 58
ARTICLE 5 SUCCESSOR COMPANY 58
SECTION 5.01. When Issuer May Merge or Transfer Assets 58
ARTICLE 6 DEFAULTS AND REMEDIES 60
SECTION 6.01. Events of Default 60
SECTION 6.02. Acceleration 61
SECTION 6.03. Other Remedies 62
SECTION 6.04. Waiver of Past Defaults 62
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SECTION 6.05. Control by Majority 62
SECTION 6.06. Limitation on Suits 63
SECTION 6.07. Rights of Holders To Receive Payment 63
SECTION 6.08. Collection Suit by Trustee 63
SECTION 6.09. Trustee May File Proofs of Claim 63
SECTION 6.10. Priorities 64
SECTION 6.11. Undertaking for Costs 64
SECTION 6.12. Waiver of Stay or Extension Laws 64
ARTICLE 7 TRUSTEE 64
SECTION 7.01. Duties of Trustee 65
SECTION 7.02. Rights of Trustee 66
SECTION 7.03. Individual Rights of Trustee 66
SECTION 7.04. Trustee's Disclaimer 66
SECTION 7.05. Notice of Defaults 67
SECTION 7.06. Reports by Trustee to Holders 67
SECTION 7.07. Compensation and Indemnity 67
SECTION 7.08. Replacement of Trustee 68
SECTION 7.09. Successor Trustee by Merger 69
SECTION 7.10. Eligibility; Disqualification 69
SECTION 7.11. Preferential Collection of Claims Against Issuer 69
SECTION 7.12. Trustee's Application for Instructions from the
Issuer 70
ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE 70
SECTION 8.01. Discharge of Liability on Notes; Defeasance 70
SECTION 8.02. Conditions to Defeasance 71
SECTION 8.03. Application of Trust Money 73
SECTION 8.04. Repayment to Issuer 73
SECTION 8.05. Indemnity for Government Obligation 73
SECTION 8.06. Reinstatement 73
ARTICLE 9 AMENDMENTS 73
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SECTION 9.01. Without Consent of Holders 73
SECTION 9.02. With Consent of Holders 74
SECTION 9.03. Compliance with Trust Indenture Act 75
SECTION 9.04. Revocation and Effect of Consents and Waivers 75
SECTION 9.05. Notation on or Exchange of Notes 76
SECTION 9.06. Trustee To Sign Amendments 76
SECTION 9.07. Payment for Consent 76
ARTICLE 10 SUBORDINATION OF THE NOTES 76
SECTION 10.01. Agreement To Subordinate 76
SECTION 10.02. Liquidation, Dissolution, Bankruptcy 76
SECTION 10.03. Default on Senior Indebtedness of the Issuer 77
SECTION 10.04. Acceleration of Payment of Notes 78
SECTION 10.05. When Distribution Must Be Paid Over 78
SECTION 10.06. Subrogation 78
SECTION 10.07. Relative Right 78
SECTION 10.08. Subordination May Not Be Impaired by Issuer 78
SECTION 10.09. Rights of Trustee and Paying Agent 78
SECTION 10.10. Distribution or Notice to Representative 79
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate 79
SECTION 10.12. Trust Moneys Not Subordinated 79
SECTION 10.13. Trustee Entitled To Rely 79
SECTION 10.14. Trustee To Effectuate Subordination 80
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness 80
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions 80
ARTICLE 11 GUARANTEES; RELEASE OF GUARANTEES; ADDITIONAL GUARANTEES 80
SECTION 11.01. Guarantees 80
SECTION 11.02. Successors and Assigns 82
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SECTION 11.03. No Waiver 82
SECTION 11.04. Modification 82
SECTION 11.05. Limitation of Guarantor's Liability 82
SECTION 11.06. Release of Guarantees 83
ARTICLE 12 SUBORDINATION OF THE GUARANTEES 83
SECTION 12.01. Agreement To Subordinate 83
SECTION 12.02. Liquidation, Dissolution, Bankruptcy 83
SECTION 12.03. Default on Senior Indebtedness of Guarantor 84
SECTION 12.04. Demand for Payment 85
SECTION 12.05. When Distribution Must Be Paid Over 85
SECTION 12.06. Subrogation 85
SECTION 12.07. Relative Rights 85
SECTION 12.08. Subordination May Not Be Impaired by Guarantor 85
SECTION 12.09. Rights of Trustee and Paying Agent 85
SECTION 12.10. Distribution or Notice to Representative 86
SECTION 12.11. Article 12 Not To Prevent Defaults Under the
Guarantees or Limit Right To Demand Payment 86
SECTION 12.12. Trustee Entitled To Rely 86
SECTION 12.13. Trustee To Effectuate Subordination 86
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of Guarantors 87
SECTION 12.15. Reliance by Holders of Senior Indebtedness on
Subordination Provisions 87
ARTICLE 13 MISCELLANEOUS 87
SECTION 13.01. Trust Indenture Act Controls 87
SECTION 13.02. Notices 87
SECTION 13.03. Communication by Holders with Other Holders 88
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent 88
SECTION 13.05. Statements Required in Certificate or Opinion 88
SECTION 13.06. When Notes Disregarded 89
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107
SECTION 13.07. Rules by Trustee, Paying Agent and Xxxxxxxxx 00
SECTION 13.08. Legal Holidays 89
SECTION 13.09. Governing Law 89
SECTION 13.10. No Recourse Against Others 90
SECTION 13.11. Successors, Assigns and Transferees 90
SECTION 13.12. Multiple Originals 90
SECTION 13.13. Table of Contents, Headings 90
SECTION 13.14. Severability 90
SECTION 13.15. Further Instruments and Acts 90
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EXHIBITS
Exhibit A - Form of Initial Global Note
Exhibit B - Form of Initial Certificated Note
Exhibit C - Form of Exchange Global Note
Exhibit D - Form of Exchange Certificated Note
Exhibit E - Form of Transfer Certificate For Transfer to a QIB
Exhibit F - Form of Transfer Certificate for Transfer to an
Institutional Accredited Investor
Exhibit G - Form of Investment Letter for Institutional Accredited
Investors
Exhibit H - Form of Transfer Certificate for Transfer to a Non-U.S.
Person
Exhibit I - Form of Investment Letter for Regulation S Purchasers
Exhibit J - Form of Registration Rights Agreement
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