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EXHIBIT 4.1
TRI-STATE OUTDOOR MEDIA GROUP, INC.,
Issuer,
and
IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
--------------------
INDENTURE
Dated as of May 15, 1998
---------------------
$100,000,000
11% Senior Notes due 2008
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TRI-STATE OUTDOOR MEDIA GROUP, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF MAY 15, 1998
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) .................................... 607
(a)(2) .................................... 607
(b) .................................... 608
Section 312(c) .................................... 701
Section 314(a) .................................... 703
(a)(4) .................................... 1008(a)
(c)(1) .................................... 102
(c)(2) .................................... 102
(e) .................................... 102
Section 315(b) .................................... 601
Section 316(a)(last
sentence) .................................... 101 ("Outstanding")
(a)(1)(A) .................................... 502, 512
(a)(1)(B) .................................... 513
(b) .................................... 508
(c) .................................... 105(d)
Section 317(a)(1) .................................... 503
(a)(2) .................................... 504
(b) .................................... 1003
Section 318(a) .................................... 111
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TABLE OF CONTENTS
Page
PARTIES..................................................................... 1
RECITALS OF THE COMPANY..................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................................... 2
Acquired Debt......................................................... 2
Act................................................................... 2
Additional Securities................................................. 2
Affiliate............................................................. 2
Asset Sale............................................................ 3
Asset Sale Offer...................................................... 3
Asset Sale Purchase Date.............................................. 3
Authenticating Agent.................................................. 3
Board of Directors.................................................... 3
Board Resolution...................................................... 3
Business Day.......................................................... 3
Capital Stock......................................................... 3
Capital Lease Obligation.............................................. 4
cash equivalents...................................................... 4
Change of Control..................................................... 4
Change of Control Offer............................................... 4
Change of Control Purchase Date....................................... 4
Closing Date.......................................................... 5
Commission............................................................ 5
Company............................................................... 5
Company Request" or "Company Order.................................... 5
Consolidated Adjusted Net Income...................................... 5
Consolidated EBITDA................................................... 6
Consolidated Fixed Charges............................................ 6
Consolidated Leverage Ratio........................................... 6
Consolidated Net Worth................................................ 6
Corporate Trust Office................................................ 7
Debt.................................................................. 7
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Default............................................................... 7
Defaulted Interest.................................................... 7
Depositary............................................................ 7
Disinterested Director................................................ 8
Disqualified Stock.................................................... 8
Equity Offering....................................................... 8
Escrow Account........................................................ 8
Event of Default...................................................... 8
Exchange Act.......................................................... 8
Exchange Offer........................................................ 8
Exchange Offer Registration Statement................................. 9
Exchange Securities................................................... 9
Fair market value..................................................... 9
Federal Bankruptcy Code............................................... 9
Generally Accepted Accounting Principles" or "GAAP.................... 9
Global Security....................................................... 9
guarantee............................................................. 9
Hedging Obligations................................................... 9
Holder................................................................ 9
Indenture............................................................. 10
Indenture Obligations................................................. 10
Initial Securities.................................................... 10
Interest Payment Date................................................. 10
Investment............................................................ 10
Lien.................................................................. 10
Maturity.............................................................. 10
Mesirow............................................................... 10
Moody's............................................................... 11
Net Cash Proceeds..................................................... 11
Non-U.S. Person....................................................... 11
Offering.............................................................. 11
Officers' Certificate................................................. 11
Offshore Global Security.............................................. 11
Offshore Physical Security............................................ 11
Opinion of Counsel.................................................... 11
Outstanding........................................................... 11
Pari Passu Debt....................................................... 12
Paying Agent.......................................................... 12
Permitted Investment.................................................. 13
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Person................................................................ 13
Pledge Agreement...................................................... 14
Pledged Securities.................................................... 14
Predecessor Security.................................................. 14
Preferred Stock....................................................... 14
QIB................................................................... 14
Qualified Equity Interest............................................. 14
Qualified Stock....................................................... 14
Redemption Date....................................................... 14
Redemption Price...................................................... 14
Registrar............................................................. 14
Registration Rights Agreement......................................... 14
Registration Statement................................................ 15
Regular Record Date................................................... 15
Regulation S.......................................................... 15
Restricted Payments................................................... 15
Restricted Subsidiary................................................. 15
Rule 144A............................................................. 15
S&P................................................................... 15
Securities............................................................ 15
Securities Act........................................................ 15
Security Register..................................................... 15
Shelf Registration Statement.......................................... 15
Significant Subsidiary................................................ 15
Special Record Date................................................... 16
Stated Maturity....................................................... 16
Subordinated Debt..................................................... 16
Subsidiary............................................................ 16
Subsidiary Guarantee.................................................. 16
Subsidiary Guarantor.................................................. 16
Tax Sharing Agreement................................................. 16
Tri-State Securities Intermediary..................................... 16
Trust Indenture Act" or "TIA.......................................... 16
Trustee............................................................... 16
Unrestricted Subsidiary............................................... 17
U.S. Global Security.................................................. 17
U.S. Government Obligations........................................... 17
U.S. Physical Security................................................ 17
Voting Stock.......................................................... 17
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Weighted Average Life................................................. 17
Wholly Owned Restricted Subsidiary.................................... 17
SECTION 102. Compliance Certificates and Opinions.................... 17
SECTION 103. Form of Documents Delivered to Trustee.................. 18
SECTION 104. Acts of Holders......................................... 19
SECTION 105. Notices, Etc., to Trustee, Company...................... 20
SECTION 106. Notice to Holders; Waiver............................... 20
SECTION 107. Conflict of Any Provision of Indenture with Trust
Indenture Act........................................... 21
SECTION 108. Effect of Headings and Table of Contents................ 21
SECTION 109. Successors and Assigns.................................. 21
SECTION 110. Separability Clause..................................... 21
SECTION 111. Benefits of Indenture................................... 22
SECTION 112. Governing Law........................................... 22
SECTION 113. Legal Holidays.......................................... 22
SECTION 114. Consent to Jurisdiction and Service of Process.......... 22
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally......................................... 23
SECTION 202. Restrictive Legends..................................... 24
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms......................................... 26
SECTION 302. Denominations........................................... 27
SECTION 303. Execution, Authentication, Delivery and Dating.......... 27
SECTION 304. Temporary Securities.................................... 29
SECTION 305. Registration, Registration of Transfer and Exchange..... 30
SECTION 306. Book-Entry Provisions for Global Securities............. 31
SECTION 307. Special Transfer Provisions............................. 33
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities........ 35
SECTION 309. Payment of Interest; Interest Rights Preserved.......... 36
SECTION 310. Persons Deemed Owners................................... 38
SECTION 311. Cancellation............................................ 38
SECTION 312. Issuance of Additional Securities....................... 39
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SECTION 313. CUSIP and CINS Numbers.................................. 39
SECTION 314. Computation of Interest................................. 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................. 39
SECTION 402. Application of Trust Money.............................. 40
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default....................................... 41
SECTION 502. Acceleration of Maturity; Rescission and Annulment...... 42
SECTION 503. Collection of Debt and Suits for Enforcement by Trustee. 44
SECTION 504. Trustee May File Proofs of Claim........................ 45
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.............................................. 45
SECTION 506. Application of Money Collected.......................... 46
SECTION 507. Limitation on Suits..................................... 46
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 47
SECTION 509. Restoration of Rights and Remedies...................... 47
SECTION 510. Rights and Remedies Cumulative.......................... 47
SECTION 511. Delay or Omission Not Waiver............................ 48
SECTION 512. Control by Holders...................................... 48
SECTION 513. Waiver of Past Defaults................................. 48
SECTION 514. Waiver of Stay or Extension Laws........................ 49
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults...................................... 50
SECTION 602. Certain Rights of Trustee............................... 50
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.............................................. 51
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SECTION 604. May Hold Securities..................................... 52
SECTION 605. Money Held in Trust..................................... 52
SECTION 606. Compensation and Reimbursement.......................... 52
SECTION 607. Corporate Trustee Required; Eligibility................. 53
SECTION 608. Resignation and Removal; Appointment of Successor....... 53
SECTION 609. Acceptance of Appointment by Successor.................. 55
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business................................................ 55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders............ 56
SECTION 702. Reports by Trustee...................................... 56
SECTION 703. Reports by Company...................................... 56
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.... 57
SECTION 802. Successor Substituted................................... 59
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SUBSIDIARY GUARANTEES
SECTION 901. Without Consent of Holders.............................. 59
SECTION 902. With Consent of Holders................................. 60
SECTION 903. Execution of Supplemental Indentures.................... 61
SECTION 904. Effect of Supplemental Indentures....................... 62
SECTION 905. Conformity with Trust Indenture Act..................... 62
SECTION 906. Reference in Securities to Supplemental Indentures...... 62
SECTION 907. Notice of Supplemental Indentures....................... 62
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.... 63
SECTION 1002. Maintenance of Office or Agency........................ 63
SECTION 1003. Money for Security Payments to Be Held in Trust........ 63
SECTION 1004. Corporate Existence.................................... 65
SECTION 1005. Payment of Taxes and Other Claims...................... 65
SECTION 1006. Maintenance of Properties.............................. 65
SECTION 1007. Insurance.............................................. 66
SECTION 1008. Statement by Officers as to Default.................... 66
SECTION 1009. Provision of Reports and Financial Statements.......... 67
SECTION 1010. Limitation on Debt..................................... 67
SECTION 1011. Limitation on Restricted Payments...................... 69
SECTION 1012. Purchase of Securities upon a Change of Control........ 74
SECTION 1013. Limitation on Certain Asset Sales...................... 75
SECTION 1014. Limitation on Transactions with Affiliates............. 77
SECTION 1015. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries...................... 77
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries................................ 78
SECTION 1017. Limitation on Liens.................................... 79
SECTION 1018. Unrestricted Subsidiaries.............................. 81
SECTION 1019. Limitation on Guarantees of Debt by Restricted
Subsidiaries........................................... 81
SECTION 1020. Waiver of Certain Covenants............................ 82
SECTION 1021. Payment for Consent.................................... 82
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.................................... 83
SECTION 1102. Applicability of Article............................... 83
SECTION 1103. Election to Redeem; Notice to Trustee.................. 83
SECTION 1104. Selection by Trustee of Securities to Be Redeemed...... 83
SECTION 1105. Notice of Redemption................................... 84
SECTION 1106. Deposit of Redemption Price............................ 85
SECTION 1107. Securities Payable on Redemption Date.................. 85
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SECTION 1108. Securities Redeemed in Part............................ 86
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEES
SECTION 1301. Subsidiary Guarantees.................................. 90
SECTION 1302. Guaranty Absolute...................................... 91
SECTION 1303. Waivers................................................ 93
SECTION 1304. Subrogation............................................ 94
SECTION 1305. No Waiver; Remedies.................................... 94
SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent
Obligation............................................. 94
SECTION 1307. Subsidiary Guarantors May Consolidate, Etc., on Certain
Terms.................................................. 95
SECTION 1308. Additional Subsidiary Guarantors....................... 95
SECTION 1309. Releases............................................... 96
SECTION 1310. Benefits Acknowledged.................................. 96
SECTION 1311. Severability........................................... 97
ARTICLE FOURTEEN
SECURITY
SECTION 1401. Security............................................... 97
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EXHIBITS
Exhibit A - Form of Security
Exhibit B - Form of Certificate to Be Delivered upon Termination of Restricted
Period
Exhibit C - Form of Certificate to Be Delivered in Connection with Transfers to
Non-QIB Institutional Accredited Investors
Exhibit D - Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S
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INDENTURE, dated as of May 15, 1998 between Tri-State Outdoor Media
Group, Inc., a corporation duly organized and existing under the laws of the
State of Kansas (herein called the "Company"), and IBJ Xxxxxxxx Bank & Trust
Company, a banking corporation duly organized and existing under the laws of New
York, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation and issue of 11% Senior
Notes due 2008 (herein called the "Initial Securities"), and 11% Senior Series B
Notes due 2008 (the "Exchange Securities" and, together with the Initial
Securities, the "Securities") of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture.
Upon the issuance of the Exchange Securities, if any, or the
effectiveness of the Exchange Offer Registration Statement (as defined herein)
or, under certain circumstances, the effectiveness of the Shelf Registration
Statement (as defined herein), this Indenture shall be subject to the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company, each in accordance with their
respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Two, Eight, Ten and
Twelve are defined in that Article.
"Acquired Debt" means Debt of a Person (a) existing at the time such
Person is merged with or into the Company or becomes a Restricted Subsidiary or
(b) assumed in connection with the acquisition of assets from such Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Securities" has the meaning set forth in Section 312.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly
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or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease
or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer") by
the Company or a Restricted Subsidiary, directly or indirectly, in one or a
series of related transactions, of (a) any Capital Stock of any Restricted
Subsidiary, (b) all or substantially all of the properties and assets of the
Company and its Restricted Subsidiaries representing a division or line of
business or (c) any other properties or assets of the Company or any Restricted
Subsidiary, other than in the ordinary course of business. For the purposes of
this definition, the term "Asset Sale" shall not include any transfer of
properties or assets (i) governed by the provisions of Article Eight of this
Indenture, (ii) between or among the Company and its Restricted Subsidiaries
pursuant to transactions that shall not violate any other provision of this
Indenture, (iii) constituting a Restricted Payment that is permitted to be made,
and is made, under the first paragraph (a) under Section 1011, (iv) that is
permitted to be made, and is made, pursuant to the definition of "Permitted
Investments", (v) representing obsolete or permanently retired equipment and
facilities or (vi) the gross proceeds of which (exclusive of indemnities) shall
not exceed $100,000 for any particular item or $500,000 in the aggregate for any
fiscal year.
"Asset Sale Offer" has the meaning set forth in Section 1013.
"Asset Sale Purchase Date" has the meaning set forth in Section
1013.
"Authenticating Agent" has the meaning set forth in Section 303.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
partnership interests, participations, rights in or other equivalents of, or
interest in, the equity of such Person, but excluding any debt securities
convertible into such equity.
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"Capital Lease Obligation" means, at any time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"cash equivalents" means (i) any evidence of Debt with a maturity of
180 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (ii) certificates of deposit or acceptances with a maturity of 180
days or less of any financial institution that is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not
less than $500,000,000; and (iii) commercial paper with a maturity of 180 days
or less issued by a corporation that is not an Affiliate of the Company and is
organized under the laws of any state of the United States or the District of
Columbia and rated at least A-1 by S&P or at least P-1 by Xxxxx'x.
"Change of Control" means the occurrence of any of the following
events:
(a) Any Person or "group" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than (i) Xxxxxxx X. Xxxxx or Xxxxx
Enterprises, L.P., Xxxxxxx X. XxXxxxxx, X. Xxxxx Xxxx, Xxxxxxx Xx Xxxxx or
any trust existing solely for the benefit of any of the above individuals
and the estate or any executor, administrator, conservator or other legal
representative of any of the above individuals and (ii) Mesirow or its
affiliated entities, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall
be deemed to have "beneficial ownership" of all securities that 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 a majority of the voting power of all classes of Voting Stock of
the Company.
(b) During any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election to such Board of
Directors, or whose nomination for election by the stockholders of the
Company, was approved by a vote of 66 2/3% of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of the
Company then in office.
(c) The Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution, other than a transaction that complies with
the provisions under Article Eight.
"Change of Control Offer" has the meaning set forth in Section 1012.
"Change of Control Purchase Date" has the meaning set forth in
Section 1012.
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"Closing Date" means the date on which the Initial Securities are
originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, Chief Executive
Officer, President, any Vice President, Chief Financial Officer, Treasurer or an
Assistant Treasurer, and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the net
income (or net loss) of the Company and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding (a)
any net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto), (b) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to Asset Sales, (c) the portion of net
income (but not the net loss) of any Person (other than the Company or a
Restricted Subsidiary), including Unrestricted Subsidiaries, in which the
Company or any Restricted Subsidiary has an equity interest, except to the
extent of the amount of dividends or other distributions actually paid to the
Company or any Restricted Subsidiary in cash during such period by such Person,
(d) the net income (or loss) of any Person acquired by the Company or any
Restricted Subsidiary in a "pooling of interests" transaction attributable to
any period prior to the date of such acquisition and (e) the net income (but not
the net loss) of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary is
at the date of determination restricted, directly or indirectly, except to the
extent that such net income could be paid to the Company or a Restricted
Subsidiary thereof by loans, advances, intercompany transfers, principal
repayments or otherwise; provided that, if any Restricted Subsidiary is not a
Wholly Owned Restricted Subsidiary, Consolidated Adjusted Net Income shall be
reduced (to the extent not otherwise reduced in accordance with GAAP) by an
amount equal to (A) the amount of the Consolidated Adjusted Net Income otherwise
attributable to such Restricted Subsidiary multiplied by (B) the quotient of (1)
the number of shares of outstanding common stock of such Restricted Subsidiary
not owned on the last day of such period by the Company or any of its Restricted
Subsidiaries divided by (2) the total number of shares of outstanding stock of
such Restricted Subsidiary on the last day of such period.
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"Consolidated EBITDA" means, for any period, the sum of, without
duplication, Consolidated Adjusted Net Income for such period, plus (or, in the
case of clause (d) below, plus or minus) the following items to the extent
included in computing Consolidated Adjusted Net Income for such period (a)
Consolidated Fixed Charges for such period, plus (b) the federal, state, local
and foreign income tax expense of the Company and its Restricted Subsidiaries
for such period, plus (c) the aggregate depreciation and amortization expense of
the Company and its Restricted Subsidiaries for such period, plus (d) any other
non-cash charges for such period, and minus non-cash credits for such period,
other than non-cash charges or credits resulting from changes in prepaid assets
or accrued liabilities in the ordinary course of business; provided that income
tax expense, depreciation and amortization expense and non-cash charges and
credits of a Restricted Subsidiary shall be included in Consolidated EBITDA only
to the extent (and in the same proportion) that the net income of such
Restricted Subsidiary was included in calculating Consolidated Adjusted Net
Income for such period.
"Consolidated Fixed Charges" means, for any period, without
duplication, the sum of (a) the amount that, in conformity with GAAP, would be
set forth opposite the caption "interest expense" (or any like caption) on a
consolidated statement of operations of the Company and its Restricted
Subsidiaries for such period, including, without limitation, (i) amortization of
debt discount, (ii) the net cost of interest rate contracts (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) amortization of debt issuance costs and (v) the interest
component of Capitalized Lease Obligations, plus (b) cash dividends paid on
Preferred Stock and Disqualified Stock by the Company and any Restricted
Subsidiary (to any Person other than the Company and its Restricted Subsidiary),
plus (c) all interest on any Debt of any Person guaranteed by the Company or any
of its Restricted Subsidiaries; provided, however, that Consolidated Fixed
Charges shall not include (i) any gain or loss from extinguishment of debt,
including the write-off of debt issuance costs and (ii) the fixed charges of a
Restricted Subsidiary to the extent (and in the same proportion) that the net
income of such Subsidiary was excluded in calculating Consolidated Adjusted Net
Income pursuant to clause (e) of the definition thereof for such period.
"Consolidated Leverage Ratio" means, on any date of determination,
the ratio of (i) the aggregate amount of Debt of the Company and its Restricted
Subsidiaries on a consolidated basis as on such date of determination to (ii)
the aggregate amount of Consolidated EBITDA for the immediately preceding four
full fiscal quarters for which internal financial statements are available.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity of the Company and its Restricted Subsidiaries as set forth
on the most recently available quarterly or annual consolidated balance sheet of
the Company and its Restricted Subsidiaries, less any amounts attributable to
Disqualified Stock or any equity security convertible into or exchangeable for
Debt, the cost of treasury stock and the principal amount of any promissory
notes receivable from the sale of the Capital Stock of the Company or any of its
Restricted
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Subsidiaries and less, to the extent included in calculating such stockholders'
equity of the Company and its Restricted Subsidiaries, the stockholders' equity
attributable to Unrestricted Subsidiaries, each item to be determined in
conformity with GAAP (excluding the effects of foreign currency adjustments
under Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52).
"Corporate Trust Office" means the principal corporate trust office
of the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at Xxx Xxxxx Xxxxxx, Xxx Xxxx, X.X. 10004, except that with respect
to presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate trust and agency business shall be conducted.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (a) every obligation of such Person for money borrowed, (b)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services, (e) the amount
of every Capitalized Lease Obligation of such Person, (f) all Disqualified Stock
of such Person valued at its maximum fixed repurchase price, plus accrued and
unpaid dividends, (g) all obligations of such Person under or in respect of
Hedging Obligations if and to the extent such Hedging Obligations would appear
as liability upon a balance sheet of such Person in accordance with GAAP and (h)
every obligation of the type referred to in clauses (a) through (g) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has guaranteed. For purposes of this definition, the "maximum fixed
repurchase price" of any Disqualified Stock that 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 repurchased on any date on
which Debt is 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 shall be determined in good faith by the board of
directors of the issuer of such Disqualified Stock. Notwithstanding the
foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business and any liability for federal, state or local taxes
or other taxes owed by such Person shall not be considered Debt for purposes of
this definition.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees and
successors.
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"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under this Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions (other than as a holder of Voting Stock of the Company).
"Disqualified Stock" means any class or series of Capital Stock
that, either by its terms, or by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (a) is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to one year after the final Stated Maturity of the Securities, (b) is redeemable
at the option of the holder thereof at any time prior to one year after such
final Stated Maturity or (c) at the option of the holder thereof, is convertible
into or exchangeable for debt securities at any time prior to one year after
such final Stated Maturity; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions therein giving holders thereof
the right to cause the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior to
the Stated Maturity of the Securities shall not constitute Disqualified Stock if
the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Sections 1012 and 1013 and such Capital Stock
specifically provides that the issuer shall not repurchase or redeem any of such
stock pursuant to such provision prior to the Company's repurchase of such of
the Securities as are required to be repurchased pursuant to Sections 1012 and
1013.
"Equity Offering" means an offer and sale by the Company of its
common stock (which is Qualified Stock) to one or more Persons other than a
Subsidiary.
"Escrow Account" means the account established by the Trustee with
the Tri-State Securities Intermediary in the name of IBJ Xxxxxxxx Bank & Trust
Company, as Trustee, for its benefit and the benefit of the Holders of the
Securities pursuant to the terms of the Pledge Agreement for the deposit of the
Pledged Securities purchased by the Company with a portion of the net proceeds
from the offering of the initial offer and sale by the Company of the Initial
Securities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder.
"Exchange Offer" means the exchange offer that may be effected
pursuant to the Registration Rights Agreement.
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"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of
this Indenture and refers to any Exchange Securities containing terms
substantially identical to the Initial Securities (except that such Exchange
Securities shall not contain terms with respect to the interest rate step-up
provisions in Section 309 and the transfer restrictions in Section 307) that are
issued and exchanged for the Initial Securities or any Additional Securities
pursuant to the Registration Rights Agreement and this Indenture.
"Fair market value" means, with respect to any asset, the price
which could be negotiated in an arm's-length free market transaction, for cash,
between an informed and willing seller and an informed and willing buyer,
neither of which is under pressure or compulsion to complete the transaction.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of
the United States Code, as amended from time to time.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, as applied from time to
time by the Company in the preparation of its consolidated financial statements.
"Global Security" has the meaning set forth in Section 201.
"guarantee" means, as applied to any obligation, (a) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of all or any
part of such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Hedging Obligations" means the obligations of any Person under (i)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (ii) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or the value of foreign
currencies.
"Holder" means the Person in whose name a Security is, at the time
of determination, registered on the Security Register.
"Holdings" means SGH Holdings, Inc., the parent of the Company.
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"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company and any
other obligor hereunder or under the Securities to pay principal of (and
premium, if any) and interest on the Securities when due and payable at
Maturity, and all other amounts due or to become due under or in connection with
this Indenture, the Securities and the performance of all other obligations to
the Trustee (including all amounts due to the Trustee under Section 606 hereof)
and the Holders under this Indenture and the Securities, according to the terms
hereof and thereof.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"Investment" in any Person means, (a) directly or indirectly, any
advance, loan or other extension of credit (including, without limitation, by
way of guarantee or similar arrangement) or capital contribution to any Person,
the purchase or other acquisition of any stock, bonds, notes, debentures or
other securities issued by such Person, the acquisition (by purchase or
otherwise) of all or substantially all of the business or assets of such Person,
or the making of any investment in such Person, (b) the designation of any
Restricted Subsidiary as an Unrestricted Subsidiary, (c) the transfer of any
assets or properties from the Company or a Restricted Subsidiary to an
Unrestricted Subsidiary, other than the transfer of assets or properties made in
the ordinary course of business and (d) the fair market value of the Capital
Stock (or any other Investment), held by the Company or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary, including, without limitation, by reason of any transaction
permitted by clause (d) of Section 1016. "Investments" exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement, capital lease or other lease in the nature thereof).
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption or otherwise.
"Mesirow" means Mesirow Capital Partners VI and Mesirow Capital
Partners VII.
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"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations as and when received in the form of, or
stock or other assets when disposed of for, cash or cash equivalents (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary), net of (a) brokerage commissions and
other fees and expenses (including fees and expenses of legal counsel,
accountants and investment banks) related to such Asset Sale, (b) provisions for
all taxes payable as a result of such Asset Sale, (c) payments made to retire
Debt where payment of such Debt is secured by a Lien on the assets that are the
subject of such Asset Sale, (d) amounts required to be paid to any Person (other
than the Company or any Restricted Subsidiary) owning a beneficial interest in
the assets that are subject to the Asset Sale and (e) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the case may be, as a
reserve required in accordance with GAAP against any liabilities associated with
such Asset Sale and retained by the seller after such Asset Sale, including
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S.
"Offering" means the offering of 11% Senior Notes due 2008 by the
Company.
"Officers' Certificate" means a certificate signed by the Chairman,
Chief Executive Officer, the President, the Chief Financial Officer or any Vice
President, and by an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Offshore Global Security" has the meaning set forth in Section 201.
"Offshore Physical Security" has the meaning set forth in Section
201.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably satisfactory to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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(b) Securities, or portions thereof, for whose payment, redemption
or purchase money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Twelve; and
(d) Securities which have been paid pursuant to Section 308 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Pari Passu Debt" means any Debt of the Company or any Subsidiary
Guarantor, whether outstanding on the Closing Date or incurred thereafter, that
ranks pari passu in right of payment with the Securities or any Subsidiary
Guarantee, as the case may be.
"Paying Agent" means IBJ Xxxxxxxx Bank & Trust Company and any
successor (including the Company acting as Paying Agent) authorized by the
Company to pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
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"Permitted Investment" means any of the following:
(a) Investments in (i) securities with a maturity of 180 days or
less issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof); (ii)
certificates of deposit or acceptances with a maturity of 180 days or less
of any financial institution that is a member of the Federal Reserve
System having combined capital and surplus of not less than $500,000,000;
and (iii) commercial paper with a maturity of 180 days or less issued by a
corporation that is not an Affiliate of the Company and is organized under
the laws of any state of the United States or the District of Columbia and
having the highest rating obtainable from Moody's or S&P.
(b) Investments by the Company in another Person, if as a result of
such Investment such other Person (i) becomes a Subsidiary Guarantor or
(ii) is merged or consolidated with or into, or transfers or conveys all
or substantially all of its assets to, the Company or a Subsidiary
Guarantor.
(c) Investments by the Company or any of the Subsidiary Guarantors
in any one of the other of them.
(d) Investments in existence on the Closing Date.
(e) Promissory notes received as a result of Asset Sales permitted
under Section 1013.
(f) Direct or indirect loans to officers, directors or employees, or
to a trustee for the benefit of such employees, of the Company or any
Restricted Subsidiary in an aggregate amount outstanding at any time not
exceeding $250,000, plus the amount of direct or indirect loans to
employees for relocation assistance.
(g) Investments in assets owned or used in the ordinary course of
business.
(h) Investments in any Person in the form of a capital contribution
of the Company's common stock.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"Pledge Agreement" means the Pledge Agreement dated as of the date
hereof, by and between the Trustee, the Tri-State Securities Intermediary and
the Company, governing the disbursement of funds from the Escrow Account.
"Pledged Securities" means the securities purchased by the Company
with a portion of the net proceeds from the initial offer and sale by the
Company of the Initial Securities, which shall consist of U.S. Government
Securities, to be deposited in the Escrow Account.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 308 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the Closing Date, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Qualified Equity Interest" means any Qualified Stock and all
warrants, options or other rights to acquire Qualified Stock but excluding any
debt security that is convertible into or exchangeable for Capital Stock.
"Qualified Stock" of any Person means any and all Capital Stock of
such Person, other than Disqualified Stock.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" means IBJ Xxxxxxxx Bank & Trust Company and any
successor authorized by the Company to act as Registrar.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company and the Initial Purchasers named therein, dated as
of May 15, 1998, relating to the Securities.
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"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 1 or November 1(whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Payments" has the meaning set forth in Section 1011.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, and its successors.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Securities"
shall include the Initial Securities and any Exchange Securities to be issued
and exchanged for any Initial Securities in accordance with the Exchange Offer
as provided for in the Registration Rights Agreement and this Indenture. From
and after the issuance of any Additional Securities pursuant to Section 312
(but, not for purposes of determining whether such issuance is permitted
hereunder), "Securities" shall include such Additional Securities for purposes
of this Indenture, and all Initial Securities, Exchange Securities and
Additional Securities shall vote together as one series of Securities under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations thereunder.
"Security Register" has the meaning set forth in Section 305.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of the
Company that together with its Subsidiaries, (a) for the most recent fiscal year
of the Company, accounted for more than 10% of the consolidated net sales of the
Company and its Restricted Subsidiaries or (b) as of the end of such fiscal
year, was the owner of more than 10% of the consolidated assets of the Company
and its Restricted Subsidiaries, in the case of either (a) or (b), as set forth
on the
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most recently available consolidated financial statements of the Company for
such fiscal year or (c) was organized or acquired after the beginning of such
fiscal year and would have been a Significant Subsidiary if it had been owned
during the entire fiscal year.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Security or
any installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable and, when used with respect to any other Debt, means
the date specified in the instrument governing such Debt as the fixed date on
which the principal of such Debt or any installment of interest thereon is due
and payable.
"Subordinated Debt" means Debt of the Company that is subordinated
in right of payment to the Securities.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more Subsidiaries of the Company.
"Subsidiary Guarantee" means the guarantee of the Company's
obligations under the Securities and this Indenture by a Restricted Subsidiary
as set forth in Article 13 hereof.
"Subsidiary Guarantor" means any Restricted Subsidiary that issues
or has issued a Subsidiary Guarantee pursuant to or as required by the
provisions of this Indenture.
"Tax Sharing Agreement" means the Tax Sharing Agreement dated as of
May 20, 1998 between the Company and Holdings, as in effect on the Closing Date.
"Tri-State Securities Intermediary" means IBJ Xxxxxxxx Bank & Trust
Company in its capacity as securities intermediary under the Pledge Agreement.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
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"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary in accordance
with Section 1018 and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Global Security" has the meaning set forth in Section 201.
"U.S. Government Obligations" has the meaning set forth in Section
1204.
"U.S. Physical Security" has the meaning set forth in Section 201.
"Voting Stock" means any class or classes of Capital Stock pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Weighted Average Life" means, as of the date of determination with
respect to any Debt or Disqualified Stock, the quotient obtained by dividing (a)
the sum of the products of (i) the number of years from the date of
determination to the date or dates of each successive scheduled principal or
liquidation value payment of such Debt or Disqualified Stock, respectively,
multiplied by (ii) the amount of each such principal or liquidation value
payment, by (b) the sum of all such principal or liquidation value payments.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or shares of foreign Restricted Subsidiaries required to be
owned by foreign nationals pursuant to applicable law) of which are owned,
directly or indirectly, by the Company.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
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(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company that the information
with respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by
any Person, and the date of holding the same shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders
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on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) For all purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
SECTION 105. Notices, Etc., to Trustee, Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing or mailed, first-class postage prepaid, to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Finance Department, or sent by facsimile to the Trustee at (000) 000-0000
(with receipt confirmed by telephone at (000) 000-0000); or
(b) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at 0000 Xxxxxxx 00 Xxxxx, Xxxxxx,
Xxxxxxx, Attention: President, or sent by facsimile to the Company at
(000) 000-0000 (with receipt confirmed by telephone at (000) 000-0000), or
at any other address or facsimile number previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any
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notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 107. Conflict of Any Provision of Indenture with Trust
Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
any Subsidiary Guarantor shall bind its respective successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, the Tri-State
Securities Intermediary, any Paying Agent, any Securities Registrar and their
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Upon the issuance of the
Exchange Securities, if any, or the effectiveness of the Exchange Offer
Registration Statement (as defined herein) or, under certain circumstances, the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture shall be subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change of Control Purchase Date or Asset Sale Purchase
Date with respect to any Security or other date on which principal, premium or
interest in respect or the Securities is due, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of principal (or premium, if any) or interest need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change of Control Purchase Date, Asset Sale Purchase Date
or such other date; provided that no interest shall accrue for the period from
and after such Interest Payment Date or other such day, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change in Control Purchase Date, Asset Sale Purchase Date
or such other date, as the case may be, to the next succeeding Business Day.
SECTION 114. Consent to Jurisdiction and Service of Process.
The Company agrees that any legal suit, action or proceeding
brought by any party to enforce any rights under or with respect to this
Indenture or the Securities may be instituted in any state or federal court in
New York City and waives to the fullest extent permitted by law any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding and irrevocably submits to the non-exclusive jurisdiction
of any such court in any such suit, action or proceeding. The Company hereby
irrevocably
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designates and appoints CT Corporation System as the Company's authorized agent
to receive and forward on its behalf service of any and all process which may be
served in any such suit, action or proceeding in any such court and agrees that
service of process upon CT Corporation System at its office at 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, (or such other address in the State of New York as the
Company may designate by written notice to the Trustee) and written notice of
such service to the Company marked or delivered to CT Corporation System at its
address set forth herein shall be deemed in every respect effective service of
process upon the Company in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Company. Nothing in this
Section 114 shall affect the right of any party hereto to serve process in any
manner permitted by law or limit the right of any party hereto to bring
proceedings against the Company in the courts of any jurisdiction or
jurisdictions. The Company further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of CT Corporation System
in full force and effect so long as this Indenture or any of the Securities
shall be outstanding. To the extent that the Company has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, executor or otherwise) with respect to itself or its property,
the Company hereby irrevocably waives such immunity in respect of its
obligations under this Indenture and the Securities, to the extent permitted by
law.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall
be in substantially the form annexed hereto as Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
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The terms and provisions contained in the form of the Securities
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Securities in registered
form substantially in the form set forth in Exhibit A (the "U.S. Global
Security"), registered in the name of the nominee of the Depositary, deposited
with the Trustee, as custodian for the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the U.S. Global Security may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Securities in registered form substantially in the form set forth in
Exhibit A (the "Offshore Global Security"), registered in the name of the
nominee of the Depositary, deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Offshore Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Securities offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Securities
in registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Securities"). Securities offered and sold pursuant to Section 306 in
exchange for interests in the Offshore Global Security shall be in the form of
permanent certificated Securities in registered form substantially in the form
set forth in Exhibit A (the "Offshore Physical Securities").
The Offshore Physical Securities and the U.S. Physical Securities
are sometimes collectively herein referred to as the "Physical Securities." The
U.S. Global Security and the Offshore Global Security are sometimes referred to
herein as the "Global Securities."
SECTION 202. Restrictive Legends.
Unless and until an Initial Security is sold under an effective
Shelf Registration Statement or an Initial Security is exchanged for an Exchange
Security in connection with an effective Exchange Offer Registration Statement,
in each case pursuant to the Registration Rights Agreement, (i) the U.S. Global
Security and the U.S. Physical Securities shall bear the legend, set forth below
on the face thereof (the "Private Placement Legend") and (ii) the Offshore
Global Security and the Offshore Physical Security shall bear the Private
Placement Legend until at least
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the 41st day after the Closing Date and receipt by the Company and the Trustee
of a certificate substantially in the form of Exhibit B hereto:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH TRI-STATE OUTDOOR MEDIA GROUP, INC. (THE "COMPANY") OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE")
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) ABOVE PRIOR TO THE END OF THE 40-DAY RESTRICTED PERIOD WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE
(E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION (IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY) OF COUNSEL SATISFACTORY TO THE COMPANY, AND
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(II) IN
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EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Each U.S. Global Security, whether or not an Initial Security, shall
also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The Initial Securities shall be known and designated as the "11%
Senior Notes due 2008" and the Exchange Securities shall be known and designated
as the "11% Series B Senior Notes due 2008." Their Stated Maturity shall be May
15, 2008, and they shall bear interest at the rate of 11% per annum from May 20,
1998, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, payable semiannually on May
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15 and November 15 in each year, commencing November 15, 1998, until the
principal thereof is paid or duly provided for, to the Person in whose name the
Security (or any predecessor Security) is registered at the close of business on
the May 1 or November 1 next preceding such Interest Payment Date.
The principal of (and premium, if any), and interest on the
Securities shall be payable, and the Securities shall be exchangeable and
transferable, at the office or agency of the Company in The City of New York
maintained for such purposes, (which initially shall be the office of the
Trustee located at Xxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000) or, at the option of
the Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register; provided
that all payments with respect to the U.S. Global Securities, as well as
Physical Securities the Holders of which have given wire transfer instructions
to the Trustee (or other Paying Agent) by the Regular Record Date for such
payment, shall be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof.
Securities that remain outstanding after the consummation of the
Exchange Offer and Exchange Securities issued in connection with the Exchange
Offer will be treated as a single class of securities under this Indenture.
The Securities shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Subject to Article Ten hereof, the aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities shall be executed on behalf of the Company by its
Chairman, Chief Executive Officer, President, Chief Financial Officer or any
Vice President. The signature of any of these officers on the Securities may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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On the date hereof, after the execution and delivery of this
Indenture, the Company shall deliver Initial Securities in the aggregate
principal amount of $100,000,000 executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Initial Securities directing the Trustee to authenticate the
Initial Securities and certifying that all conditions precedent to the issuance
of Securities contained herein have been fully complied with, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Initial
Securities. At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Additional Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Additional Securities directing the Trustee
to authenticate the Additional Securities and certifying that the issuance of
such Additional Securities is in compliance with Article Ten hereof and that all
other conditions precedent to the issuance of Securities contained herein have
been fully complied with, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Additional Securities. On Company Order, the
Trustee shall authenticate for original issue Exchange Securities in an
aggregate principal amount not to exceed $100,000,000 plus the aggregate
principal amount of any Additional Securities issued; provided that such
Exchange Securities shall be issuable only upon the valid surrender for
cancellation of Initial Securities and Additional Securities of a like aggregate
principal amount in accordance with an Exchange Offer pursuant to the
Registration Rights Agreement and a Company Order for the authentication and
delivery of such Exchange Securities and certifying that all conditions
precedent to the issuance of such Securities have been complied with (including
the effectiveness of the Registration Statement related thereto). In each case,
the Trustee shall be entitled to receive an Officers' Certificate and an Opinion
of Counsel of the Company that it may reasonably request in connection with such
authentication of Securities. Each Company Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to
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Article Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Securities as specified in such request for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities (an "Authenticating
Agent"). Unless limited by the terms of such appointment, an Authenticating
Agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent. An Authenticating Agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company shall cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as "Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange (including an
exchange of Initial Securities for Exchange Securities), the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive; provided that no exchange
of Initial Securities for Exchange Securities shall occur until an Exchange
Offer Registration Statement shall have been declared effective by the
Commission, the Trustee shall have received an Officer's Certificate confirming
that the Exchange Offer Registration Statement has been declared effective by
the Commission and the Initial Securities to be exchanged for the Exchange
Securities shall be canceled by the Trustee.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any
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tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, 1012, 1013 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the selection of Securities to be redeemed under Section
1104 and ending at the close of business on the day of such mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Notwithstanding anything to the contrary contained herein, the
Trustee shall have no duty whatsoever to monitor compliance with Federal or
State securities laws other than to collect the certificates required herein.
SECTION 306. Book-Entry Provisions for Global Securities.
(a) The U.S. Global Security and the Offshore Global Security
initially shall (i) be registered in the name of the Depositary or the nominee
of the Depositary, (ii) be deposited with, or on behalf of, the Depositary or
with the Trustee, as custodian for such Depositary, and (iii) bear legends as
set forth in Section 202.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or
under the Global Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 307. In addition, U.S. Physical
Securities and Offshore Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Security or the Offshore Global Security, respectively, if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the U.S. Global Securities or the Offshore Global Securities, as the case
may be and a successor depositary is not appointed by the Company within 90 days
of such notice, (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the
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Depositary or (iii) in accordance with the rules and procedures of the
Depositary and the provisions of Section 307.
(c) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security shall, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, shall thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interest in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a U.S. Global Security or Offshore Global Security to beneficial
owners pursuant to subsection (b) of this Section, the Registrar shall reflect
on its books and records the date and a decrease in the principal amount of the
U.S. Global Security or Offshore Global Security in an amount equal to the
principal amount of the beneficial interest in such Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Securities or Offshore Physical
Securities of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global
Security or Offshore Global Security to beneficial owners pursuant to subsection
(b) of this Section, the U.S. Global Security or the Offshore Global Security,
as the case may be, shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Security or Offshore Global
Security, as the case may be, an equal aggregate principal amount of U.S.
Physical Securities or Offshore Physical Securities, as the case may be, of
authorized denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to subsection (b), (d) or (e) of this
Section shall, except as otherwise provided by paragraph (f) of Section 307,
bear the applicable legend regarding transfer restrictions applicable to the
U.S. Physical Security set forth in Section 202.
(g) Any Offshore Physical Security delivered in exchange for an
interest in the Offshore Global Security pursuant to subsection (b), (d) or (e)
of this Section shall, except as otherwise provided by paragraph (e) of Section
307, bear the applicable legend regarding transfer restrictions applicable to
the Offshore Physical Security set forth in Section 202.
(h) The registered Holder of a Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
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SECTION 307. Special Transfer Provisions.
The Trustee is entitled to rely upon the certificates delivered
pursuant to this Section 307 and is irrevocably authorized to produce such
certificates or copies thereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered
thereby.
Unless and until (i) an Initial Security is sold under an effective
Shelf Registration Statement or (ii) an Initial Security is exchanged for an
Exchange Security in connection with an effective Registration Statement, in
each case pursuant to the Exchange Offer Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security to any institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Security,
whether or not such Security bears the Private Placement Legend, if (x)
the requested transfer is after the time period referred to in Rule 144(k)
under the Securities Act as in effect with respect to such transfer or (y)
the proposed transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit C hereto and (B) if the aggregate
principal amount of the Securities being transferred is less than $100,000
at the time of such transfer, an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i), and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
U.S. Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical
Security, an interest in a U.S. Global Security or an interest in an Offshore
Global Security to a QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (x) either (A) an
interest in an Offshore Global Security prior to the removal of the
Private Placement Legend or (B) U.S. Physical Securities, the Registrar
shall register the transfer if such transfer is being
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made by a proposed transferor who has checked the box provided for on the
form of Initial Security stating, or has otherwise advised the Company and
the Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Initial Security for its own account or an account with
respect to which it exercises sole investment discretion and that it, or
the Person on whose behalf it is acting with respect to any such account,
is a QIB within the meaning of Rule 144A, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A or (y) an interest in a U.S. Global Security, the transfer of
such interest may be effected only through the book-entry system
maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Initial
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the U.S. Physical
Securities to be transferred, and the Trustee shall cancel the U.S.
Physical Security so transferred.
(c) Transfers of Interests in the Offshore Global Security or
Offshore Physical Securities. The following provisions shall apply with respect
to any transfer of interests in the Offshore Global Security or Offshore
Physical Securities:
(i) prior to the removal of the Private Placement Legend from an
Offshore Global Security or an Offshore Physical Security pursuant to
Section 2.02, the Registrar shall refuse to register such transfer unless
such transfer complies with Section 307(b) or Section 307(d), as the case
may be; and
(ii) after such removal, the Registrar shall register the transfer
of any such Security without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Security to a
Non-U.S. Person:
(i) The Registrar shall register any proposed transfer of an Initial
Security to a Non-U.S. Person if the Security to be transferred is a U.S.
Physical Security or an interest
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in the U.S. Global Security only upon receipt of a certificate
substantially in the form of Exhibit D hereto from the proposed
transferor.
(ii) (A) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i), and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Offshore Physical Securities in a like principal amount or (B) if the
proposed transferee is an Agent Member, upon receipt by the Registrar of
instructions given in accordance with the Depositary's and the Registrar's
Procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Offshore Global Security in
an amount equal to the principal amount of the U.S. Physical Securities or
the U.S. Global Security, as the case may be, to be transferred and the
Trustee shall cancel the U.S. Physical Security, if any, so transferred or
decrease the amount of the U.S. Global Security.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless either (i) the circumstances contemplated by
paragraph (a)(i)(x), or (c)(ii) of this Section 307 exist and the Company
directs the Trustee pursuant to an Officers' Certificate to remove such legend
or (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain as required by law copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.
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If (i) any mutilated Security is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company in The City of New York maintained for such
purposes (which initially shall be the office of the Trustee located at Xxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000) pursuant to Section 1002 or, at the option of
the Company, interest may be paid by check mailed to the address of the Person
entitled thereto pursuant to 310 as such address appears in the Security
Register; provided that all payments with respect to Global Securities and
Physical Securities the Holders of which have given wire transfer instructions
to the Trustee (or other Paying Agent) by the Regular Record Date shall be
required
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to be made by wire transfer of immediately available funds to the accounts
specified by the holders thereof.
Any interest on the Securities shall be considered punctually paid
or duly provided for if the Paying Agent holds immediately available funds no
later than 11:00 A.M. New York City time on the applicable Interest Payment
Date. Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date, and in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given in the manner provided for in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
If the Company shall be required to pay any additional interest
pursuant to the terms of the Registration Rights Agreement, it shall deliver an
Officers' Certificate to the Trustee setting forth the new interest rate and the
period for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Sections 305 and 309) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and none
of the Company, any Subsidiary Guarantor or the Trustee or any agent of the
Company, any Subsidiary Guarantor or the Trustee shall be affected by notice to
the contrary.
SECTION 311. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that canceled Securities be returned
to it.
SECTION 312. Issuance of Additional Securities.
The Company may, subject to Article Ten of this Indenture, issue
additional Securities having identical terms and conditions to the Securities
offered hereby (the "Additional Securities"). The Initial Securities issued on
the closing date and any Additional Securities
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subsequently issued (and any Exchange Securities issued in exchange therefore)
shall be treated as a single class for all purposes under this Indenture.
SECTION 313. CUSIP and CINS Numbers.
The Company in issuing the Securities may use "CUSIP" and "CINS"
numbers (if then generally in use) and, if so, the Trustee shall use "CUSIP" and
"CINS" numbers 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 Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
SECTION 314. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Securities, as expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(i) all the Securities theretofore authenticated and delivered
(other than mutilated, destroyed, lost or stolen Securities that
have been replaced or paid as provided in Section 308 and Securities
that have been subject to defeasance under Article Twelve) have been
delivered to the Trustee for cancellation; or
(ii) all Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable,
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(B) shall become due and payable at Stated Maturity
within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company or any Subsidiary Guarantor, as the case may be, in
the case of (A), (B) or (C) above, has irrevocably deposited or
caused to be deposited with the Trustee funds in trust for the
purpose in an amount sufficient to pay and discharge the entire Debt
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any, on) and interest
on the Securities to the date of such deposit (in the case of
Securities that have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company or any Subsidiary Guarantor, as the case may be, has
paid or caused to be paid all sums payable hereunder by the Company; and
(c) the Company or any Subsidiary Guarantor, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) Default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of
30 days or more (provided that such 30-day grace period shall not be
applicable to the first two interest payments on the Securities).
(2) Default in the payment of the principal of (or premium, if any,
on) any Security when due (whether at its Stated Maturity, upon
acceleration, optional redemption, required purchase or otherwise).
(3) Failure to perform or comply with Section 801 hereof.
(4) Default in the performance, or breach, of any covenant or
agreement of the Company contained in this Indenture or the Pledge
Agreement (other than a default in the performance, or breach, of a
covenant or agreement that is specifically dealt with elsewhere herein),
and continuance of such default or breach for a period of 60 days after
written notice has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding.
(5) (i) An event of default has occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing an issue of Debt of
the Company or any Restricted Subsidiary, which issue has an aggregate
outstanding principal amount of not less than $1,000,000, and such default
has resulted in such Debt becoming, whether by declaration or otherwise,
due and payable prior to the date on which it would otherwise become due
and payable or (ii) a default in any payment when due at final maturity of
any such Debt.
(6) Failure by the Company or any of its Restricted Subsidiaries to
pay one or more final judgments the uninsured portion of which exceeds in
the aggregate $1,000,000, which judgment or judgments are not paid,
discharged or stayed for a period of 60 days.
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(7) Any Subsidiary Guarantee issued by a Significant Subsidiary
ceases to be in full force and effect or is declared null and void, or any
Subsidiary Guarantor denies that it has any further liability under any
Subsidiary Guarantee, or gives notice to such effect (other than by reason
of the termination of this Indenture or the release of any such Subsidiary
Guarantee in accordance with this Indenture), and such condition has
continued for a period of 30 days after written notice of such failure
requiring the Subsidiary Guarantor and the Company to remedy the same has
been given (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the Holders of 25% in aggregate principal amount of the
Securities then outstanding.
(8) Entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect
of the Company or any Significant Subsidiary under the Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days.
(9) The institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in clauses (8) or
(9) of Section 501) occurs and is continuing, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities then outstanding
may, and the Trustee at the request of such Holders shall, declare the principal
of all of the outstanding Securities immediately due and payable and, upon any
such declaration, such principal shall become due and payable immediately. If an
Event of Default specified in clauses (8) or (9) of Section 501 occurs and is
continuing, then the principal of all of the outstanding Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
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At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Securities, by written notice to the Company and the Trustee,
may rescind such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) all unpaid principal of (and premium, if any, on) any
outstanding Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne
by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the rate
borne by the Securities, and
(D) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(ii) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on the Securities that
have become due solely by such declaration of acceleration, have been
cured or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities because of an Event of
Default specified in Section 501(5) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Debt that is
the subject of such Event of Default has been discharged or the holders thereof
have rescinded their declaration of acceleration in respect of such Debt, and
written notice of such discharge or rescission, as the case may be, shall have
been given to the Trustee by the Company and countersigned by the holders of the
requisite percentage of such Debt or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
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SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.
The Company and each Subsidiary Guarantor covenant that if
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company and each Subsidiary Guarantor shall, upon demand of the Trustee, pay
to the Trustee for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal (and premium, if
any) and interest, and interest on any overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installment of interest, at the rate borne by the Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company or any Subsidiary Guarantor, as the case may be,
fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company, any such
Subsidiary Guarantor or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company, any such Subsidiary Guarantor or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities (including any Subsidiary Guarantor) or the property of the Company
or of such other obligor or their creditors, the
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Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other securities or
property payable or deliverable upon the conversion or exchange of such
securities or upon any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or as a court of
competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities (including fees and
expenses of its agents and counsel) to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article Twelve)
and in such Security of the principal of (and premium, if any) and (subject to
Section 309) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, each Subsidiary Guarantor, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 308, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may, on behalf of the Holders of all of the Securities,
waive any past defaults hereunder, except a default
(a) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Security Outstanding.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this
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Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company and each Subsidiary Guarantor covenant (to the extent
that it may lawfully do so) that it 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 Company
and each Subsidiary Guarantor (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such law and covenants
that it 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.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal (or premium, if any ) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and is
known to the Trustee, the Trustee shall mail to each Holder of the Securities in
the manner and to the extent provided in TIA Section 313(c) notice of the
Default or Event of Default within 90 days after
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the occurrence thereof; provided, however, that, except in the case of a Default
or an Event of Default in the payment of principal of (and premium, if any, on)
or interest on any Securities, the Trustee may withhold the notice to the
Holders of the Securities if a committee of its trust officers in good faith
determines that withholding such notice is in the interests of the Holders of
the Securities.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting, pursuant to the terms of this Indenture
or otherwise, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, xxxx,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper Person or Persons;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order with
sufficient detail as may be requested by the Trustee and any resolution of
the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate or an Opinion of
Counsel;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities (including fees and expenses
of its agents and counsel) which might be incurred by it in compliance
with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into,
and may conclusively rely upon, the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture; and
(i) the Trustee need perform only those duties as are specifically
set forth in this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture, the Pledge Agreement, the Pledged Securities, any Subsidiary
Guarantee or the Securities except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and, upon the effectiveness of the
Registration Statement, that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof
or any money paid to the Company or upon the Company's direction under any
provision of this
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Indenture. The Trustee shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any Registrar or any other agent of
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to TIA Sections 310(b)
and 311, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(a) (i) to pay to the Trustee (in its capacity as Trustee, Paying
Agent and Registrar) from time to time reasonable compensation for all
services rendered by it hereunder and under the Pledge Agreement (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) to pay the Tri-State Securities Intermediary from time to time
reasonable compensation for all services rendered by it under the Pledge
Agreement;
(b) except as otherwise expressly provided herein, to reimburse the
Trustee promptly upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture and the Pledge Agreement (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust and the Pledge Agreement, including the costs
and expenses (including the reasonable expenses and disbursements of
counsel) of enforcing this Indenture and the Pledge Agreement against
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the Company or any Subsidiary Guarantor (including this Section 606) and
of defending itself against any claim (whether asserted by any Holder or
the Company or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder and under
the Pledge Agreement.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and any termination under any bankruptcy law. As
security for the performance of such obligations of the Company, the Trustee
shall have a lien prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(8) or (9), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
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(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
not less than a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, except when the Trustee's duty to resign is stayed in accordance
with the provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment
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in the manner hereinafter provided subject to TIA Section 315(e), any Holder who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder subject to the retiring Trustee's rights
as provided under the last sentence of Section 606. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case at that time any of the Securities shall not have been authenticated, any
successor Trustee
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may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides that the
certificate of authentication of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Securities, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections,
then it shall file with the Trustee and the Commission, in accordance with
rules and regulations
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prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations;
(c) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any
other Person or, directly or indirectly, convey, sell, assign, transfer, lease
or otherwise dispose of its properties and assets substantially as an entirety
to any other Person (in one transaction or a series of related transactions),
unless each of the following conditions is satisfied:
(a) Either (i) the Company is the surviving corporation or (ii) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance,
sale, assignment, transfer, lease or other disposition the properties and
assets of the Company substantially as an entirety
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(the "Surviving Entity") (A) is a corporation, partnership or trust
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia and (B) expressly assumes, by a
supplemental indenture in form satisfactory to the Trustee, all of the
Company's obligations under this Indenture and the Securities.
(b) Immediately after giving effect to such transaction and treating
any obligation of the Company in connection with or as a result of such
transaction as having been incurred as of the time of such transaction, no
Default or Event of Default has occurred and is continuing.
(c) Immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the Company (or of the
Surviving Entity if the Company is not the continuing obligor under this
Indenture) is equal to or greater than the Consolidated Net Worth of the
Company immediately prior to such transaction.
(d) Immediately after giving effect to such transaction on a pro
forma basis (on the assumption that the transaction occurred at the
beginning of the most recently ended four full fiscal quarter period for
which internal financial statements are available), the Company (or the
Surviving Entity if the Company is not the continuing obligor under this
Indenture) could incur at least $1.00 of additional Debt (other than
Permitted Debt) pursuant to the first paragraph of Section 1010).
(e) If the Company is not the continuing obligor under this
Indenture, each Subsidiary Guarantor, unless it is the other party to the
transaction described above, has by supplemental indenture confirmed that
its Subsidiary Guarantee applies to the Surviving Entity's obligations
under this Indenture and the Securities.
(f) If any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1017 are complied with.
(g) The Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries that constitutes all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
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SECTION 802. Successor Substituted.
In the event of any transaction described in and complying with the
conditions listed in Section 801 in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein, and thereafter the Company shall, except in the case of a
lease, be discharged of all its obligations and covenants under this Indenture
and the Securities.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SUBSIDIARY GUARANTEES
SECTION 901. Without Consent of Holders.
Without the consent of any Holders, the Company and any affected
Subsidiary Guarantor, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or
any other obligor on the Securities (including any Subsidiary Guarantor)
and the assumption by any such successor of the covenants of the Company
or such obligor contained in this Indenture, the Pledge Agreement and the
Securities; or
(b) to add to the covenants of the Company or any other obligor on
the Securities (including any Subsidiary Guarantor) for the benefit of the
Holders or to surrender any right or power herein or in the Securities
conferred upon the Company or any other obligor on the Securities; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Securities in addition to or in
place of the certificated Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section
609; or
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(f) to secure the Securities or any Subsidiary Guarantee;
(g) to cure any ambiguity or mistake, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision in this Indenture or the Pledge Agreement, or to make any other
provisions with respect to matters or questions arising under this
Indenture or the Pledge Agreement; provided that such action shall not
adversely affect the interests of the Holders in any material respect; or
(h) to qualify, or maintain the qualification of, this Indenture
under the Trust Indenture Act;
(i) to secure the Securities pursuant to a Subsidiary Guarantee and
add a Subsidiary Guarantor as a party to this Indenture pursuant to
Section 1308;
(j) to make any other change that does not adversely affect the
rights of any Holder.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture or any
amendment to the Pledge Agreement, and upon receipt by the Trustee of the
documents described in Section 602 hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture or any
amendment to the Pledge Agreement, authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture or any such amendment to the Pledge
Agreement that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company, and upon the filing with the Trustee of evidence of
consent of the Holders as aforesaid, the Company, when authorized by a Board
Resolution, each Subsidiary Guarantor and the Trustee may amend or supplement in
any manner this Indenture or modify in any manner the rights of the Holders
under this Indenture; provided, however, that no such supplement, amendment or
modification may, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of
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payment where, or the coin or currency in which any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any waiver of
compliance with certain provisions of, or certain defaults and their
consequences provided for under, this Indenture, or
(c) waive a default in the payment of principal of, or premium, if
any, or interest on the Securities or reduce the percentage or aggregate
principal amount of Outstanding Securities the Consent of whose Holders is
necessary for waiver of compliance with certain provisions of this
Indenture or for waiver of certain defaults, or
(d) modify any of the provisions of this Indenture relating to the
subordination of the Securities or the Subsidiary Guarantees in a manner
materially adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Without the consent of the holders of at least 75% in principal
amount of the Securities then Outstanding (including consents obtained in
connection with a tender offer or exchange offer for such Securities), no waiver
or amendment to the Indenture may make any change in the provisions of Section
1012 after the mailing of an offer with respect to a Change of Control Offer
that adversely affects the rights of any Holder of Securities.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Officer's Certificate and
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company and each
Subsidiary Guarantor subject to the customary exceptions and such other matters
as the Trustee may reasonably request. The Trustee may, but shall not be
obligated to, enter into any such
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supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, each Subsidiary
Guarantor and the Trustee of any supplemental indenture pursuant to the
provisions of Section 902, the Company shall give notice thereof to the Holders
of each Outstanding Security affected, in the manner provided for in Section
106, setting forth in general terms the substance of such supplemental
indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.
The Company covenants and agrees for the benefit of the Holders that
it will duly and punctually pay the principal of (and premium, if any) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office located at Xxx Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000 of the Trustee shall be such office or agency of the Company,
unless the Company shall designate and maintain some other office or agency for
one or more of such purposes. The Company shall give prompt written notice to
the Trustee of any change in the location of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes and may from time
to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (or premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal of (or
premium, if any) or interest so becoming due until such
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sums 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 Company shall have one or more Paying Agents for the
Securities, it shall, on or before each due date of the principal of (or
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company shall promptly notify the Trustee of such action or
any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee)
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (or premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such
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Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its existence
and the existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of the Company and each such Subsidiary and
the rights (whether pursuant to charter, partnership certificate, agreement,
statute or otherwise), material licenses and franchises of the Company and each
such Subsidiary; provided, however, that the Company shall not be required to
preserve any such right, license or franchise or the existence of any Restricted
Subsidiary, if the Board of Directors shall determine that the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company shall cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied
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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 Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
except, in every case, as and to the extent that the Company may be prevented by
fire, strikes, lockouts, acts of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion or unavoidable casualty
or similar causes beyond the control of the Company; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
maintenance of any of such properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company shall at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company to be responsible, against loss or damage to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties.
SECTION 1008. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 60 days after
the end of each fiscal year, an Officer's Certificate signed by either the
principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of compliance by the Company and the
Restricted Subsidiaries with all conditions and covenants under this Indenture.
For purposes of this Section 1008(a), such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, the Company shall deliver to the Trustee by registered or certified
mail or by telegram, telex or facsimile transmission an officers certificate
specifying such event, notice or other action within five Business Days of its
occurrence.
(C) When any Registration Default (as defined in the Registration
Rights Agreement) occurs, the Company shall deliver to the Trustee by registered
or certified mail or by facsimile transmission an Officers' Certificate
specifying the nature of such Registration Default within 10 days of its
occurrence. In addition, the Company shall deliver to the Trustee on each
Interest Payment Date during the continuance of a Registration Default and on
the Interest Payment Date following the cure of a Registration Default, an
Officers' Certificate
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specifying the amount of additional interest which has accrued and which is then
owing under the Registration Rights Agreement.
SECTION 1009. Provision of Reports and Financial Statements.
At all times from and after the earlier of (i) the date of the
commencement of an Exchange Offer or the effectiveness of the Shelf Registration
Statement (the "Registration") and (ii) the date that is six months after the
Closing Date, in either case, whether or not the Company is required to file
reports with the Commission, the Company shall file on a timely basis with the
Commission, to the extent such filings are accepted by the Commission, the
annual reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13(a) or 15(d) of the Exchange
Act. The Company shall also be required (a) to supply to the Trustee and each
Holder, or supply to the Trustee for forwarding to each such Holder, without
cost to such Holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective Holder of Securities promptly upon
written request. In addition, at all times prior to the earlier of the date of
the Registration and the date six months after the Closing Date, the Company
shall, at its cost, deliver to each Holder quarterly and annual reports
substantially equivalent to those that would be required by the Exchange Act and
shall supply copies of such reports and documents, at the Company's cost, to any
prospective Holder of the Securities designated by a Holder upon written
request. In addition, at all times prior to the Registration, upon request of
any Holder or any prospective purchaser of the Securities designated by a
Holder, the Company shall supply to such Holder or such prospective purchaser
the information required under Rule 144A under the Securities Act.
SECTION 1010. Limitation on Debt.
The Company shall not, and shall not permit any Restricted
Subsidiary to, create, issue, assume, guarantee or in any manner become directly
or indirectly liable for the payment of, or otherwise incur (collectively,
"incur"), any Debt (including Acquired Debt and the issuance of Disqualified
Stock), except that the Company or a Restricted Subsidiary may incur Debt or
issue Disqualified Stock if, at the time of such event, the Consolidated
Leverage Ratio would have been (i) less than 6.50 to 1 through May 15, 2001,
(ii) less than 6.25 to 1 from May 15, 2001 through May 15, 2003 and (iii) less
than 6.0 to 1 thereafter.
In making the foregoing calculation, pro forma effect shall be given
to: (i) the incurrence of such Debt and (if applicable) the application of the
net proceeds therefrom,
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including to refinance other Debt, as if such Debt was incurred and the
application of such proceeds occurred at the beginning of the four-quarter
period ending on the last day of the immediately preceding fiscal quarter of the
Company for which internal financial statements are available, (ii) the
incurrence, repayment or retirement of any other Debt by the Company or its
Restricted Subsidiaries since the first day of such four-quarter period as if
such Debt was incurred, repaid or retired at the beginning of such four-quarter
period, (iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries,
as the case may be, since the first day of such four-quarter period, as if such
acquisition or disposition occurred at the beginning of such four-quarter
period. In making a computation under the foregoing clause (i) or (ii), (A)
interest on Debt bearing a floating interest rate shall be computed as if the
rate in effect on the date of computation had been the applicable rate for the
entire period, (B) if such Debt bears, at the option of the Company, a fixed or
floating rate of interest, interest thereon shall be computed by applying, at
the option of the Company, either the fixed or floating rate and (C) the amount
of Debt under a revolving credit facility shall be computed based upon the
average daily balance of such Debt during such four-quarter period and (iv) if
such four-quarter period ends before September 30, 1998, the TSS acquisition
and, if such four-quarter period ends before March 31, 1999, the Unisign
acquisition, in each case as if such acquisitions occurred at the beginning of
such four-quarter period.
Notwithstanding the foregoing, the Company may, and may, to the
extent expressly permitted below, permit its Restricted Subsidiaries to, incur
any of the following Debt ("Permitted Debt"):
(i) Debt of the Company or any Restricted Subsidiary under one or
more credit facilities in an aggregate principal amount at any one time
outstanding not to exceed $20,000,000 less any amounts applied to the
permanent reduction of such credit facilities pursuant to Section 1013
covenant (and any guarantees of such Debt by a Restricted Subsidiary).
(ii) Debt of the Company or any Restricted Subsidiary outstanding on
the Closing Date, other than Debt described under clause (i) above, and
obligations under Hedging Obligations in effect on the Closing Date.
(iii) Debt owed by the Company to any Restricted Subsidiary or owed
by any Restricted Subsidiary to the Company or any other Restricted
Subsidiary (provided that such Debt is held by the Company or such
Restricted Subsidiary).
(iv) Debt represented by the Securities (other than any Additional
Securities) and any Subsidiary Guarantee.
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(v) (A) Capitalized Lease Obligations of the Company or any
Restricted Subsidiary, and (B) Debt of the Company or any Restricted
Subsidiary under purchase money mortgages or secured by purchase money
security interests so long as (x) such Debt is not secured by any property
or assets of the Company or any Restricted Subsidiary other than the
property and assets so acquired and (y) such Debt is created prior to, at
the time of or within six months after the later of the acquisition, the
completion of construction or the commencement of full operation of the
related property; provided that the aggregate amount of Debt under (A) and
(B) does not exceed $5.0 million at any one time outstanding.
(vi) Debt of the Company or any Restricted Subsidiary consisting of
guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock.
(vii) Guarantees by any Restricted Subsidiary made in accordance
with the provisions of Section 1019.
(viii) Any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
outstanding Debt, other than Debt incurred pursuant to clause (i), (iii),
(v), (vi) or (vii), of this definition, including any successive
refinancings thereof, so long as (A) any such new Debt is in a principal
amount that does not exceed the principal amount so refinanced, plus the
amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt refinanced or the amount of
any premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus the amount of the expenses of the
Company reasonably estimated to be incurred in connection with such
refinancing, (B) in the case of any refinancing of Subordinated Debt, such
new Debt is made subordinate to the Securities at least to the same extent
as the Debt being refinanced and (C) such refinancing Debt does not have a
Weighted Average Life less than the Weighted Average Life of the Debt
being refinanced and does not have a final scheduled maturity earlier than
the final scheduled maturity, or permit redemption at the option of the
holder earlier than the earliest date of redemption at the option of the
holder, of the Debt being refinanced.
SECTION 1011. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
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(a) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Capital Stock of the Company or any
Restricted Subsidiary, other than (i) dividends or distributions payable
solely in Qualified Equity Interests, (ii) dividends or distributions by a
Restricted Subsidiary payable to the Company or another Restricted
Subsidiary or (iii) pro rata dividends or distributions on common stock of
a Restricted Subsidiary held by minority stockholders, provided that such
dividends do not in the aggregate exceed the minority stockholders' pro
rata share of such Restricted Subsidiary's net income from the first day
of the Company's fiscal quarter during which the Closing Date occurs;
(b) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock (or any options,
warrants or other rights to acquire shares of Capital Stock) of (i) the
Company, Holdings or any Unrestricted Subsidiary or (ii) any Restricted
Subsidiary held by any Affiliate of the Company (other than, in either
case, any such Capital Stock owned by the Company or any of its Restricted
Subsidiaries);
(c) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Debt; or
(d) make any Investment (other than a Permitted Investment) in any
Person
(such payments or other actions described in (but not excluded from) clauses (a)
through (d) being referred to as "Restricted Payments"), unless at the time of,
and immediately after giving effect to, the proposed Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing,
(ii) the Company could incur at least $1.00 of additional Debt
(other than Permitted Debt) pursuant to the first paragraph of Section
1010, and
(iii) the aggregate amount of all Restricted Payments declared or
made after the Closing Date does not exceed the sum of:
(A) the remainder of (x) 100% of the aggregate cumulative
Consolidated EBITDA for the period beginning on the first day of the
Company's fiscal quarter during which the Closing Date occurs and
ending on the last day of the Company's most recent fiscal quarter
for which internal financial statements are available ending prior
to the date of such proposed Restricted Payment (the "Computation
Period") minus (y) the product of 1.4
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times the aggregate cumulative Consolidated Fixed Charges for the
Computation Period, plus
(B) the aggregate net proceeds, including the fair market
value of property other than cash (as determined by the Board of
Directors, whose good faith determination will be conclusive), after
the Closing Date from the issuance or sale (other than to a
Subsidiary) of debt securities or Disqualified Stock that have been
converted into or exchanged for Qualified Stock of the Company,
together with the aggregate net cash proceeds received by the
Company at the time of such conversion or exchange, plus received by
the Company after the Closing Date from the issuance or sale (other
than to a Subsidiary) of Qualified Equity Interests of the Company
(excluding from this computation proceeds of an Equity Offering
received by the Company that are used by it to redeem Securities as
discussed above), plus
(C) the aggregate net proceeds, including the fair market
value of property other than cash (as determined by the Board of
Directors, whose good faith determination shall be conclusive),
after the Closing Date from the issuance or sale (other than to a
Subsidiary) of debt securities or Disqualified Stock that have been
converted into or exchanged for Qualified Stock of the Company,
together with the aggregate net cash proceeds received by the
Company at the time of such conversion or exchange, plus received by
the Company after the Closing Date from the issuance or sale (other
than to a Subsidiary) of debt securities or Disqualified Stock that
have been converted into or exchanged for Qualified Stock of the
Company, together with the aggregate net proceeds received by the
Company at the time of such conversion or exchange, plus
(D) $5.0 million.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may take any of the following actions, so long as (with respect to
clauses (e) and (f) below) no Default or Event of Default has occurred and is
continuing or would occur:
(a) The payment of any dividend within 60 days after the date of
declaration thereof, if at the declaration date such payment would not
have been prohibited by the foregoing provision.
(b) The repurchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company, in exchange for,
or out of the net cash
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proceeds of a substantially concurrent issuance and sale (other than to a
Subsidiary) of, Qualified Equity Interests of the Company.
(c) The purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Debt in exchange for, or out of
the net cash proceeds of a substantially concurrent issuance and sale
(other than to a Subsidiary) of, Qualified Equity Interests of the
Company.
(d) The purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Debt in exchange for, or out of the
net cash proceeds of a substantially concurrent issuance or sale (other
than to a Subsidiary) of, Subordinated Debt, so long as the Company or a
Restricted Subsidiary would be permitted to refinance such original
Subordinated Debt with such new Subordinated Debt pursuant to clause
(viii) of the definition of Permitted Debt.
(e) The repurchase of any Subordinated Debt at a purchase price not
greater than 101% of the principal amount of such Subordinated Debt in the
event of a "change of control" in accordance with provisions similar to
Section 1012; provided that, prior to or simultaneously with such
repurchase, the Company has made the Change of Control Offer as provided
in such Section with respect to the Securities and has repurchased all
Securities validly tendered for payment in connection with such Change of
Control Offer.
(f) The purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company or
Holdings, options on any such shares or related stock appreciation rights
or similar securities held by officers or employees or former officers or
employees (or their estates or beneficiaries under their estates) or by
any employee benefit plan, upon death, disability, retirement or
termination of employment or pursuant to the terms of any employee benefit
plan or any other agreement under which such shares of stock or related
rights were issued; provided that the aggregate cash consideration paid
for such purchase, redemption, acquisition, cancellation or other
retirement of such shares of Capital Stock after the Closing Date does not
exceed in any fiscal year the sum of (i) $1.0 million and (ii) any
proceeds received by the Company under a related key man or other life
insurance policy.
(g) Make payments to Holdings pursuant to the Tax Sharing Agreement
as in effect on the Closing Date; and reimburse Holdings for out-of-pocket
administrative expenses incurred by Holdings, provided such reimbursement
may not exceed $50,000 in any fiscal year.
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The payments described in clauses (b), (c), (e) and (f) of this paragraph shall
be Restricted Payments that shall be permitted to be taken in accordance with
this paragraph but shall reduce the amount that would otherwise be available for
Restricted Payments under the foregoing clause (iii) of the first paragraph of
this Section 1011 and the payments described in clauses (a), (d) and (g) of this
paragraph shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph and shall not reduce the amount that would
otherwise be available for Restricted Payments under the foregoing clause (iii)
of the first paragraph of this Section 1011.
For the purpose of making any calculations under this Indenture (i)
if a Restricted Subsidiary is designated an Unrestricted Subsidiary, the Company
shall be deemed to have made an Investment in amount equal to the fair market
value of the net assets of such Restricted Subsidiary at the time of such
designation as determined by the Board of Directors of the Company, whose good
faith determination shall be conclusive, (ii) any property transferred to or
from an Unrestricted Subsidiary shall be valued at fair market value at the time
of such transfer, as determined by the Board of Directors of the Company, whose
good faith determination shall be conclusive, and (iii) subject to the
foregoing, the amount of any Restricted Payment, if other than cash, shall be
determined by the Board of Directors of the Company, whose good faith
determination shall be conclusive.
If the aggregate amount of all Restricted Payments calculated under
the foregoing provisions includes an Investment in an Unrestricted Subsidiary or
other Person that thereafter becomes a Restricted Subsidiary, the aggregate
amount of all Restricted Payments calculated under the foregoing provisions
shall be reduced by the lesser of (x) the net asset value of such Subsidiary at
the time it becomes a Restricted Subsidiary and (y) the initial amount of such
Investment.
If an Investment resulted in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments calculated under the foregoing
provision shall be reduced by the amount of any net reduction in such Investment
(resulting from the payment of interest or dividends, loan repayment, transfer
of assets or otherwise), to the extent such net reduction is not included in the
Company's Consolidated Adjusted Net Income; provided that the total amount by
which the aggregate amount of all Restricted Payments may be reduced may not
exceed the lesser of (x) the cash proceeds received by the Company and its
Restricted Subsidiaries in connection with such net reduction and (y) the
initial amount of such Investment.
In computing Consolidated Adjusted Net Income of the Company for
purposes of the foregoing clause (iii)(A), (i) the Company may use audited
financial statements for the portions of the relevant period for which audited
financial statements are available on the date of determination and unaudited
financial statements and other current financial data based on
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the books and records of the Company for the remaining portion of such period
and (ii) the Company shall be permitted to rely in good faith on the financial
statements and other financial data derived from the books and records of the
Company that are available on the date of determination. If the Company makes a
Restricted Payment that, at the time of the making of such Restricted Payment,
would in the good faith determination of the Company be permitted under the
requirements of this Indenture, such Restricted Payment shall be deemed to have
been made in compliance with this Indenture notwithstanding any subsequent
adjustments made in good faith to the Company's financial statements affecting
Consolidated Adjusted Net Income of the Company for any period.
SECTION 1012. Purchase of Securities upon a Change of Control.
If a Change of Control occurs at any time, then each Holder shall
have the right to require that the Company purchase such Holder's Securities, in
whole or in part in integral multiples of $1,000, at a purchase price in cash
equal to 101% of the principal amount of such Securities, plus accrued and
unpaid interest, if any, to the date of purchase, pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in this Indenture.
Within 30 days following any Change of Control, the Company shall
notify the Trustee thereof and give written notice of such Change of Control to
each Holder by first-class mail, postage prepaid, at its address appearing in
the security register, stating, among other things, (i) the purchase price and
the purchase date, which shall be a Business Day no earlier than 30 days nor
later than 60 days from the date such notice is mailed or such later date as is
necessary to comply with requirements under the Exchange Act; (ii) that any
Security not tendered shall continue to accrue interest; (iii) that, unless the
Company defaults in the payment of the purchase price, any Securities accepted
for payment pursuant to the Change of Control Offer shall cease to accrue
interest after the purchase date (the "Change of Control Purchase Date"); (iv)
that Holders electing to have any Securities purchased pursuant to a Change of
Control Offer shall be required to surrender the Securities, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Securities
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
Purchase Date; (v) that Holders shall be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Securities delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Securities purchased; (vi) that
Holders whose Securities are being purchased only in part shall be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; (vii) the instructions that
the Holders of Securities must
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follow in order to tender their Securities; and (viii) the circumstances and
relevant facts regarding such Change of Control.
The Company shall comply with the applicable tender offer rules
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws and regulations in connection with a Change of Control Offer.
SECTION 1013. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Asset Sale unless (i) the consideration received by
the Company or such Restricted Subsidiary for such Asset Sale is not less than
the fair market value of the assets sold (as determined by the Board of
Directors of the Company, whose good faith determination will be conclusive) and
(ii) the consideration received by the Company or the relevant Restricted
Subsidiary in respect of such Asset Sale consists of at least 85% (A) cash or
cash equivalents or (B) the assumption by the transferee of Debt of the Company
or a Restricted Subsidiary ranked pari passu with the Securities and release of
the Company or such Restricted Subsidiary from all liability on such Debt, or a
combination of the foregoing.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company may, at its option, within 270 days after such Asset Sale, (i)
apply all or a portion of the Net Cash Proceeds to the permanent reduction of
the amounts outstanding under the Revolving Credit Facility or other credit
facility referred to in clause (i) of the definition of Permitted Debt or to the
repayment of other senior Debt of the Company or a Restricted Subsidiary or (ii)
invest (or enter into a legally binding agreement to invest) all or a portion of
such Net Cash Proceeds in properties and assets to replace the properties and
assets that were the subject of the Asset Sale or in properties and assets that
shall be used in businesses of the Company or its Restricted Subsidiaries, as
the case may be, existing on the Closing Date. If any such legally binding
agreement to invest such Net Cash Proceeds is terminated, the Company may,
within 90 days of such termination or within 270 days of such Asset Sale,
whichever is later, invest such Net Cash Proceeds as provided in clause (b)(i)
or (b)(ii) (without regard to the parenthetical contained in such clause
(b)(ii)) above. The amount of such Net Cash Proceeds not so used as set forth
above in this paragraph (b) constitutes "Excess Proceeds".
(c) When the aggregate amount of Excess Proceeds $5,000,000, the
Company shall, within 30 days thereafter, make an offer to purchase (an "Asset
Sale Offer") from all Holders and from the holders of any Pari Passu Debt, to
the extent required by the terms thereof, on a pro rata basis, in accordance
with the procedures set forth in this Indenture or the agreements governing any
such Pari Passu Debt, the maximum principal amount (expressed as a multiple of
$1,000) of the Securities and any such Pari Passu Debt that may be
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purchased with the Excess Proceeds. The offer price as to each Note and any such
Pari Passu Debt shall be payable in cash in an amount equal to (solely in the
case of the Securities) 100% of the principal amount of such Security and
(solely in the case of Pari Passu Debt) no greater than 100% of the principal
amount (or accreted value, as applicable) of such Pari Passu Debt, plus in each
case accrued interest, if any, to the date of repurchase. To the extent that the
aggregate principal amount of Securities and any such Pari Passu Debt tendered
pursuant to an exceeds proceeds offer is less than the Excess Proceeds, the
Company may use the portion of the Excess Proceeds not required to be used to
repurchase the Securities and such Pari Passu Debt for general corporate
purposes. If the aggregate principal amount of Securities and any such Pari
Passu Debt validly tendered and not withdrawn by holders thereof exceeds the
Excess Proceeds, the Securities and any such Pari Passu Debt to be purchased
shall be selected on a pro rata basis (based upon the principal amount of
Securities and the principal amount or accreted value of such Pari Passu Debt
tendered by each holder). Upon completion of such offer to purchase, the amount
of Excess Proceeds shall be reset to zero.
(d) Within the time period described in (c) above for making an
Asset Sale Offer, the Company shall mail a notice to each Holder in the manner
provided in Section 106 stating: (1) that the Asset Sale Offer is being made
pursuant to the provisions of Section 1013 of this Indenture and that all
Securities duly and timely tendered shall be accepted for payment (except, as
provided above, if the aggregate principal amount as the case may be, of the
Securities and any Pari Passu Debt surrendered exceeds the amount of Excess
Proceeds); (2) the purchase price and the purchase date (the "Asset Sale
Purchase Date"), which date shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed; (3) that any Securities not tendered
shall continue to accrue interest; (4) that, unless the Company defaults in the
payment of the purchase price, all Securities accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the Asset Sale
Purchase Date; (5) that Holders electing to have any Securities purchased
pursuant to an Asset Sale Offer shall be required to surrender the Securities,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Securities 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; (6) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Asset Sale Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Securities delivered for purchase, and a statement that
such Holder is withdrawing his election to have such Securities purchased; (7)
that Holders whose Securities are being purchased only in part shall be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; (8) any other procedures that
the Holders of Securities must follow in order to tender their Securities; and
(9) the circumstances and relevant facts regarding such Asset Sale.
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SECTION 1014. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into or suffer to exist any
transaction with, or for the benefit of, any Affiliate of the Company unless (a)
such transaction is on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's length transaction with third parties who are not
Affiliates and (b) either (i) with respect to any transaction or series of
related transactions involving aggregate payments in excess of $250,000 but less
than $2,500,000, the Company delivers an officers' certificate to the Trustee
certifying that such transaction or transactions comply with clause (a) above or
(ii) with respect to a transaction or series of related transactions involving
aggregate payments equal or greater than $2,500,000, such transaction or
transactions have been approved by the Board of Directors (including a majority
of the Disinterested Directors) of the Company or the Company has obtained a
written opinion from a nationally recognized investment banking firm to the
effect that such transaction or transactions are fair to the Company or such
Restricted Subsidiary from a financial point of view.
The foregoing covenant shall not restrict any of the following:
(A) Transactions among the Company and/or its Restricted
Subsidiaries.
(B) The Company from paying reasonably and customary regular
compensation and fees to directors of the Company or any Restricted
Subsidiary who are not employees of the Company or any Restricted
Subsidiary.
(C) Transactions permitted by the provisions of Section 1011.
SECTION 1015. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Restricted Subsidiary to (a) pay dividends, in cash or
otherwise, or make any other distributions on or in respect of its Capital
Stock, (b) pay any Debt owed to the Company or any other Restricted Subsidiary,
(c) make loans or advances to the Company or any other Restricted Subsidiary or
(d) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of any of the following:
(i) Any agreement or instrument in effect on the Closing Date.
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(ii) Customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Restricted Subsidiary.
(iii) Any agreement or instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of
the Person, so acquired.
(iv) The refinancing or successive refinancings of Debt incurred
under agreements or instruments referred to in the foregoing clause (i) or
(iii), so long as the encumbrances or restrictions contained therein are
no less favorable to the Company or any Restricted Subsidiary than those
contained in such original agreement or instrument.
(v) Any agreement providing for the incurrence of Debt by a
Restricted Subsidiary in compliance with the provisions of Section 1010,
provided that such Restricted Subsidiary is or becomes a Subsidiary
Guarantor.
(vi) Contained in any agreement pursuant to which Debt was issued if
(A) the encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant contained in
such Debt, (B) the encumbrance or restriction is not materially more
disadvantageous to the holders of the Securities than is customary in
comparable financings (as determined by the Company) and (C) the Company
determines that any such encumbrance or restriction shall not materially
affect the Company's ability to make principal or interest payments on the
Securities.
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not sell, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell, any shares of Capital
Stock of a Restricted Subsidiary (including options, warrants or other rights to
purchase shares of such Capital Stock) except (a) to the Company or a Wholly
Owned Restricted Subsidiary, (b) issuances or sales to foreign nationals of
shares of Capital Stock of foreign Restricted Subsidiaries, to the extent
required by applicable law, or issuances or sales to directors of directors'
qualifying shares, (c) if, immediately after giving effect to such issuance or
sale, neither the Company nor any of its Subsidiaries own any shares of Capital
Stock of such Restricted Subsidiary (including options, warrants or other rights
to purchase shares of such Capital Stock) or (d) if, immediately after giving
effect to such issuance or sale, such Restricted Subsidiary would no longer
constitute a
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Restricted Subsidiary and any remaining Investment in such Person would have
been permitted to be made under the provisions of Section 1011 if made on the
date of such issuance or sale.
SECTION 1017. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien of any kind on or with respect to any of its property or assets,
including any shares of stock or debt of any Restricted Subsidiary, whether
owned at the Closing Date or thereafter acquired, or any income, profits or
proceeds therefrom, or assign or otherwise convey any right to receive income
thereon, unless (a) in the case of any Lien securing Subordinated Debt, the
Securities are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Lien and (b) in the case of any other Lien, the
Securities are equally and ratably secured with the obligation or liability
secured by such Lien.
Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, incur any of the following Liens ("Permitted Liens"):
(i) Liens existing as of the Closing Date.
(ii) Liens on property or assets of the Company or any Restricted
Subsidiary securing Debt under one or more credit facilities in a
principal amount not to exceed the principal amount of the outstanding
Debt permitted by clause (i) of the definition of "Permitted Debt".
(iii) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Company or any Restricted Subsidiary.
(iv) Liens securing the Securities or any Subsidiary Guarantee.
(v) Liens representing the interest or title of lessors under
Capitalized Lease Obligations or Liens securing purchase money mortgages
or purchase money security interests, so long as the aggregate amount
secured by such Xxxxx does not exceed the respective amounts permitted by
clause (v) of the definition of "Permitted Debt".
(vi) Liens securing Acquired Debt created prior to (and not in
connection with or in contemplation of) the incurrence of such Debt by the
Company or any Restricted Subsidiary; provided that such Lien does not
extend to any property or assets of the Company or any Restricted
Subsidiary other the property and assets acquired in connection with the
incurrence of such Acquired Debt.
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(vii) Liens securing Hedging Obligations incurred in the ordinary
course of business.
(viii) Statutory Liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate
proceedings.
(ix) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted.
(x) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like
nature incurred in the ordinary course of business (other than contracts
for the payment of money).
(xi) Easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material respect with the
business of the Company or any Restricted Subsidiary incurred in the
ordinary course of business.
(xii) Liens arising by reason of any judgment, decree or order of
any court, so long as such Lien is adequately bonded and any appropriate
legal proceedings that may have been duly initiated for the review of such
judgment, decree or order have not been finally terminated or the period
within which such proceedings may be initiated has not expired.
(xiii) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to
such letters of credit and the products and proceeds thereof.
(xiv) Liens upon specific items of inventory or other goods and
proceeds of the Company or any Restricted Subsidiary securing its
obligations in respect of bankers' acceptances issued or created for the
account of any Person to facilitate the purchase, shipment or storage of
such inventory or other goods.
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods.
(xvi) Any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (i) through (xv); provided
that any such extension,
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renewal or replacement is no more restrictive in any material respect than
the Lien so extended, renewed or replaced and does not extend to any
additional property or assets.
SECTION 1018. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as (i) neither the Company nor any Restricted
Subsidiary is directly or indirectly liable for any Debt of such Subsidiary,
(ii) no default with respect to any Debt of such Subsidiary would permit (upon
notice, lapse of time or otherwise) any holder of any Debt of the Company or any
Restricted Subsidiary to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its stated maturity, (iii)
any Investment in such Subsidiary made as a result of designating such
Subsidiary an Unrestricted Subsidiary shall not violate the provisions of
Section 1011, (iv) neither the Company nor any Restricted Subsidiary has a
contract, agreement, arrangement, understanding or obligation of any kind,
whether written or oral, with such Subsidiary other than those that might be
obtained at the time from Persons who are not Affiliates of the Company and (v)
neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other equity interest in
such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results.
(b) The Board of Directors of the Company may designate any
Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no Default
or Event of Default has occurred and is continuing following such designation
and (ii) the Company could incur at least $1.00 of additional Debt (other than
Permitted Debt) pursuant to the first paragraph of Section 1010 (treating any
Debt of such Unrestricted Subsidiary as the incurrence of Debt by a Restricted
Subsidiary).
SECTION 1019. Limitation on Guarantees of Debt by Restricted
Subsidiaries.
All of the Company's future Restricted Subsidiaries shall be
Subsidiary Guarantors.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become liable for the
payment of any Debt of the Company or any Debt of any other Restricted
Subsidiary, unless (a) such Restricted Subsidiary simultaneously executes and
delivers a Subsidiary Guarantee and (b) with respect to any guarantee of
Subordinated Debt by a Restricted Subsidiary, any such guarantee is subordinated
to such Restricted Subsidiary's guarantee with respect to the Securities at
least to the same extent as such Subordinated Debt is subordinated to the
Securities.
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Any Subsidiary Guarantee may provide by its terms that it shall be
automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer to any Person not an Affiliate of the Company of all of the
Company's and the Restricted Subsidiaries' Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture), (ii) if applicable,
the release or discharge of the guarantee that resulted in the creation of such
guarantee of the Securities, except a discharge or release by or as a result of
payment under such guarantee or (iii) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of this
Indenture.
SECTION 1020. Waiver of Certain Covenants.
The Company or any Restricted Subsidiary may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1006 through 1019, inclusive, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities, by Act of such Holders, waive such compliance in such instance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1021. Payment for Consent.
Neither the Company nor any of its Restricted Subsidiaries 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 Securities unless such consideration is offered to be paid or is paid to
all Holders that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
(a) The Securities may be redeemed at the option of the Company, as
a whole or from time to time in part, at any time on or after May 15, 2003,
subject to the conditions and at the Redemption Prices specified in the form of
Security attached hereto as Exhibit A, together with accrued interest to the
Redemption Date.
(b) In addition, at any time or from time to time prior to May 15,
2001, the Company may at its option redeem Securities with the net proceeds of
one or more Equity Offerings at a redemption price equal to 111% of the
principal amount thereof, together with accrued interest, if any, to the date of
redemption (subject to the rights of Holders of record on the relevant record
date to receive interest due on an Interest Payment Date); provided that,
immediately after giving effect to any such redemption, at least 75% of the
aggregate principal amount of the Securities issued under this Indenture remains
outstanding. Any such redemption must be made within 90 days of the related
Equity Offering.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or such method as
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the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder shall
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) shall become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that interest thereon shall cease to accrue
on and after said date,
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(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any,
(7) the CUSIP or CINS number, as the case may be, and
(8) the Section of the Securities or this Indenture pursuant to
which the Securities are being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or prior to 10:00 a.m. (New York City time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in U.S. dollars sufficient to pay
the Redemption Price of, and accrued interest on, all the Securities which are
to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 309.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
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SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Xxxxxx's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and the Subsidiary Guarantors shall
be deemed to have been discharged from their obligations with respect to all
Outstanding Securities on the date the conditions set forth in Section 1204 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire Debt
represented by the Outstanding Securities, which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 1205 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Securities to receive payments in respect of
the principal of (and premium, if any, on) and interest on such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 304, 305,
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308, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Twelve. Subject to compliance with this
Article Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with respect
to the Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, each of the Company and the Subsidiary
Guarantors shall be released from its obligations under any covenant contained
in clauses (b), (c), (d) and (f) of Section 801 and in Sections 1007 through
1021 with respect to the Outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities, the Company and any Subsidiary Guarantor may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Sections 501(3), 501(4), 501(5), 501(6), 501(7) and 501(10) but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations (as defined herein) that through the scheduled payment of
principal and interest thereon shall provide money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay and discharge the principal
of (and premium, if any, on) and interest on the Outstanding Securities on
the Stated Maturity (or upon Redemption Date, if applicable) of such
principal (and premium, if any) or installment of interest;
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provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to said
payments with respect to the Securities. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1103 hereof, a
notice of its election to redeem all of the Outstanding Securities at a
future date in accordance with Article Eleven hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the timely payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (8) and (9) of Section 501 hereof are concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Subsidiary Guarantor is a party or by which it is bound.
(4) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the Closing Date, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities shall not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
shall be subject to
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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.
(5) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Securities Outstanding shall not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and shall 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.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1202 or the covenant defeasance under Section 1203, as the case may be,
have been complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance, as applicable, in accordance with this Article.
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SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1202 or 1203, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1205; provided, however, that if the Company makes any payment of
principal of (or premium, if any) or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEES
SECTION 1301. Subsidiary Guarantees.
As of the date of this Indenture the Company does not have any
Subsidiaries; however, the Company will cause each Person that becomes a
Restricted Subsidiary to become a Subsidiary Guarantor as provided in Section
1308.
(a) Subject to clause (b) of this Section 1301, each Subsidiary
Guarantor hereby, jointly and severally, fully, absolutely, unconditionally and
irrevocably guarantees to each Holder of a Security authenticated and delivered
by the Trustee, and to the Trustee on behalf of each Holder, the punctual
payment when due of all Indenture Obligations which, for purposes of its
Subsidiary Guarantee, shall also be deemed to include all commissions, fees,
charges, costs and other expenses (including reasonable legal fees and
disbursements of counsel) arising out of or incurred by the Trustee or the
Holders in connection with the enforcement of any Subsidiary Guarantee. Without
limiting the generality of the foregoing, each Subsidiary Guarantor's liability
shall extend to all amounts that constitute part of the Indenture Obligations
and would be owed by the Company to such Holder or the Trustee under the
Securities or this Indenture but for the fact that they are unenforceable,
reduced, limited, suspended or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Company.
(b) Each Subsidiary Guarantor and by its acceptance hereof each
Holder hereby confirms that it is the intention of all such parties that the
Guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or
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conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act of any similar federal or
state law or the provisions of its local law relating to fraudulent transfer or
conveyance. To effectuate the foregoing intention, the Holders and each
Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount as shall, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to paragraph (c) of this Section 1301,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
(c) In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by the Funding Guarantor in discharging the Indenture Obligations of
the Company or any other Subsidiary Guarantor's obligations with respect to its
Subsidiary Guarantee. "Adjusted Net Assets" of such Subsidiary Guarantor at any
date shall mean the lesser of (x) the amount by which the fair value of the
property of such Subsidiary Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Subsidiary Guarantee of such Subsidiary
Guarantor at such date and (y) the amount by which the present fair salable
value of the assets of such Subsidiary Guarantor at such date exceeds the amount
that shall be required to pay the probable liability of such Subsidiary
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), excluding debt in respect of the
Subsidiary Guarantee, as they become absolute and matured.
SECTION 1302. Guaranty Absolute.
Subject to the limitations in Section 1301, each Subsidiary
Guarantor guarantees that the Securities shall be paid or performed strictly in
accordance with the terms of the Securities and this Indenture, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Holder with respect thereto.
The obligations of each Subsidiary Guarantor under its Subsidiary Guarantee are
independent of the obligations of the Company under the Securities and this
Indenture, and a separate action or actions may be brought and prosecuted
against such Subsidiary Guarantor to
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enforce its Subsidiary Guarantee, irrespective of whether any action is brought
against the Company or any other Subsidiary Guarantor or whether the Company or
any other Subsidiary Guarantor is joined in any such action or actions. The
liability of each Subsidiary Guarantor under its Subsidiary Guarantee shall be
absolute and unconditional and the liability and obligations of such Subsidiary
Guarantor hereunder shall not be released, discharged, mitigated, waived,
impaired or affected in whole or in part by:
(a) any lack of validity or enforceability of this Indenture or the
Securities with respect to the Company or any Subsidiary Guarantor or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Indenture Obligations, or any other
amendment or waiver of or any consent to departure from this Indenture,
including any increase in the Indenture Obligations resulting from the
extension of additional credit to the Company or otherwise;
(c) the failure to give notice to the Subsidiary Guarantor of the
occurrence of a Default under the provisions of this Indenture or the
Securities;
(d) any taking, release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the Indenture
Obligations;
(e) any failure, omission, delay by or inability on the part of the
Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in this Indenture or the
Securities;
(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or any Subsidiary
Guarantor with or into any other Person, the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or
substantially all the assets of the Company or any Subsidiary Guarantor,
the marshalling of the assets and liabilities of the Company or any
Subsidiary Guarantor, the receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
with the creditors, or readjustment of, or other similar proceedings
affecting the Company or any Subsidiary Guarantor, or any of the assets of
any of them;
(g) the assignment of any right, title or interest of the Trustee or
any Holder in this Indenture or the Securities to any other Person; or
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(h) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company or a Subsidiary
Guarantor, other than payment in full of the Indenture Obligations; it
being the intent of each Subsidiary Guarantor that its obligations
hereunder shall not be discharged except by payment of all amounts owing
pursuant to this Indenture or the Securities.
The Subsidiary Guarantee of each Subsidiary Guarantor shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Indenture Obligations is rescinded or must otherwise be returned by
any Holder or the Trustee upon the insolvency, bankruptcy or reorganization of
the Company or otherwise, all as though such payment had not been made. Each
Subsidiary Guarantor further agrees, to the fullest extent that it may lawfully
do so, that, as between such Subsidiary Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five of this
Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (ii) in the event of any acceleration of
such obligations as provided in Article Five of this Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Subsidiary Guarantor for the purpose of this Subsidiary Guarantee.
SECTION 1303. Waivers.
(a) Each Subsidiary Guarantor hereby expressly waives (to the extent
permitted by law) notice of the acceptance of its Subsidiary Guarantee and
notice of the existence, renewal, extension or the non-performance, non-payment,
or non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of this Indenture or the Securities or any other
notice whatsoever to or upon the Company or such Subsidiary Guarantor with
respect to the Indenture Obligations. Each Subsidiary Guarantor hereby
acknowledges communication to it of the terms of this Indenture and the
Securities and all of the provisions herein contained and consents to and
approves the same. Each Subsidiary Guarantor hereby expressly waives (to the
extent permitted by law) diligence, presentment and protest.
(b) Without prejudice to any of the rights or recourse which the
Trustee or the Holders may have against the Company, each Subsidiary Guarantor
hereby expressly waives (to the extent permitted by law) any right to require
the Trustee or the Holders to:
(1) initiate or exhaust any rights, remedies or recourse against the
Company, any Subsidiary Guarantor or any other Person;
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(2) value, realize upon, or dispose of any security of the Company
or any other Person held by the Trustee or the Holders; or
(3) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity;
before requiring, becoming entitled to or demanding payment from such Subsidiary
Guarantor under this Subsidiary Guarantee.
SECTION 1304. Subrogation.
Each Subsidiary Guarantor shall not exercise any rights that it may
acquire by way of subrogation under this Subsidiary Guarantee, by any payment
made hereunder or otherwise, until all the Indenture Obligations shall have been
paid in full. If any amount shall be paid to any Subsidiary Guarantor on account
of any such subrogation rights at any time when all the Indenture Obligations
shall not have been paid in full, such amount shall be held in trust for the
benefit of the Holders and the Trustees and shall forthwith be paid to the
Trustee, on behalf of the Holders, to be credited and applied to the Indenture
Obligations, whether matured or unmatured.
SECTION 1305. No Waiver; Remedies.
No failure on the part of any Holder or the Trustee to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent
Obligation.
(a) This Subsidiary Guarantee is a continuing guarantee of the
payment of all Indenture Obligations and shall remain in full force and effect
until the payment in full (subject to Section 1301) of all of the Indenture
Obligations and all other amounts payable under this Subsidiary Guarantee and
shall apply to and secure any ultimate balance due or remaining unpaid to the
Trustee or the Holders under this Indenture or the Securities; and this
Subsidiary Guarantee shall not be considered as wholly or partially satisfied by
the payment or liquidation at any time or from time to time of any sum of money
for the time being due or remaining unpaid to the Trustee or the Holders.
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(b) Subject to Section 1301, each Subsidiary Guarantor hereby
guarantees that the Indenture Obligations shall be paid to the Trustee without
set-off or counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise) in lawful currency of the United States of America.
(c) Subject to Section 1301, each Subsidiary Guarantor guarantees
that the Indenture Obligations shall be paid strictly in accordance with their
terms regardless of any lack of validity or enforceability of any of such terms
or the rights of the Holders with respect thereto.
(d) Each Subsidiary Guarantor's liability to pay or perform or cause
the performance of the Indenture Obligations under this Subsidiary Guarantee
shall arise forthwith after demand for payment by the Trustee has been given to
such Subsidiary Guarantor in the manner prescribed in this Indenture.
SECTION 1307. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms.
(a) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor or shall prevent any sale or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor,
which consolidation, merger, sale or conveyance is otherwise in accordance with
the terms of this Indenture.
(b) Other than as set forth in paragraph (a) of this Section, no
Subsidiary Guarantor may consolidate with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving Person) another Person whether or not
affiliated with such Subsidiary Guarantor unless: (i) subject to the provisions
of Section 1309, the Person formed by or surviving such consolidation or merger
(if other than such Subsidiary Guarantor) assumes all of the obligations of such
Subsidiary Guarantor under this Indenture and its Subsidiary Guarantee, pursuant
to a supplemental indenture in form and substance satisfactory to the Trustee,
and (b) immediately after giving effect to such transaction, no Default or Event
of Default shall have occurred and be continuing.
SECTION 1308. Additional Subsidiary Guarantors.
The Company will cause each Person that becomes a Restricted
Subsidiary after the date of this Indenture to become a Subsidiary Guarantor
with respect to the Indenture Obligations by executing and delivering a
supplemental indenture to this Indenture providing for a Subsidiary Guarantee by
such Subsidiary under this Article Thirteen (or under a separate
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guarantee agreement consistent in all material respects with this Article
Thirteen). The Company shall deliver to the Trustee, together with the
supplemental indenture referred to above, an Opinion of Counsel that such
Subsidiary Guarantee is a legal, valid, binding and enforceable obligation of
such Subsidiary Guarantor, subject to customary local law exceptions and
customary exceptions for bankruptcy and equitable principles.
SECTION 1309. Releases.
(a) In the event of (i) the conveyance, sale, assignment, transfer
or other disposition (by way of merger, consolidation or otherwise) of all of
the Capital Stock of a Subsidiary Guarantor to a Person that is not an Affiliate
of the Company in compliance with this Section 1309 and the terms of this
Indenture or (ii) a conveyance, sale, assignment, transfer or other disposition
of all or substantially all of the assets of a Subsidiary Guarantor (by way of
merger, consolidation or otherwise) to a Person that is not an Affiliate of the
Company in compliance with this Section 1309 and the terms of this Indenture,
then such Subsidiary Guarantor (or Person acquiring such assets in the event of
a sale or other disposition of all of the assets of such Subsidiary Guarantor)
shall be deemed automatically and unconditionally released from and discharged
from all of its obligations under this Article Thirteen and its Subsidiary
Guarantee without any further action required on the part of the Trustee or any
Holder; provided that, in the event such transaction constitutes an Asset Sale,
the Net Proceeds of such sale, transfer or other disposition are applied in
accordance with Section 1013 hereof.
(b) Any Subsidiary Guarantor that is designated by the Board of
Directors of the Company as an Unrestricted Subsidiary, or such Subsidiary
Guarantor ceases to be a Subsidiary of the Company, in accordance with the terms
of this Indenture may, at such time, at the option of the Board of Directors, be
released and relieved of its obligations under its Subsidiary Guarantee.
(c) Concurrently with the defeasance of the Securities under Section
1202 hereof, or the covenant defeasance of the Securities under Section 1203
hereof, the Subsidiary Guarantors shall be released from all their obligations
under their Subsidiary Guarantees under this Article Thirteen.
(d) The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a Company Request accompanied by an Officers'
Certificate certifying as to the compliance with this Section 1309. Any
Subsidiary Guarantor not so released shall remain liable for the full amount of
principal of and interest on the Securities as provided in its Subsidiary
Guarantee.
SECTION 1310. Benefits Acknowledged.
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Each Subsidiary Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that its guarantee and waivers pursuant to its Subsidiary
Guarantee are knowingly made in contemplation of such benefits.
SECTION 1311. Severability.
In case any provision of this Subsidiary Guarantee 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.
ARTICLE FOURTEEN
SECURITY
SECTION 1401. Security.
(a) On the Closing Date, the Company shall purchase, and at all
times, subject to the Pledge Agreement, pledge to the Trustee the Pledged
Securities as security for the benefit of the Holders. The Pledged Securities
must be in such amount as will be sufficient upon receipt of scheduled interest
on and principal payments of such Pledged Securities, in the opinion of a
nationally recognized firm of independent public accountants selected by the
Company, to provide for payment in full of the first two scheduled interest
payments due on the Outstanding Securities. The Pledged Securities shall be
pledged by the Company to the Trustee for its benefit and the benefit of the
Holders pursuant to the Pledge Agreement and shall be held in the Escrow Account
pending disposition pursuant to the Pledge Agreement.
(b) Each Holder, by its acceptance of a Security, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Securities) as
the same may be in effect or may be amended from time to time in accordance with
its terms, and authorizes and directs the Trustee to enter into the Pledge
Agreement and to perform its respective obligations and exercise its respective
rights thereunder in accordance therewith. The Company shall do or cause to be
done all such acts and things as may be reasonably necessary or proper, or as
may be required by the provisions of the Pledge Agreement, to assure and confirm
to the Trustee the security interest in the Pledged Securities contemplated
hereby, by the Pledge Agreement or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Securities secured hereby, according to the intent and
purposes herein expressed. The Company shall take, or shall cause to be taken,
any and all
109
98
actions reasonably required (and any action reasonably requested by the Trustee)
to cause the Pledge Agreement to create and maintain, as security for the
obligations of the Company under this Indenture and the Securities, valid and
enforceable first priority liens in and on all the Pledged Securities, in favor
of the Trustee, superior to and prior to the rights of third Persons and subject
to no other Liens.
(c) The release of any Pledged Securities pursuant to the Pledge
Agreement will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge Agreement. To
the extent applicable, the Company shall cause TIA Section 314(d), relating to
the release of property or securities from the Lien and security interest of the
Pledge Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge
Agreement, to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent appraiser or other
expert selected or approved by the Company in the exercise of reasonable care.
(d) The Company shall cause TIA Section 314(b), relating to opinions
of counsel regarding the Lien under the Pledge Agreement, to be complied with.
The Trustee may, to the extent permitted by Section 602 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such instruments.
(e) The Trustee, in its sole discretion and without the consent of
the Holders, may, and at the request of the Holders of at least 25% in aggregate
principal amount of Securities then Outstanding shall, on behalf of the Holders,
take all actions it deems necessary or appropriate in order to (i) enforce any
of the terms of the Pledge Agreement and (ii) collect and receive any an all
amounts payable in respect of the obligations of the Company thereunder. The
Trustee shall have power to institute and to maintain such suits and proceedings
as the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Pledged Securities (including power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interest of the Holders or of the Trustee).
110
99
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
TRI-STATE OUTDOOR MEDIA GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
__________________________________
Name: Xxxxxxx X. Xxxxx
Title: President
Chief Executive Officer
IBJ XXXXXXXX BANK & TRUST COMPANY
By /s/ Xxxxxxx Xxxxxxx
__________________________________
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
111
Exhibit A
[FACE OF SECURITY]
TRI-STATE OUTDOOR MEDIA GROUP, INC.
11% [Series B]* Senior Note due 2008
[CINS] [CUSIP] ______________
No. _______ $_________________
TRI-STATE OUTDOOR MEDIA GROUP, INC., a Kansas corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to ___________, or its
registered assigns, the principal sum of ____________________________________
($___________), on May 15, 2008.
Interest Payment Dates: May 15 and November 15 of each year
commencing November 15, 1998.
Regular Record Dates: May 1 and November 1 of each year.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officer.
Date: ______________ TRI-STATE OUTDOOR MEDIA GROUP, INC
By _____________________________________
Name:
Title:
________
* Include only for Exchange Securities.
112
A-2
(Form of Trustee's Certificate of Authentication)
This is one of the 11% [Series B]* Senior Notes due 2008 described in the
within-mentioned Indenture.
IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee
By: ___________________________________
Authorized Signatory
________
* Include only for Exchange Securities.
113
A-3
[REVERSE SIDE OF SECURITY]
TRI-STATE OUTDOOR MEDIA GROUP, INC.
11% [Series B] Senior Note due 2008
1. Principal and Interest.
The Company will pay the principal of this Security on May 15, 2008.
The Company promises to pay interest on the principal amount of this
Security on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of record of
the Securities at the close of business on the May 1 or November 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
November 15, 1998.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of May 15, 1998, among the Company and
the Initial Purchasers named therein (the "Registration Rights Agreement"). In
the event that either (a) the Exchange Offer Registration Statement (as defined
in the Registration Rights Agreement) is not filed with the Securities and
Exchange Commission on or prior to the 60th calendar day following the date of
original issue of the Securities (the "Closing Date"), or (b) the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th
calendar day following the Closing Date, or (c) the Exchange Offer (as defined
in the Registration Rights Agreement) is not consummated or a Shelf Registration
Statement (as defined in the Registration Rights Agreement) is not declared
effective on or prior to the 210th calendar day following the Closing Date, or
(d) either (A) the Exchange Offer Registration Statement ceases to be effective
at any time prior to the time that the Exchange Offer is consummated or (B) if
applicable, subject to certain exceptions, the Shelf Registration Statement has
been declared effective and such Shelf Registration Statement ceases to be
effective at any time prior to the second anniversary of its effective date
(each such event referred to in clause (a) through (d), a "Registration
Default"), then the per annum interest rate borne by this Security shall be
increased by 0.25% following the 60-day period referred to in clause (a) above,
following the 180-day period referred to in clause (b) above, following the
210-day period referred to in clause (c) above, or in the case of clause (d)
above, immediately following such Registration Default. Such per annum interest
rate will increase by an additional 0.25% at the beginning of each subsequent
30-day period in the case of clause (a), (b) or (c) above, or 90-day period in
114
A-4
the case of clause (d) above; provided, however, that in no event will the per
annum interest rate borne by the Notes be increased by more than 1.5%. Upon the
filing of the Exchange Offer Registration Statement, the effectiveness of the
Exchange Offer Registration Statement, the consummation of the Exchange Offer or
the effectiveness of a Shelf Registration Statement, as the case may be, the
interest rate borne by this Security from the date of such filing, consummation
or effectiveness, as the case may be, will be reduced to the original interest
rate set forth above; provided, however, that, if after such reduction in
interest rate, a different event specified in clause (a), (b), (c) or (d) above
occurs, the interest rate may again be increased pursuant to the foregoing
provisions.]*
Interest on this Security will accrue from the most recent date to
which interest has been paid on this Security [or the Security surrendered in
exchange herefor]** or, if no interest has been paid, from May 15, 1998;
provided that, if there is no existing default in the payment of interest and if
this Security is authenticated between a Regular Record Date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such Interest Payment Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
the rate borne by the Securities.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Securities on each May 15 and November 15 to the Persons
who are Holders (as reflected in the Security Register at the close of business
on the May 1 and November 1 (each a "Regular Record Date") immediately preceding
the Interest Payment Date), in each case, even if the Security is canceled on
registration of transfer or registration of exchange, redemption or repurchase
after such record date; provided that, with respect to the payment of principal,
the Company will make payment to the Holder that surrenders this Security to any
Paying Agent on or after May 15, 2008.
The Company will pay principal, premium, if any, and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. At the option of the Company, interest may
be paid by check mailed to the address of the Holder entitled thereto as such
address appears in the Security Register; provided that all
--------
* Include only for Initial Securities.
** Include only for Exchange Securities
115
A-5
payments to the Holders who have given wire transfer instructions to the Trustee
(or other Paying Agent) by the Regular Record Date immediately preceding such
Interest Payment Date shall be required to be made by wire transfer of
immediately available funds to the accounts specified by such Holders. If a
payment date is a date other than a Business Day at a place of payment, payment
may be made on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Authenticating Agent, Paying
Agent and Registrar. The Company may change any Authenticating Agent, Paying
Agent or Registrar upon written notice. The Company, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Securities under an Indenture dated as of May
15, 1998 (the "Indenture"), between the Company and IBJ Xxxxxxxx Bank & Trust
Company, trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Securities are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Security and the terms of
the Indenture, the terms of the Indenture shall control.
The Securities are general obligations of the Company.
5. Redemption.
Optional Redemption. The Securities may be redeemed at the option of
the Company, in whole or in part, at any time and from time to time, on or after
May 15, 2003, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning May 15 of
each of the years set forth below:
116
A-6
Redemption
Year Price
---- -----
2003.................................... 105.500%
2004.................................... 103.667%
2005 ................................... 101.833%
2006 and thereafter .................... 100.000%
In addition, at any time or from time to time prior to May 15, 2001,
the Company may at its option redeem Securities with the net proceeds of one or
more Equity Offerings at a redemption price equal to 111% of the principal
amount thereof, plus accrued interest, if any, to the Redemption Date (subject
to the right of Holders of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date); provided that, immediately
after giving effect to such redemption, at least 75% of the aggregate principal
amount of the Securities (including any Additional Securities) remains
outstanding; provided further that any such redemption occurs within 90 days of
the date of closing of the related Equity Offering.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's last address as it appears in the Security Register.
Securities in original denominations larger than $1,000 may be redeemed in part
in integral multiples of $1,000. On and after the Redemption Date, interest
ceases to accrue on Securities or portions of Securities called for redemption,
unless the Company defaults in the payment of the Redemption Price.
6. Repurchase upon a Change in Control and Asset Sales.
(a) Upon the occurrence of a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Securities at a
redemption price of 101% of the principal amount thereof, plus accrued interest,
if any, to the date of purchase and (b) upon Asset Sales, the Company may be
obligated to make offers to purchase Securities with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued interest, if any, to the date of purchase.
7. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons, in
denominations of $1,000 and multiples of $1,000 in excess thereof. A Holder may
register the transfer or exchange of Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay
117
A-7
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer or exchange of any Securities selected for
redemption (except the unredeemed portion of any Security being redeemed in
part). Also, it need not register the transfer or exchange of any Securities for
a period of 15 days before a selection of Securities to be redeemed is made.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Security for all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of, premium, if any, and accrued interest on the
Securities to redemption or maturity, the Company will be discharged from the
Indenture and the Securities, except in certain circumstances for certain
sections thereof.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Securities then Outstanding, and
any existing default or compliance with any provision may be waived with the
consent of the Holders of a majority in aggregate principal amount of the
Securities then Outstanding. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency and make any
change that does not materially adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) additional
Debt; (ii) Restricted Payments;
118
A-8
(iii) certain Asset Sales; (iv) transactions with Affiliates; (v) restrictions
on dividends and other payments affecting Restricted Subsidiaries; (vi)
issuances and sale of Capital Stock of Restricted Subsidiaries; (vii)
designation of Unrestricted Subsidiaries; (viii) limitations on Liens; and (ix)
merger, consolidation and certain transfers of assets. Within 60 days after the
end of each fiscal year, the Company must report to the Trustee on compliance
with such limitations.
13. Successor Persons.
When a successor Person or other entity assumes all the obligations
of its predecessor under the Securities and the Indenture, the predecessor
Person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Securities then Outstanding may declare all the Securities to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Securities automatically become immediately due and payable. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of at least
a majority in principal amount of the Securities then Outstanding may direct the
Trustee in its exercise of any trust or power.
15. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may make loans to,
accept deposits from, perform services for, and otherwise deal with, the Company
and its Affiliates as if it were not the Trustee.
16. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN
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A-9
(= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
18. Governing Law.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Tri-State
Outdoor Media Group, Inc., 0000 Xxxxxxx 00 Xxxxx, Xxxxxx, Xxxxxxx, Attention:
President.
120
A-10
[FORM OF TRANSFER NOTICE]
Tri-State Outdoor Media Group, Inc.
11% Senior Notes due 2008
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
UNLEGENDED OFFSHORE GLOBAL SECURITIES AND
UNLEGENDED OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date the Shelf Registration Statement
is declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Security and the
Indenture.
121
A-11
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
Date: ____________________ _________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ___________________________________
NOTICE: To be executed by an executive
officer, general partner, trustee or similar
representative.
122
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant
to Section 1012 or Section 1013 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 1012 or Section 1013 of the Indenture, state the
amount (in original principal amount) below:
$_____________________.
Date:
Your Signature: ________________________________
(Sign exactly as your name appears on the other side of this
Security)
Signature Guarantee: ____________________________
(Signature must be guaranteed by a member of the New York
Stock Exchange or a commercial bank or trust company)
123
Exhibit B
Form of Certificate
to Be Delivered upon
Termination of Restricted Period
On or after July 1, 1998
Tri-State Outdoor Media Group, Inc.
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx
c/o
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Office,
Corporate Finance Department
Re: Tri-State Outdoor Media Group, Inc. (the "Company") 11% Senior
Notes due 2008 (the "Notes")
Ladies and Gentlemen:
This letter relates to $________ principal amount of Notes
represented by the temporary global note certificate (the "Temporary
Certificate"). Pursuant to Section 201 of the Indenture dated as of May 15, 1998
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Temporary
Certificate and (2) we are a person outside the United States to whom the Notes
could be transferred in accordance with Rule 904 of Regulation S promulgated
under the U.S. Securities Act of 1933, as amended. Accordingly, the Company and
the Trustee are hereby requested to issue a Certificated Note representing the
undersigned's interest in the principal amount of Notes represented by the
Temporary Certificate, all in the manner provided by the Indenture.
124
B-2
The Trustee and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Xxxxxx]
By:____________________________________
Authorized Signature
125
Exhibit C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
-------------------, ----
Tri-State Outdoor Media Group, Inc.
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx
c/o
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Office,
Corporate Finance Department
Re: Tri-State Outdoor Media Group, Inc. (the "Company") 11% Senior
Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $------------ aggregate
principal amount of the Notes:
1. We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act"), or an entity in which all of the
equity owners are accredited investors within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an
"Institutional Accredited Investor");
(ii) any purchase of the Notes by us will be for our own
account or for the account of one or more other Institutional
Accredited Investors;
126
C-2
(iii) in the event that we purchase any of the Notes, we will
acquire Notes having a minimum purchase price of not less than
$100,000 for our own account or for any separate account for which
we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and
risks of purchasing the Notes;
(v) we are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United
States or any other applicable jurisdictions, provided that the
disposition of our property and the property of any accounts for
which we are acting as fiduciary shall remain at all times within
our control; and
(vi) we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to
purchase the Notes.
2. We understand that the Notes are being offered in a transaction
not involving any public offering within the meaning of the Securities Act
and that the Notes have not been registered under the Securities Act, and
we agree, on our own behalf and on behalf of each account for which we
acquire any Notes, that such Notes may be offered, resold, pledged or
otherwise transferred only (i) to a person whom we reasonably believe to
be a qualified institutional buyer (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A, in
a transaction meeting the requirements of Rule 144 under the Securities
Act or in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel
if the Company so requests), (ii) to the Company or (iii) pursuant to an
effective registration statement under the Securities Act, and, in each
case, in accordance with any applicable securities laws of any State of
the United States or any other applicable jurisdiction. We understand that
the registrar and transfer agent will not be required to accept for
registration of transfer any Notes, except upon presentation of evidence
satisfactory to the Company as applicable, that the foregoing restrictions
on transfer have been complied with. We further understand that the Notes
will be in the form of definitive physical certificates and that any such
certificates will bear a legend reflecting the substance of this
paragraph.
127
C-3
3. The Trustee and the Company are entitled to rely upon this letter
and the Trustee and the Company are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered
hereby.
Very truly yours,
By:
(NAME OF PURCHASER)
Date:
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
128
Exhibit D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------, ---
Tri-State Outdoor Media Group, Inc.
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx
c/o
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Office,
Corporate Finance Department
Re: Tri-State Outdoor Media Group, Inc. (the "Company") 11% Senior
Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $------------ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
129
D-2
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(2) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(2) or Rule 904(c)(1), as the case may be.
The Trustee and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_________________________________
Authorized Signature
