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EXHIBIT 4.1
CONFORMED COPY
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INDENTURE
Dated as of July 29, 1998
Among
CLASSIC COMMUNICATIONS, INC., as Issuer,
and
BANK ONE, N.A., as Trustee
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$114,000,000 in Aggregate Principal Amount at Maturity
13 1/4% Senior Discount Notes due 2009
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions...................................................................1
SECTION 1.02 Other Definitions. ..........................................................21
SECTION 1.03 Incorporation by Reference of Trust Indenture Act............................22
SECTION 1.04 Rules of Construction........................................................22
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating..............................................................23
SECTION 2.02 Execution and Authentication.................................................23
SECTION 2.03 Registrar; Paying Agent; Depositary..........................................24
SECTION 2.04 Paying Agent to Hold Money in Trust..........................................25
SECTION 2.05 Securityholder Lists.........................................................25
SECTION 2.06 Transfer and Exchange........................................................25
SECTION 2.07 Replacement Securities.......................................................26
SECTION 2.08 Outstanding Securities.......................................................26
SECTION 2.09 Treasury Securities..........................................................27
SECTION 2.10 Temporary Securities.........................................................27
SECTION 2.11 Cancellation.................................................................27
SECTION 2.12 Defaulted Interest...........................................................28
SECTION 2.13 Book-Entry Provisions for Global Securities..................................28
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee...........................................................29
SECTION 3.02 Selection of Securities to Be Redeemed.......................................30
SECTION 3.03 Notice of Redemption.........................................................30
SECTION 3.04 Effect of Notice of Redemption...............................................31
SECTION 3.05 Deposit of Redemption Price..................................................31
SECTION 3.06 Securities Redeemed in Part..................................................31
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities........................................................32
SECTION 4.02 Maintenance of Office or Agency..............................................32
SECTION 4.03 Limitation on Transactions with Affiliates...................................33
SECTION 4.04 Limitation on Indebtedness...................................................34
SECTION 4.05 Disposition of Proceeds of Asset Sales.......................................36
SECTION 4.06 Limitation on Restricted Payments............................................38
SECTION 4.07 Corporate Existence..........................................................40
SECTION 4.08 Payment of Taxes and Other Claims............................................40
SECTION 4.09 Notice of Defaults...........................................................40
SECTION 4.10 Maintenance of Properties....................................................41
SECTION 4.11 Compliance Certificate.......................................................41
SECTION 4.12 Provision of Financial Information...........................................41
SECTION 4.13 Waiver of Stay, Extension or Usury Laws......................................42
SECTION 4.14 Change of Control............................................................42
SECTION 4.15 Calculation of Original Issue Discount.......................................44
SECTION 4.16 Limitations on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries............................................44
SECTION 4.17 Designation of Unrestricted Subsidiaries.....................................45
SECTION 4.18 Limitation on Liens..........................................................46
SECTION 4.19 Limitation on Guarantees of Certain Indebtedness.............................47
SECTION 4.20 Limitation on Sale or Issuance of Capital Stock of Restricted
Subsidiaries.................................................................48
SECTION 4.21 Limitation on Sale/Leaseback Transactions....................................48
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01 Merger, Sale of Assets, etc..................................................49
SECTION 5.02 Successor Corporation Substituted............................................49
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default............................................................49
SECTION 6.02 Acceleration.................................................................52
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SECTION 6.03 Other Remedies....................................53
SECTION 6.04 Waiver of Past Default............................53
SECTION 6.05 Control by Majority...............................54
SECTION 6.06 Limitation on Suits...............................54
SECTION 6.07 Rights of Holders To Receive Payment..............55
SECTION 6.08 Collection Suit by Trustee........................55
SECTION 6.09 Trustee May File Proofs of Claim..................55
SECTION 6.10 Priorities........................................56
SECTION 6.11 Undertaking for Costs.............................56
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.................................56
SECTION 7.02 Rights of Trustee.................................58
SECTION 7.03 Individual Rights of Trustee......................59
SECTION 7.04 Trustee's Disclaimer..............................60
SECTION 7.05 Notice of Defaults................................60
SECTION 7.06 Reports by Trustee to Holders.....................60
SECTION 7.07 Compensation and Indemnity........................61
SECTION 7.08 Replacement of Trustee............................62
SECTION 7.09 Successor Trustee by Merger, etc..................63
SECTION 7.10 Eligibility; Disqualification.....................63
SECTION 7.11 Preferential Collection of Claims Against Issuer..64
ARTICLE EIGHT
[INTENTIONALLY OMITTED]
SECTION 8.01 [Intentionally Omitted.]..........................64
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance and Covenant Defeasance................64
SECTION 9.02 Application of Trust Money........................66
SECTION 9.03 Repayment to Issuer...............................66
SECTION 9.04 Reinstatement.....................................66
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ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 Without Consent of Holders...................................................67
SECTION 10.02 With Consent of Holders......................................................68
SECTION 10.03 Compliance with Trust Indenture Act..........................................69
SECTION 10.04 Effect of Consents...........................................................69
SECTION 10.05 Notation on or Exchange of Securities........................................70
SECTION 10.06 Trustee to Sign Amendments, etc..............................................70
ARTICLE ELEVEN
[INTENTIONALLY OMITTED]
SECTION 11.01 [Intentionally Omitted.].....................................................70
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
SECTION 12.01 [Intentionally Omitted.].....................................................71
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.................................................71
SECTION 13.02 Notices......................................................................71
SECTION 13.03 Communications by Holders with Other Holders.................................73
SECTION 13.04 Certificate and Opinion as to Conditions Precedent...........................73
SECTION 13.05 Statements Required in Certificate or Opinion................................73
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar....................................74
SECTION 13.07 Governing Law................................................................74
SECTION 13.08 No Recourse Against Others...................................................74
SECTION 13.09 Successors...................................................................74
SECTION 13.10 Counterpart Originals........................................................74
SECTION 13.11 Severability.................................................................74
SECTION 13.12 No Adverse Interpretation of Other Agreements................................74
SECTION 13.13 Legal Holidays...............................................................75
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SIGNATURES.....................................................................................76
EXHIBIT A - Form of Security A-1
EXHIBIT B - Form of Legends for Securities and
Schedule for Exchanges of Global
Security B-1
APPENDIX - Subsidiary Guarantors
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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INDENTURE dated as of July 29, 1998, between CLASSIC COMMUNICATIONS,
INC., a Delaware corporation (the "Issuer"), and BANK ONE, N.A., a national
banking association, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Issuer's 13 1/4%
Senior Discount Notes due 2009 (the "Initial Securities") and, if and when
issued in exchange for Initial Securities as provided in the Registration Rights
Agreement dated as of the date hereof between the Issuer, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Xxxxxxx, Sachs & Co. (the "Registration Rights
Agreement"), the Issuer's 13 1/4% Senior Discount Exchange Notes due 2009,
Series B (the "Exchange Securities," together with the Initial Securities, the
"Securities").
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Accreted Value" means with respect to any Security, as of any
specified date on or prior to August 1, 2003, the amount provided below for each
$1,000 principal amount at maturity of the Securities:
(i) if the specified date occurs on one of the following dates
after the Issue Date (each a "Semiannual Accrual Date"), the Accreted
Value will equal the amount set forth below for such Semiannual Accrual
Date:
Semiannual Accrual Date Accreted Value
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July 29, 1998.................................................................$526.14
August 1, 1998................................................................$526.85
February 1, 1999..............................................................$561.75
August 1, 1999................................................................$598.97
February 1, 2000..............................................................$638.65
August 1, 2000................................................................$680.96
February 1, 2001..............................................................$726.08
August 1, 2001................................................................$774.18
February 1, 2002..............................................................$825.47
August 1, 2002................................................................$880.16
February 1, 2003..............................................................$938.47
August 1, 2003..............................................................$1,000.00
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(ii) if the specified date occurs before February 1, 1999, the
Accreted Value will equal the sum of (a) $526.14 and (b) an amount
equal to the product of (1) the Accreted Value on February 1, 1999 less
$526.14 multiplied by (2) a fraction, the numerator of which is the
number of days from the issue date to the specified date, using a
360-day year of twelve 30-day months, and the denominator of which is
the number of days from the issue date to the first Semiannual Accrual
Date, using a 360- day year of twelve 30-day months; or
(iii) if the specified date occurs between two Semiannual
Accrual Dates, the Accreted Value will equal the sum of (a) the
Accreted Value for the Semiannual Accrual Date immediately preceding
such specified date and (b) an amount equal to the product of (1) the
Accreted Value for the immediately following Semiannual Accrual Date
less the Accreted Value for the immediately preceding Semiannual
Accrual Date multiplied by (2) a fraction, the numerator of which is
the number of days from the immediately preceding Semiannual Accrual
Date to the specified date, using a 360-day year of twelve 30-day
months.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition from such Person and not incurred in connection with, or in
anticipation of, such Person becoming a Restricted Subsidiary or such Asset
Acquisition.
"Acquired Person" means, with respect to any specified Person, any
other Person which merges with or into or becomes a Subsidiary of such specified
Person.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Issuer; (ii) any spouse, immediate family member or other
relative who has the same principal residence as any Person described in clause
(i) above; (iii) any trust in which any such Persons described in clauses (i)
and (ii) above has a beneficial interest; and (iv) any corporation or other
organization of which any such Persons described above collectively owns 5% or
more of the equity of such entity. For purposes of this definition, "control"
(including, with correlative meaning, the terms "controlling," "controlled by"
and "under common control with") when used with respect to any specified Person
includes the direct or indirect beneficial ownership of more than 5% of the
voting securities of such Person or the power to direct or cause the direction
of the management and policies of such Person whether by contract or otherwise.
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"Agent" means any Registrar, Paying Agent or co-Registrar. See Section
2.03.
"Applicable Premium" means, with respect to a Security, the greater of
(i) 1.0% of the then outstanding principal amount of such Security and (ii) the
excess of (a) the present value of the required interest and principal payments
due on such Security to the first optional redemption date (assuming all
outstanding Securities were called for redemption on such date) or to the final
maturity date of the Securities at the option of the Issuer, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (b) the then
outstanding principal amount of such Security.
"Asset Acquisition" means (i) an Investment by the Issuer or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be consolidated or merged with or into
the Issuer or any Restricted Subsidiary, or (ii) any acquisition by the Issuer
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of an operating unit, a division or line of business of such
Person or which is otherwise outside of the ordinary course of business.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease (that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale leaseback transaction) to
any Person other than the Issuer or any Wholly Owned Restricted Subsidiary, in
one transaction or a series of related transactions, of (i) any Equity Interest
of any Restricted Subsidiary, (ii) any material license, franchise or other
authorization of the Issuer or any Restricted Subsidiary, (iii) any assets of
the Issuer or any Restricted Subsidiary which constitute substantially all of an
operating unit, a division or a line of business of the Issuer or any Restricted
Subsidiary or (iv) any other property or asset of the Issuer or any Restricted
Subsidiary outside of the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include (i) any transaction
consummated in compliance with Section 4.14 or 5.01 and the creation of any Lien
not prohibited under Section 4.18, (ii) the sale of property or equipment that
has become worn out, obsolete or damaged or otherwise unsuitable for use in
connection with the business of the Issuer or any Restricted Subsidiary, as the
case may be, (iii) any transaction consummated in compliance with Section 4.06,
and (iv) sales, transfers or other disposition of assets with a fair market
value not in excess of $1.0 million in any transaction or series of
transactions.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Securities, compounded annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).
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"Board of Directors" means (i) in the case of a Person that is a
partnership, the board of directors of such Person's corporate general partner
(or if such general partner is itself a partnership, the board of directors of
such general partner's corporate general partner), (ii) in the case of a Person
that is a corporation, the board of directors of such Person and (iii) in the
case of any other Person, the board of directors, management committee or
similar governing body or any authorized committee thereof responsible for the
management of the business and affairs of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the City of New York
are authorized or obligated by law, resolution or executive order to close.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles
and the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with generally accepted accounting
principles consistently applied.
"Cash Equivalents" means (i) United States dollars; (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition; (iii) certificates of deposit
and Eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any domestic commercial bank that
is a member of the Federal Reserve System having capital and surplus in excess
of $500.0 million; (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii) and
(iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above; (v) commercial paper having a
rating of at least P-1 from Moody's or a rating of at least A-1 from S&P; and
(vi) money market mutual or similar funds having assets in excess of $100.0
million, at least 95% of the assets of which are comprised of assets specified
in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following
events: (i) any Person (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, including any group acting for the purpose of acquiring, holding
or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other than one or more Permitted Holders, is or
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becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that Person shall be deemed to have "beneficial ownership"
of all shares that any such Person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time, upon the happening
of an event or otherwise), directly or indirectly, of more than 35% of the total
voting power of the then outstanding Voting Equity Interest of the Issuer; (ii)
the Issuer consolidates with, or merges with or into, another Person (other than
a Wholly Owned Restricted Subsidiary) or the Issuer or any of its Subsidiaries
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Issuer and its Subsidiaries (determined
on a consolidated basis) to any Person (other than the Issuer or any Wholly
Owned Restricted Subsidiary); (iii) the Issuer is liquidated or dissolved or
adopts a plan of liquidation or dissolution (whether or not otherwise in
compliance with the provisions of this Indenture); or (iv) a majority of the
members of the Board of Directors of the Issuer shall consist of Persons who are
not Continuing Members.
"Consolidated Income Tax Expense" means, with respect to the Issuer for
any period, the provision for federal, state, local and foreign income taxes
payable by the Issuer and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied.
"Consolidated Interest Expense" means, with respect to the Issuer and
the Restricted Subsidiaries for any period, without duplication, the sum of (i)
the interest expense of the Issuer and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with generally
accepted accounting principles consistently applied, including, without
limitation, amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation and after taking into
account the effect of elections made under any Hedging Agreements, however
denominated, with respect to such Indebtedness; and (ii) the interest component
of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by the Issuer and the Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied. For purposes of this definition,
interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Issuer to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with generally
accepted accounting principles consistently applied.
"Consolidated Net Income" means, with respect to any period, the net
income (loss) of the Issuer and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied, adjusted, to the extent included in
calculating such net income (loss), by excluding, without duplication, (i) all
extraordinary, unusual or nonrecurring items of income or expense and of gains
or losses and all
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gains and losses from the sale or other disposition of assets out of the
ordinary course of business (net of taxes, fees and expenses relating to the
transaction giving rise thereto) for such period; (ii) that portion of such net
income (loss) derived from or in respect of investments in Persons other than
any Restricted Subsidiary, except to the extent actually received in cash by the
Issuer or any Restricted Subsidiary; (iii) the portion of such net income (loss)
allocable to minority interests in unconsolidated Persons for such period,
except to the extent actually received in cash by the Issuer or any Restricted
Subsidiary; (iv) net income (loss) of any other Person combined with the Issuer
or any Restricted Subsidiary on a "pooling of interests" basis attributable to
any period prior to the date of combination; (v) net income (loss) of any
Restricted Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by that Restricted Subsidiary of that net income (loss)
is not at the date of determination permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule of governmental regulation applicable to that Restricted
Subsidiary or the holders of its Equity Interests; (vi) the cumulative effect of
a change in accounting principles after the date of this Indenture; and (vii)
net income (loss) attributable to discontinued operations determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied.
"Consolidated Net Worth" with respect to any Person means the equity of
the holders of Qualified Equity Interests of such Person and its Restricted
Subsidiaries, as reflected in a balance sheet of such Person determined on a
consolidated basis and in accordance with GAAP.
"Consolidated Total Indebtedness" means, as at any date of
determination, an amount equal to the aggregate amount of all outstanding
Indebtedness of the Issuer and the Restricted Subsidiaries outstanding as of
such date of determination (including the liquidation value of all Disqualified
Equity Interests), less the obligations of the Issuer or any Restricted
Subsidiary under any Hedging Agreement as of such date of determination that
would appear as a liability on the balance sheet of such Person, in each case
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied.
"Continuing Members" means, as of the date of determination, any Person
who (i) was a member of the Board of Directors of the Issuer on the date of this
Indenture, (ii) was nominated for election or elected to the Board of Directors
of the Issuer with the affirmative vote of a majority of the Continuing Members
who were members of the Board of Directors of the Issuer at the time of such
nomination or election or (iii) is a representative of, or was approved by, a
Permitted Holder.
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"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may give
notice to the Issuer.
"Cumulative Credit" means the sum of (i) the aggregate Net Cash
Proceeds received by the Issuer from the issue or sale (other than to a
Subsidiary) of Equity Interests (other than Disqualified Equity Interests) of
the Issuer on or after July 29, 1998, plus (ii) the principal amount (or, if
less, accreted amount determined in accordance with generally accepted
accounting principles) of any Indebtedness, of the Issuer which has been
converted into or exchanged for Equity Interests of the Issuer on or after July
29, 1998, plus (iii) cumulative Operating Cash Flow on or after July 29, 1998,
to the end of the fiscal quarter immediately preceding the date of the proposed
Restricted Payment, or, if cumulative Operating Cash Flow for such period is
negative, minus the amount by which cumulative Operating Cash Flow is less than
zero, plus (iv) to the extent not already included in Operating Cash Flow, if
any Investment constituting a Restricted Payment that was made after the date of
this Indenture is sold or otherwise liquidated or repaid the initial dividend
amount of such Restricted Payment (less the cost of disposition, if any) on the
date of such sale, liquidation or repayment, as determined in good faith by the
Board of Directors.
"Cumulative Interest Expense" means the aggregate amount of
Consolidated Interest Expense paid or accrued of the Issuer and the Restricted
Subsidiaries on or after July 29, 1998, to the end of the fiscal quarter
immediately preceding the proposed Restricted Payment.
"Debt to Operating Cash Flow Ratio" means the ratio of (i) the
Consolidated Total Indebtedness as of the date of calculation (the
"Determination Date") to (ii) four times the Operating Cash Flow for the latest
three months for which financial information is available immediately preceding
such Determination Date (the "Measurement Period"). For purposes of calculating
Operating Cash Flow for the Measurement Period immediately prior to the relevant
Determination Date, (I) any Person that is a Restricted Subsidiary on the
Determination Date (or would become a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Operating Cash Flow) will be deemed to have been a
Restricted Subsidiary at all times during the Measurement Period; (II) any
Person that is not a Restricted Subsidiary on such Determination Date (or would
cease to be a Restricted Subsidiary on such Determination Date in connection
with the transaction that requires the determination of such Operating Cash
Flow) will be deemed not to have been a Restricted Subsidiary at any time during
such Measurement Period; and (III) if the Issuer or any Restricted Subsidiary
shall have in any manner (x) acquired (including through an Asset Acquisition or
the commencement of activities constituting such operating business) or (y)
disposed of (including by way of an Asset Sale or the termination or
discontinuance of activities constituting such operating business) any operating
business during such Measurement Period or after the end of
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such period and on or prior to such Determination Date, such calculation will be
made on a pro forma basis in accordance with generally accepted accounting
principles consistently applied, as if, in the case of an Asset Acquisition or
the commencement of activities constituting such operating business, all such
transactions had been consummated on the first day of such Measurement Period,
and, in the case of an Asset Sale or termination or discontinuance of activities
constituting such operating business, all such transactions had been consummated
prior to the first day of such Measurement Period.
"Default" means any event that is or with the passing of time or giving
of notice or both would be an Event of Default.
"Depositary" means, with respect to Securities issued in the form of
one or more Global Securities, DTC or another Person designated as Depositary by
the Issuer, which Person must be a clearing agency registered under Section 17A
of the Exchange Act.
"Designation" has the meaning set forth in Section 4.17.
"Designation Amount" has the meaning set forth in Section 4.17.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interest" means, with respect to any Person, any
Equity Interest which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, or is exchangeable
into Indebtedness or Disqualified Equity Interest, on or prior to the earlier of
the maturity date of the Securities or the date on which no Securities remain
outstanding.
"DTC" means The Depository Trust Company.
"Equity Interest" in any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited, and
membership interests in such Person, including any Preferred Stock.
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"Equity Offering" means an underwritten public offering by the Issuer
for cash (with gross proceeds to the Issuer in an amount not less than $25.0
million) of its common stock pursuant to the Securities Act of 1933, as amended,
registration statement (not including Forms S-4 or S-8).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Securities and Exchange
Commission thereunder.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at the
date of determination and which are consistently applied for all applicable
periods.
"Global Security" means a Security evidencing all or part of the
Securities issued to the Depositary in accordance with Section 2.13 and bearing
the legend described in Exhibit B.
"Guarantee" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (ii) 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 limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
"Hedging Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement
providing for the transfer or mitigation of interest rate risks either generally
or under specific contingencies.
"Hedging Obligation" of any Person means the obligations of such Person
pursuant to any Hedging Agreement.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the books of the Registrar or any co-Registrar.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the
16
-10-
balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring" shall
have meanings correlative to the foregoing). Indebtedness of any Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary (or is merged into or consolidates with the Issuer or any Restricted
Subsidiary), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary (or being
merged into or consolidated with the Issuer or any Restricted Subsidiary), shall
be deemed Incurred at the time any such Person becomes a Restricted Subsidiary
or merges into or consolidates with the Issuer or any Restricted Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(ii) all Capitalized Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into by such
Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (i) through (iii)
above) entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit);
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Equity
Interest or, with respect to any Subsidiary of such Person, the liquidation
preference with respect to, any Preferred Stock (but excluding, in each case,
any accrued dividends);
17
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(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee;
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and
(viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Investment" in any Person means, directly or indirectly, any advance,
loan or other extension of credit (including by means of a guarantee) or capital
contribution to (by means of transfers of property to others, payments for
property or services for the account or use of others or otherwise) such Person,
the acquisition, by purchase or otherwise, of any stock, bonds, securities,
debentures, partnership, membership or joint venture interests or other
securities or other evidence of beneficial interest of any Person, and shall
include the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary. If the Issuer or any Restricted Subsidiary sells or otherwise
disposes of any Voting Equity Interest of any direct or indirect Restricted
Subsidiary such that, after giving effect to such sale or disposition, the
Issuer no longer owns, directly or indirectly, greater than 50% of the
outstanding Voting Equity Interests of such Restricted Subsidiary, the Issuer
shall be deemed to have made an
18
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Investment on the date of any such sale or disposition equal to the fair market
value of the Voting Equity Interests of such former Restricted Subsidiary not
sold or disposed of.
"Investment Banking Fee" means pursuant to an agreement between J.
Xxxxxxx Xxxxxxx and Xxxxxx X. Seach, on the one hand, and the Issuer, on the
other hand, a fee to be paid by the Issuer to such individuals (i) on the date
of this Indenture in the aggregate amount of $550,000 and (ii) thereafter from
time to time in connection with the consummation of acquisitions or financings
by the Issuer in an amount equal to 1.0% of the purchase price paid for such
acquisitions.
"Issue Date" means the original issue date of the Initial Securities,
July 29, 1998.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of each of the Issuer by its respective Chairman of the Board
of Directors, Vice Chairman of the Board of Directors, President or a Vice
President, and by its respective Treasurer, an Assistant Treasurer, Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Lien" means any mortgage, pledge, lien, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, any lease
in the nature thereof or any agreement to give a security interest).
"Maturity Date" means the date, which is set forth on the face of the
Securities, on which the Securities will mature.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
rating agency.
"Net Available Cash" from an Asset Sale means cash payments received
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise and proceeds from the
sale or other disposition of any securities received as consideration, but only
as and when received, but excluding any other consideration received in the form
of assumption by the acquiring Person of Indebtedness or other obligations
relating to such properties or assets or received in any other non cash form)
therefrom, in each case net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes
19
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required to be paid or accrued as a liability under GAAP, as a consequence of
such Asset Sale, (ii) all payments made on any indebtedness which is secured by
any assets subject to such Asset Sale, in accordance with the terms of any Lien
upon or other security arrangement of any kind with respect to such assets, or
which must by its terms, or in order to obtain a necessary consent to such Asset
Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale,
(iii) all distributions and other payments required to be made to minority
interest holders in Restricted Subsidiaries or joint ventures as a result of
such Asset Sale and (iv) the deduction of appropriate amounts to be provided by
the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Sale and retained by the
Issuer or any Restricted Subsidiary after such Asset Sale.
"New Senior Credit Agreement" means the credit agreement dated as of
July 29, 1998, among Classic Cable, Inc., the lenders referred to therein, Union
Bank of California, N.A. and Xxxxxxx Sachs Credit Partners L.P., as co-arrangers
for such lenders, together with the related documents thereto (including,
without limitation, any guarantee agreements, pledge agreements and security
documents executed in connection therewith), in each case as such agreements may
be amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring such indebtedness
(provided any amendment, supplement, extension, refinancing, replacement or
restructuring is otherwise permitted under Sections 4.04, 4.05, 4.06, 4.15, 4.16
or 4.19), or adding subsidiaries of the Issuer as additional borrowers or
guarantors thereunder. Without limiting the generality of the foregoing, "New
Senior Credit Agreement" shall include all interest rate collars, caps, xxxxxx
and other interest rate protection agreements with lenders (or affiliates
thereof) party to the New Senior Credit Agreement which are permitted by Section
4.04(i) of this Indenture.
"Non-Recourse Indebtedness" means Indebtedness of a Person (i) as to
which neither the Issuer nor any of the Restricted Subsidiaries (other than such
Person or any Subsidiaries of such Person) (a) provides any guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise); and (ii) the incurrence of
which will not result in any recourse against any of the assets of either of the
Issuer or the Restricted Subsidiaries (other than to such Person or to any
Subsidiaries of such Person and other than to the Equity Interests in such
Restricted Subsidiary or an Unrestricted Subsidiary).
"Notes" means the 9 7/8 Senior Subordinated Notes due 2008 issued by
Classic Cable, Inc. pursuant to an indenture dated July 29, 1998.
20
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"Obligations" means any principal, interest (including, without
limitation, Post- Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board
of Directors, the President, any Vice President, the Chief Financial Officer,
the Treasurer, or the Secretary of such Person.
"Officer's Certificate" means a certificate signed by an Officer
complying with Sections 13.04 and 13.05.
"Operating Cash Flow" means, with respect to the Issuer and the
Restricted Subsidiaries on a consolidated basis, for any period, an amount equal
to the lesser of (a) the amount of cash dividends received by the Issuer from
Classic Cable, Inc., a Delaware corporation and Wholly Owned Subsidiary of the
Issuer, and (b) Consolidated Net Income for such period increased (without
duplication) by the sum of (i) Consolidated Income Tax Expense accrued for such
period to the extent deducted in determining Consolidated Net Income for such
period; (ii) Consolidated Interest Expense for such period to the extent
deducted in determining Consolidated Net Income for such period; and (iii)
depreciation, amortization and any other non-cash items for such period to the
extent deducted in determining Consolidated Net Income for such period (other
than any non-cash item which requires the accrual of, or a reserve for, cash
charges for any future period) of the Issuer and the Restricted Subsidiaries,
including, without limitation, amortization of capitalized debt issuance costs
for such period, all of the foregoing determined on a consolidated basis in
accordance with generally accepted accounting principles consistently applied,
and decreased by non-cash items to the extent they increased Consolidated Net
Income (including the partial or entire reversal of reserves taken in prior
periods) for such period provided, that with respect to the definition of Debt
to Operating Cash Flow only, Operating Cash Flow shall always have the meaning
ascribed in clause (b) above. For the purpose of this definition, the following
items shall, to the extent expensed in calculating Consolidated Net Income, be
added to Consolidated Net Income: (A) any amounts paid to employees of the
Issuer in respect of investment banking, advisory or transaction fees in
connection with acquisitions or financings of, or advisory services to, the
Issuer, in an amount not to exceed 1.5 percent of the fair market value of such
acquisition or the amount of such financing, and (B) cancellation of debt to any
employee of the Issuer in an aggregate principal amount not to exceed $200,000.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer or the Trustee.
21
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"Other Pari Passu Debt" means Indebtedness of the Issuer or any
Restricted Subsidiary that does not constitute Subordinated Obligations and is
not senior in right of payment to the Securities.
"Other Permitted Liens" means (i) Liens imposed by law, such as
carriers', warehousemen's and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and for which an
appropriate reserve or provision shall have been made in accordance with
generally accepted accounting principles consistently applied; (ii) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and for which an appropriate reserve or
provision shall have been made in accordance with generally accepted accounting
principles consistently applied; (iii) easements, rights of way, and other
restrictions on use of property or minor imperfections of title that in the
aggregate are not material in amount and do not in any case materially detract
from the property subject thereto or interfere with the ordinary conduct of the
business of the Issuer or its Subsidiaries; (iv) Liens related to Capitalized
Lease Obligations, mortgage financings or purchase money obligations (including
refinancings thereof), in each case incurred for the purpose of financing all or
any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Issuer or any
Restricted Subsidiary or a Related Business, provided that any such Lien
encumbers only the asset or assets so financed, purchased, constructed or
improved; (v) Liens resulting from the pledge by the Issuer of Equity Interests
in any Subsidiary in connection with the New Senior Credit Agreement; (vi) Liens
resulting from the pledge by the Issuer of Equity Interests in an Unrestricted
Subsidiary in any circumstance where recourse to the Issuer is limited to the
value of the Equity interests so pledged; (vi) Liens incurred or deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (vii) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds, deposits to secure the performance of bids, trade contracts, government
contracts, leases or licenses or other obligations of a like nature incurred in
the ordinary course of business (including without limitation, landlord Liens on
leased properties); (viii) leases or subleases granted to third Persons not
interfering with the ordinary course of business of the Issuer; (ix) deposits
made in the ordinary course of business to secure liability to insurance
carriers; (x) Liens securing reimbursement obligations with respect to letters
of credit which encumber documents and other property relating to such letters
of credit and the products and proceeds thereof; (xi) Liens on the assets of the
Issuer to secure Hedging Agreements with respect to Indebtedness permitted by
this Indenture to be incurred; (xii) attachment or judgment
22
-16-
Liens not giving rise to a Default or an Event of Default; and (xiii) any
interest or title of a lessor under any capital lease or operating lease.
"Permitted Holders" means Austin Ventures, L.P., BT Capital Partners,
Inc., NationsBank Capital Investors, J. Xxxxxxx Xxxxxxx and Xxxxxx X. Seach.
"Permitted Investments" means (i) Cash Equivalents; (ii) Investments in
prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (iii) the
extension of credit to vendors, suppliers and customers in the ordinary course
of business; (iv) Investments existing as of the date of this Indenture, and any
amendment, modification, extension or renewal thereof to the extent such
amendment, modification, extension or renewal does not require the Issuer or any
Restricted Subsidiary to make any additional cash or non-cash payments or
provide additional services in connection therewith; (v) Hedging Agreements;
(vi) any Investment for which the sole consideration provided is Equity
Interests of the Issuer; (vii) any Investment consisting of a guarantee
permitted under clause (e) of the second paragraph of Section 4.04; (viii)
Investments in the Issuer, in any Wholly Owned Restricted Subsidiary or any
Person that, as a result of or in connection with such Investment, becomes a
Wholly Owned Restricted Subsidiary or is merged with or into or consolidated
with the Issuer or a Wholly Owned Restricted Subsidiary, provided, however, that
such Person's primary business is a Related Business; (ix) loans and advances to
officers, directors and employees of the Issuer and the Restricted Subsidiaries
for business-related travel expenses, moving expenses and other similar expenses
in each case incurred in the ordinary course of business not to exceed $1
million outstanding at any time; (x) any acquisition of assets solely in
exchange for the issuance of Equity Interests of the Issuer; and (xi) other
Investments made after the date of this Indenture, in addition to any Permitted
Investments described in clauses (i) through (x) above, in an aggregate amount
at any one time outstanding not to exceed $1.0 million.
"Person" means any individual, corporation, partnership, limited
liability Issuer, joint venture, association, joint stock Issuer, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"Preferred Stock," means, in any Person, an Equity Interest of any
class or classes, however designated, which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over Equity
Interests of any other class in such Person.
"Principal" of a debt security means the principal of the security
plus, when appropriate, the premium, if any, on the security.
23
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"Productive Assets" means assets of a kind used or useable by the
Issuer and the Restricted Subsidiaries in any Related Business and specifically
includes assets acquired through Asset Acquisitions (it being understood that
"assets" may include Equity Interests of a Person that owns such Productive
Assets, provided that after giving effect to such transaction, such Person would
be a Restricted Subsidiary).
"Purchase Money Indebtedness" means Indebtedness of the Issuer or any
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property,
provided that the aggregate principal amount of such Indebtedness does not
exceed the lesser of the fair market value of such property or such purchase
price or cost.
"Qualified Equity Interest" in any Person means any Equity Interest in
such Person other than any Disqualified Equity Interest.
"redemption date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed as Exhibit A.
"Reinvestment Date" means the date which is 365 days after the receipt
of any Net Available Cash from an Asset Sale.
"Related Business" means a cable television, media and communications,
telecommunications, internet service provider or data transmission business, and
businesses ancillary, complementary or reasonably related thereto.
"Restricted Subsidiary" means any Subsidiary of the Issuer other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Issuer or a Restricted Subsidiary
transfers such property to a Person and the Issuer or a Restricted Subsidiary
leases it back from such Person.
"SEC" means the Securities and Exchange Commission.
24
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"Securities" means the 13 1/4% Senior Discount Notes due 2009, as
amended or supplemented from time to time pursuant to the terms of this
Indenture, that are issued under this Indenture.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Semiannual Accrual Date" has the meaning ascribed under the definition
of Accreted Value.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including interest, whether or not allowable, accruing after the
filing of a petition initiating any proceeding under any state, federal or
foreign bankruptcy law) on any Indebtedness of the Issuer (other than as
otherwise provided in this definition), whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, and whether at any time
owing, actually or contingent, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (i) Indebtedness evidenced by
the Securities, (ii) Indebtedness that is subordinate or junior in right of
payment to any Indebtedness of the Issuer, (iii) Indebtedness which when
incurred and without respect to any election under Section 1111(b) of Xxxxx 00
Xxxxxx Xxxxxx Code, is without recourse to the Issuer, (iv) Indebtedness which
is represented by Redeemable Capital Stock, (v) any liability for foreign,
federal, state, local or other taxes owed or owing by the Issuer to the extent
such liability constitutes Indebtedness, (vi) Indebtedness of the Issuer to a
Subsidiary or any other Affiliate of the Issuer or any of such Affiliate's
Subsidiaries, (vii) to the extent it might constitute Indebtedness, amounts
owing for goods, materials or services purchased in the ordinary course of
business or consisting of trade accounts payable owed or owing by the Issuer,
and amounts owed by the Issuer for compensation to employees or services
rendered to the Issuer, (viii) that portion of any Indebtedness which at the
time of issuance is issued in violation of this Indenture and (ix) Indebtedness
evidenced by any guarantee of any Subordinated Indebtedness or Pari Passu
Indebtedness.
"Senior Representative" means an authorized representative of a holder
of Senior Indebtedness.
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw
Hill Company, Inc., or any successor rating agency.
25
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"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means 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.
"Strategic Equity Investment" means an investment in the Issuer by a
company which is primarily engaged in the media and communications industry or
the telecommunications industry and which has a market capitalization (if a
public company) on the date of such investment in the Issuer of more than $1.0
billion or, if not a public company, had total revenues of more than $5.0
billion during its previous fiscal year.
"Subordinated Obligations" means, with respect to the Issuer, any
Indebtedness of the Issuer which is expressly subordinated in right of payment
to the Securities.
"Subsidiary" means a Person the majority of whose voting stock,
membership interests or other Voting Equity Interests is or are owned by the
Issuer or a Subsidiary. Voting stock in a corporation includes Equity Interests
having voting power under ordinary circumstances to elect directors.
"Subsidiary Operating Cash Flow" means, with respect to any Subsidiary
for any period, the "Operating Cash Flow" of such Subsidiary and its
Subsidiaries for such period determined by utilizing all of the elements of the
definition of "Operating Cash Flow" in this Indenture, including the defined
terms used in such definition, consistently applied only to such Subsidiary and
its Subsidiaries on a consolidated basis for such period.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 10.03.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two business days prior to the date fixed
for redemption of the Securities following a Change of Control (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the then remaining Weighted Average
Life to Maturity of the Securities; provided, however, that if the Weighted
Average Life to Maturity of the Securities is not equal to the constant maturity
of a United States Treasury security for
26
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which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the Weighted Average Life to Maturity of the
Securities is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust department
(or any successor group of the Trustee) including any vice president, assistant
vice president, assistant secretary or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Unrestricted Subsidiary" means any Subsidiary of the Issuer (other
than a Subsidiary Guarantor) designated as such pursuant to and in compliance
with Section 4.17. Any such designation may be revoked by a resolution of the
Board of Directors of the Issuer delivered to the Trustee, subject to the
provisions of Section 4.17.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary (i) as to which neither the
Issuer nor any Restricted Subsidiary is directly or indirectly liable (by virtue
of the Issuer or any such Restricted Subsidiary being the primary obligor on,
guarantor of, or otherwise liable in any respect to, such Indebtedness, except
guaranteed debt of the Issuer or any Restricted Subsidiary to any Affiliate, in
which case (unless the incurrence of such guaranteed debt resulted in a
Restricted Payment at the time of incurrence) the Issuer shall be deemed to have
made a Restricted Payment equal to the principal amount of any such Indebtedness
to the extent guaranteed at the time such Affiliate is designated an
Unrestricted Subsidiary and (ii) which, upon the occurrence of a default with
respect thereto, does not result in, or permit any holder of any Indebtedness of
the Issuer or any Subsidiary to declare, a default on such Indebtedness of the
Issuer or any Subsidiary or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity; provided that notwithstanding the
foregoing any Unrestricted Subsidiary may guarantee the Securities.
27
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"Voting Equity Interests" means Equity Interests in any Person with
voting power under ordinary circumstances entitling the holders thereof to elect
the board of directors, board of managers or other governing body of such
Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding aggregate
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary of
which all of the outstanding Equity Interests (other than Equity Interests
constituting directors' qualifying shares to the extent mandated by applicable
law) are owned by the Issuer or by one or more Wholly Owned Restricted
Subsidiaries or by the Issuer and one or more Wholly Owned Restricted
Subsidiaries. Notwithstanding the foregoing, so long as Universal Cable
Holdings, Inc. holds at least 75% of the issued and outstanding shares of stock
of Universal Cable Communications Inc., Universal Cable of Beaver, Oklahoma,
Inc. and Universal Cable Midwest, Inc., each of such entities shall be deemed to
be a Wholly Owned Subsidiary.
SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.03
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Other Indebtedness" 4.19
"Participants" 2.13
"Paying Agent" 2.03
"Permitted Indebtedness" 4.04
"Physical Securities" 2.13
"Registrar" 2.03
"Required Filing Dates" 4.12
"Restricted Payment" 4.06
"Revocation" 4.17
28
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" or "obligors" on the indenture securities means the Issuer or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect from
time to time, and any other reference in this Indenture to "generally accepted
accounting principles" refers to GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
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(f) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.
The Securities and the Trustee's certificates of authentication shall
be substantially in the form of Exhibit A. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. Any
notations, legends or endorsements not contained in the form of Security
contained in Exhibit A shall be delivered in writing to the Trustee. The Issuer
shall approve the form of the Securities and any notation, legend or endorsement
on them. Each Security shall be dated the date of its authentication.
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.
SECTION 2.02 Execution and Authentication.
An Officer shall sign the Securities for the Issuer by facsimile
signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount at maturity of up to $114,000,000, upon a written
order signed by an Officer of the Issuer. The order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount at maturity of
Securities outstanding at any time may not exceed $114,000,000 except as
provided in Section 2.07.
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The Securities shall initially be issued in the form of one or more
permanent Global Securities, substantially in the form set forth in Exhibit A.
Global Securities shall be registered in the name of a nominee of the Depositary
and deposited with the Trustee, at its principal operations office in New York,
New York, in its capacity as Securities Custodian, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. Each Global Security
shall evidence such of the outstanding Securities as shall be specified therein
and each shall provide that it shall evidence the aggregate principal amount at
maturity of outstanding Securities from time to time endorsed thereon, and that
the aggregate principal amount at maturity of outstanding Securities represented
thereby may from time to time be reduced or increased, as applicable, to reflect
exchanges, redemptions, and other similar transactions. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the amount
of outstanding Securities represented thereby shall be made by the Trustee or
the Securities Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03 Registrar; Paying Agent; Depositary.
The Issuer shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Issuer may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Issuer shall notify the Trustee of
the name and address of any such Agent. If the Issuer fail to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with the provisions of Section 7.07.
The Issuer initially appoints the Trustee as Registrar and Paying
Agent. The Issuer shall give written notice to the Trustee in the event that the
Issuer decides to act as Registrar or Paying Agent.
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The Issuer initially appoints DTC to act as Depositary with respect to
any Global Securities and initially appoints the Trustee to act as Securities
Custodian with respect to any Global Securities.
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent to agree in writing to hold
in trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities
(whether such money has been paid to it by the Issuer or any other obligor on
the Securities), and the Issuer and the Paying Agent shall each notify the
Trustee of any default by the Issuer (or any other obligor on the Securities) in
making any such payment. If the Issuer or a Subsidiary of the Issuer acts as
Paying Agent, it shall segregate the money and hold it as a separate trust fund.
The Issuer at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon making such payment the Paying Agent
shall have no further liability for the money delivered to the Trustee.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06 Transfer and Exchange.
Subject to the provisions of Section 2.13, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount at maturity of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Securities. The date of
any Security issued pursuant to this Section 2.06 shall be the date of such
transfer or exchange. No service charge shall be made to the Securityholder for
any registration of transfer or exchange, but the Issuer may require from the
Securityholder payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar
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governmental charge payable upon exchanges pursuant to Sections 2.10, 3.06, 4.14
or 10.05, in which event the Issuer shall be responsible for the payment of such
taxes).
Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system (as described in Section 2.13)
maintained by the Depositary (or its agent), and that ownership of a beneficial
interest in the Global Security shall be required to be reflected in a book
entry.
SECTION 2.07 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Issuer shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. An indemnity bond in an amount
sufficient in the judgment of the Issuer and the Trustee to protect the Issuer,
the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced may be required by the Trustee or the Issuer. The Issuer
and the Trustee each may charge such Holder for its expenses in replacing such
Security.
If, after the delivery of such replacement Security, a bona fide
purchaser of the original Security in lieu of which such replacement Security
was issued presents for payment or registration such original Security, the
Trustee shall be entitled to recover such replacement Security from the person
to whom it was delivered or any person taking therefrom, except a bona fide
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Trustee in connection therewith.
Every replacement Security is an additional obligation of the Issuer.
SECTION 2.08 Outstanding Securities.
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
Except as provided in paragraph 5(b) of the Securities, a Security does not
cease to be outstanding because the Issuer or an Affiliate of the Issuer holds
the Security.
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If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Issuer, a Subsidiary of the Issuer
or an Affiliate of the Issuer) holds on a redemption date or Maturity Date money
sufficient to pay the principal of, and interest on Securities payable on that
date, then on and after that date such Securities cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Issuer, any Subsidiary Guarantor or any of their respective Affiliates
shall be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that a Trust Officer of the Trustee actually knows are so owned
shall be so disregarded.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuer consider appropriate for temporary Securities.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11 Cancellation.
The Issuer at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. Except as provided in Section 2.07, the
Issuer may not issue new Securities to replace, or reissue or resell, Securities
which the Issuer has redeemed, paid, purchased on the open market or otherwise,
or otherwise acquired or have been delivered to the Trustee for cancellation.
The Trustee (subject to the record-retention requirements of the Exchange Act)
may, but shall not be required to destroy canceled Securities.
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SECTION 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are Securityholders
on a subsequent special record date, and such term, as used in this Section 2.12
with respect to the payment of any defaulted interest, shall mean the fifteenth
day next preceding the date fixed by the Issuer for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Issuer shall mail to each Securityholder and to
the Trustee a notice that states such special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depositary ("Participants") 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 Issuer, the Trustee
and any agent of the Issuer or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for certificated Securities ("Physical Securities") in
accordance with the rules and procedures of the Depositary. In addition,
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary for
any Global Security and a successor depositary is not appointed by the Issuer
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary to issue
Physical Securities.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount at maturity of the Global Security in an amount equal to the
principal amount at maturity of the beneficial interest in the Global Security
to be transferred or exchanged, and the Issuer shall execute (and any Subsidiary
Guarantor shall execute the Subsidiary Guarantee endorsed thereon), and the
Trustee, pursuant to instructions set forth in an Officer's Certificate from the
Issuer, shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
(d) In connection with the transfer or exchange of Global Securities as
an entirety to beneficial owners pursuant to paragraph (b), the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuer shall execute (and any Subsidiary Guarantor shall execute the
Subsidiary Guarantee endorsed thereon), and the Trustee, pursuant to
instructions set forth in an Officer's Certificate from each of the Issuer,
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Securities, an
equal aggregate principal amount at maturity of Physical Securities of
authorized denominations.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Participants and persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Issuer is to effect the redemption of any Securities pursuant to
paragraph 5 of the Securities at the applicable redemption price set forth
therein, it shall notify the Trustee in writing of the redemption date and the
principal amount at maturity of Securities to be redeemed.
The Issuer shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officer's Certificate
stating that such redemption will comply with the conditions contained herein.
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SECTION 3.02 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed pro
rata or by lot or in such other manner as the Trustee shall deem appropriate and
fair. The Trustee shall make the selection from the Securities then outstanding,
subject to redemption and not previously called for redemption. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations larger than
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Issuer shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) the CUSIP number;
(d) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
redemption date and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender of such Securities to the Paying
Agent; and
(g) if any Security is being redeemed in part, the portion of the
principal amount at maturity of such Security to be redeemed and that, after the
redemption date, upon surrender
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of such Security, a new Security or Securities in principal amount at maturity
equal to the unredeemed portion thereof will be issued.
At the Issuer's request, the Trustee shall give the notice of
redemption on behalf of the Issuer, in the Issuer's name and at the Issuer's
expense.
SECTION 3.04 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon to the redemption date, but interest
installments whose maturity is on or prior to such redemption date shall be
payable to the Holders of record at the close of business on the relevant record
dates referred to in the Securities. The Trustee shall not be required to (i)
issue, authenticate, register the transfer of or exchange any Security during a
period beginning 15 days before the date a notice of redemption is mailed and
ending at the close of business on the date the redemption notice is mailed, or
(ii) register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 3.05 Deposit of Redemption Price.
At least one Business Day before the redemption date, the Issuer shall
deposit with the Paying Agent (or if the Issuer is the Paying Agent, such Issuer
shall, on or before the redemption date, segregate and hold in trust) money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Securities to be redeemed on that date other than Securities or portions thereof
called for redemption on that date which have been delivered by the Issuer to
the Trustee for cancellation.
SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount at
maturity to the unredeemed portion of the Security surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
The Issuer shall pay the principal of and interest on the Securities in
the manner provided in the Securities. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent (other
than the Issuer, a Subsidiary or an Affiliate of the Issuer) holds on that date
money designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders of the Securities pursuant to
the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the same rate per
annum borne by the Securities. The Issuer shall pay interest on overdue
installments of interest at the same rate per annum borne by the Securities, to
the extent lawful.
Payments of the principal of and interest on any Global Securities will
be made to the Depositary or its nominee, as the case may be, as the registered
owner thereof. None of the Issuer, the Trustee nor any Paying Agent will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any Global
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interest.
SECTION 4.02 Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan, the City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Issuer in respect of the Securities and this Indenture
may be served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the
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Xxxxxxx xx Xxxxxxxxx, the City of New York, for such purposes. The Issuer shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 4.03 Limitation on Transactions with Affiliates.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or conduct any transaction or series of
transactions (including the purchase, sale, lease or exchange of any property,
employee compensation arrangements or the rendering of any service) with any
Affiliate, officers or directors of the Issuer (an "Affiliate Transaction")
unless (i) the terms of such transaction are no less favorable to the Issuer or
such Restricted Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate; (ii) in the event such Affiliate Transaction
involves an aggregate amount in excess of $1.0 million, the terms of such
transaction are set forth in writing and shall have been approved by a majority
of the members of the Board of Directors having no personal stake in such
Affiliate Transaction (and such majority determines that such Affiliate
Transaction satisfies the criteria in clause (i) above) and (iii) in the event
such Affiliate Transaction involves an aggregate amount in excess of $10
million, the Issuer has received a written opinion from a nationally recognized
independent investment banking firm, or nationally recognized accounting or
appraisal firm, that such Affiliate Transaction is fair to the Issuer and its
Restricted Subsidiaries from a financial point of view.
The provisions of the foregoing paragraph shall not prohibit (i) any
Restricted Payment permitted to be made pursuant to Section 4.06, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors and
otherwise permitted under this Indenture, (iii) the grant of stock options or
similar rights to employees and directors of the Issuer in the ordinary course
of business pursuant to plans approved by the Board of Directors, and otherwise
permitted under this Indenture (iv) loans or advances to employees in the
ordinary course of business in accordance with the past practices of the Issuer
or its Restricted Subsidiaries, but in any event not to exceed $1.0 million in
the aggregate outstanding at any one time, (v) the payment of reasonable fees to
directors of the Issuer and its Restricted Subsidiaries who are not employees of
the Issuer or its Restricted Subsidiaries, (vi) any transaction between the
Issuer and a Wholly Owed Subsidiary or between Wholly Owned Subsidiaries or
(vii) the payment of Investment Banking Fees.
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SECTION 4.04 Limitation on Indebtedness
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) except for Permitted Indebtedness; provided, however, that the
Issuer or any Restricted Subsidiary which is a Subsidiary Guarantor may incur
Indebtedness if, at the time of and immediately after giving pro forma effect to
such incurrence of indebtedness and the application of the proceeds therefrom,
the Debt to Operating Cash Flow Ratio would be less than or equal to 8.0 to 1.0.
The foregoing limitations will not apply to the incurrence of any of
the following (collectively, "Permitted Indebtedness"), each of which shall be
given independent effect:
(a) Indebtedness under the Securities issued on the date of this
Indenture, the Exchange Securities and this Indenture;
(b) Indebtedness of the Issuer and the Restricted Subsidiaries
outstanding on the Issuance Date and listed on a schedule to this Indenture,
other than Indebtedness described in clause (a), (c), (d), (f) or (j) of this
Section 4.04;
(c) Indebtedness of (x) any Wholly Owned Restricted Subsidiary owed to
or issued to and held by the Issuer or any Restricted Subsidiary and (y) the
Issuer owed to and held by any Wholly Owned Restricted Subsidiary which is
unsecured and subordinated in right of payment to the payment and performance of
the Issuer's obligations under this Indenture and the Securities; provided,
however, that an incurrence of Indebtedness that is not permitted by this clause
(c) shall be deemed to have occurred upon (i) any sale or other disposition of
any Indebtedness of the Issuer or a Restricted Subsidiary referred to in this
clause (c) to any Person (other than the Issuer or a Wholly Owned Restricted
Subsidiary) such that such Restricted Subsidiary ceases to be a Restricted
Subsidiary or (ii) any designation of a Restricted Subsidiary which holds
Indebtedness of the Issuer as an Unrestricted Subsidiary;
(d) guarantees by any Restricted Subsidiary of Indebtedness of the
Issuer permitted in accordance with the provisions of this Indenture;
(e) Indebtedness of any Restricted Subsidiary under the New Senior
Credit Agreement in the aggregate principal amount at any one time outstanding
not to exceed $125.0 million;
(f) indebtedness of the Issuer or any Restricted Subsidiary to the
extent representing a replacement, renewal, refinancing or extension
(collectively, a "refinancing") of outstanding
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Indebtedness of the Issuer or any Restricted Subsidiary, as the case may be,
incurred in compliance with clause (a), (b), (e), (g) or (j) of this paragraph
of this covenant; provided, however, that (i) Indebtedness of the Issuer may not
be refinanced under this clause (f) with Indebtedness of any Restricted
Subsidiary, (ii) any such refinancing shall not exceed the sum of the principal
amount or liquidation preference or redemption payment value (or, if such
Indebtedness provides for a lesser amount to be due and payable upon a
declaration of acceleration thereof at the time of such refinancing, an amount
no greater than such lesser amount) of the Indebtedness being refinanced plus
the amount of accrued interest or dividends thereon and such reasonable fees and
expenses incurred in connection therewith, (iii) Indebtedness representing a
refinancing of Indebtedness of the Issuer shall not mature prior to the stated
maturity of the Indebtedness refinanced and shall have a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of
the Indebtedness being refinanced, (iv) Subordinated Obligations of the Issuer
may only be refinanced with Subordinated Obligations of the Issuer, and (v)
Other Pari Passu Debt which is unsecured may only be refinanced with unsecured
Indebtedness, which is either Other Pari Passu Debt or Subordinated Obligations;
(g) Indebtedness of the Issuer or a Restricted Subsidiary represented
by Capitalized Lease Obligations, mortgage financings, performance bonds,
purchase money obligations or letters of credit, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the business
of the Issuer or such Restricted Subsidiary in an aggregate principal amount not
to exceed $10.0 million at any time outstanding;
(h) Indebtedness incurred and outstanding on or prior to the date on
which such Restricted Subsidiary was acquired by the Issuer (other than
Indebtedness incurred in connection with, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Issuer); provided, however, that on
the date of such acquisition and after giving effect thereto, the Debt to
Operating Cash Flow Ratio would have been less than or equal to the Debt to
Operating Cash Flow Ratio immediately prior thereto;
(i) Indebtedness of the Issuer and any Restricted Subsidiary under a
Hedging Agreement related to floating interest on Indebtedness under the New
Senior Credit Agreement provided that such Hedging Agreement is designed solely
to protect against fluctuations in interest rates and does not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in interest rates;
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(j) Indebtedness under the Notes and the related indenture; and
(k) In addition to any Indebtedness described in clauses (a) through
(j) above, Indebtedness of the Issuer or any of the Restricted Subsidiaries so
long as the aggregate principal amount of all such indebtedness incurred
pursuant to this clause (k) does not exceed $5.0 million at any one time
outstanding.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (a) through (i) above
or is entitled to be incurred pursuant to the first paragraph of this covenant,
the Issuer shall classify such item of Indebtedness in any manner that complies
with this covenant and such item of Indebtedness shall be treated as having been
incurred pursuant to only one of such clauses or pursuant to the first paragraph
hereof.
SECTION 4.05 Disposition of Proceeds of Asset Sales.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, consummate an Asset Sale unless (i) the Issuer or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such sale
or other disposition at least equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Issuer and evidenced
in a Board Resolution; and (ii) not less than 75% of the consideration received
by the Issuer or such Restricted Subsidiary, as the case may be, is in the form
of cash or Cash Equivalents.
Within 365 days after the receipt of any Net Available Cash from an
Asset Sale, the Issuer or the applicable Restricted Subsidiary may apply such
Net Available Cash to: (A) acquire all or substantially all of the assets of a
Related Business; (B) acquire Voting Stock of a Related Business from a Person
that is not a Subsidiary of the Issuer; provided, that, (x) after giving effect
thereto, the Issuer or its Restricted Subsidiary owns a majority of such Voting
Stock and (y) such acquisition is otherwise made in accordance with this
Indenture, including, without limitation, the covenant in Section 4.06; (C) make
a capital expenditure or acquire other long-term assets that are used or useful
in a Related Business; or (D) prepay, repay, redeem or purchase Indebtedness
outstanding under the New Senior Credit Agreement. To the extent of the balance
of such Net Available Cash after application in accordance with clauses (A),
(B), (C) or (D) ("Excess Proceeds"), the Issuer shall make an Offer to Holders
of the Securities to purchase Securities and an offer to holders of Pari Passu
Indebtedness to repurchase such Indebtedness pursuant to and subject to the
conditions set forth below.
Notwithstanding the foregoing provisions, the Issuer and its Restricted
Subsidiaries shall not be required to apply any Net Available Cash in accordance
herewith except to the
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extent that the aggregate Net Available Cash from all Asset Sales which are not
applied in accordance with this covenant exceeds $10.0 million. Pending
application of Net Available Cash pursuant to this covenant, such Net Available
Cash shall be invested in Permitted Investments.
For the purposes of this covenant, the following are deemed to be cash:
(x) the assumption by the transferee of Indebtedness of the Issuer (other than
Indebtedness that is subordinated to the Securities and other than any
Disqualified Equity Interest of the Issuer) or Indebtedness of any Restricted
Subsidiary and the release of the Issuer or such Restricted Subsidiary from all
liability on such Indebtedness in connection with such Asset Sale; (y)
securities received by the Issuer or any Restricted Subsidiary from the
transferee that are converted by the Issuer or such Restricted Subsidiary into
cash within 20 days of the applicable Asset Sale (to the extent of the cash
received); and (z) any liabilities (as shown on the Issuer's or such Restricted
Subsidiary's most recent balance sheet) of the Issuer or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Securities or any Subsidiary Guarantee thereof) that
are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Issuer or any such Restricted Subsidiary
from further liability.
When the aggregate amount of Excess Proceeds exceeds $10.0 million or
more, the Issuer will apply the Excess Proceeds to the repayment of the
Securities and any other Pari Passu Indebtedness outstanding with similar
provisions requiring the Issuer to make an offer to purchase such Indebtedness
with the proceeds from any Asset Sale as follows: (A) the Issuer will make an
offer to purchase (an "Offer") from all holders of the Securities in accordance
with the procedures set forth in this Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount (the "Security Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the outstanding principal
amount of the Securities, and the denominator of which is the sum of the
outstanding principal amount of the Securities and such Pari Passu Indebtedness
(subject to proration in the event such amount is less than the aggregate
Offered Price (as defined herein) of all Securities tendered) and (B) to the
extent required by such Pari Passu Indebtedness to permanently reduce the
principal amount of such Pari Passu Indebtedness, the Issuer will make an offer
to purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a "Pari
Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to the excess of
the Excess Proceeds over the Security Amount; provided that in no event will the
Issuer be required to make a Pari Passu Offer in a Pari Passu Debt Amount
exceeding the principal amount of such Pari Passu Indebtedness. The offer price
of the Securities will be payable in cash in an amount equal to 100% of the
Accreted Value of the Securities plus accrued and unpaid interest, if any, to
the date (the "Offer Date") such Offer is consummated
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(the "Offered Price"), in accordance with the procedures set forth in this
Indenture. To the extent that the aggregate Offered Price of the Securities
tendered pursuant to the Offer is less than the Security Amount relating thereto
or the aggregate amount of Pari Passu Indebtedness that is purchased in a Pari
Passu Offer is less than the Pari Passu Debt Amount, the Issuer may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Securities and Pari Passu Indebtedness surrendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Securities to be purchased on a pro rata basis. Upon the completion of the
purchase of all the Securities tendered pursuant to an Offer and the completion
of a Pari Passu Offer, the amount of Net Available Cash, if any shall be reset
at zero.
If the Issuer is required to make an Offer, the Issuer shall mail,
within 30 days following the Reinvestment Date, a notice to the holders of
Securities stating, among other things: (1) that such holders have the right to
require the Issuer to apply the Excess Proceeds to repurchase such Securities at
a purchase price in cash equal to 100% of the Accreted Value thereof plus
accrued and unpaid interest, if any, to the date of purchase; (2) the purchase
date, which shall be no earlier than 30 days and not later than 60 days from the
date such notice is mailed; (3) the instructions, determined by the Issuer, that
each holder must follow in order to have such Securities repurchased; and (4)
the calculations used in determining the amount of Excess Proceeds to be applied
to the repurchase of such Securities.
The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
covenant.
SECTION 4.06 Limitation on Restricted Payments.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, make any Restricted Payment if (i) immediately before or immediately after
giving effect to such Restricted Payment, a Default or Event of Default shall
have occurred and be continuing or shall occur as a consequence of such
Restricted Payment; (ii) immediately after giving effect to such proposed
Restricted Payment, the Issuer would not be able to incur $1.00 of additional
Indebtedness under the Debt to Operating Cash Flow Ratio of the first paragraph
of Section 4.04; or (iii) immediately after giving effect to any such Restricted
Payment, the aggregate of all Restricted Payments which shall have been made on
or after the date of this Indenture (the amount of any Restricted Payment, if
other than cash, to be based upon the fair market value thereof on the date of
such Restricted Payment) would exceed an amount equal to the difference between
(a) the Cumulative Credit and (b) 1.4 times Cumulative Interest Expense.
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"Restricted Payment" means (i) any dividend (whether made in cash,
property or securities) on or with respect to any Equity Interests of the Issuer
or of any Restricted Subsidiary (other than any dividend made to the Issuer or
another Wholly Owned Restricted Subsidiary or any dividend payable in Equity
Interests of the Issuer or any Restricted Subsidiaries); or (ii) any
distribution (whether made in cash, property or securities) on or with respect
to any Equity Interests of the Issuer or of any Restricted Subsidiary (other
than any distribution made to the Issuer or another Wholly Owned Subsidiary or
any distribution payable in Equity Interests of the Issuer or any Restricted
Subsidiary); or (iii) any redemption, repurchase, retirement or other direct or
indirect acquisition of any Equity Interests of the Issuer, or any warrants,
rights or options to purchase or acquire any such Equity Interests or any
securities exchangeable for or convertible into any such Equity Interests; or
(iv) any redemption, repurchase, retirement or other direct or indirect
acquisition for value or other payment of principal, prior to any scheduled
final maturity, scheduled repayment or scheduled sinking fund payment, of any
Subordinated Obligations; or (v) any Investment (other than a Permitted
Investment).
The provisions of the first paragraph of this covenant shall not
prevent (i) the retirement of any of the Issuer's Equity Interests in exchange
for, or out of the proceeds of, the substantially concurrent sale (other than to
a Subsidiary of the Issuer or an employee stock ownership plan or to a trust
established by the Issuer or any Subsidiary of the Issuer for the benefit of its
employees) of Equity Interests of the Issuer (other than any Disqualified Equity
Interest), provided that the Net Cash Proceeds from the issuance are excluded
from clause (i) of the definition of Cumulative Credit; (ii) the payment of any
dividend or distribution on, or redemption of Equity Interests within 60 days
after the date of declaration of such dividend or distribution or the giving of
formal notice of such redemption, if at the date of such declaration or giving
of such formal notice such payment or redemption would comply with the first
paragraph of this covenant and the other provisions of this Indenture; (iii)
investments constituting Restricted Payments made as a result of the receipt of
non-cash consideration from any Asset Sale made pursuant to and in compliance
with the provisions described in Section 4.05; (iv) the redemption, repurchase,
retirement, defeasance or other acquisition of any Subordinated Obligations in
exchange for, or out of Net Cash Proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Issuer or any employee stock ownership plan
or to a trust established by the Issuer or any Subsidiary of the Issuer (for the
benefit of its employees)) of Equity Interests of the Issuer (other than any
Disqualified Equity Interest); and (v) the making and consummation of (A) an
Offer in accordance with the provisions of this Indenture with any Excess
Proceeds or (B) a Change of Control Offer with respect to the Securities in
accordance with the provisions of this Indenture; provided however, that in the
case of clause (ii), no Default or Event of Default shall have occurred and be
continuing at the time of such Restricted Payment or as a result thereof. In
determining the aggregate amount of Restricted Payments made on or
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after the date of this Indenture, Restricted Payments made pursuant to clause
(ii) shall be included in such calculation.
SECTION 4.07 Corporate Existence.
Subject to Article Five, the Issuer shall do or shall cause to be done
all things necessary to preserve and keep in full force and effect its corporate
or partnership existence, as the case may be, and the corporate, partnership or
other existence of each of the Restricted Subsidiaries in accordance with the
respective organizational documents of each such Restricted Subsidiary and the
rights (charter and statutory), licenses and franchises of the Issuer and the
Restricted Subsidiaries.
SECTION 4.08 Payment of Taxes and Other Claims.
The Issuer shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Issuer or any of its Restricted
Subsidiaries or upon the income, profits or property of the Issuer or any of its
Restricted Subsidiaries and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability, or Lien (other than a Permitted Lien) upon the property, of the
Issuer or any of its Restricted Subsidiaries; provided, however, that the Issuer
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate reserves or other provision has been made.
SECTION 4.09 Notice of Defaults.
(a) In the event that any Indebtedness of the Issuer or any of its
Restricted Subsidiaries is declared due and payable before its maturity because
of the occurrence of any default (or any event which, with notice or lapse of
time, or both, would constitute such a default) under such Indebtedness, the
Issuer shall promptly give written notice to the Trustee of such declaration,
the status of such default or event and what action the Issuer is taking or
proposes to take with respect thereto.
(b) Within five business days of the occurrence of any Default, the
Issuer shall promptly deliver an Officer's Certificate to the Trustee specifying
the Default or Event of Default.
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SECTION 4.10 Maintenance of Properties.
The Issuer shall cause all material properties owned by or leased to it
or any of its Restricted Subsidiaries and used or useful in the conduct of its
business or the business of any of its Restricted Subsidiaries to be maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Issuer may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 4.11 Compliance Certificate.
The Issuer shall deliver to the Trustee on or before a date not more
than 60 days after the end of each fiscal quarter and not more than 120 days
after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Issuer stating that a review of the activities of the Issuer has been
made under the supervision of the signing officers with a view to determining
whether a Default or Event of Default has occurred and whether or not the
signers know of any Default or Event of Default that occurred during such fiscal
year. If they do know of such a Default or Event of Default, the certificate
shall describe all such Defaults or Events of Default, their status and the
action the Issuer is taking or proposes to take with respect thereto.
SECTION 4.12 Provision of Financial Information.
Whether or not the Issuer is subject to Sections 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Issuer shall file with the
SEC so long as the Securities are outstanding the annual reports, quarterly
reports and other periodic reports which the Issuer would have been required to
file with the SEC pursuant to such Sections 13(a) or 15(d) or any successor
provision thereto if the Issuer was so subject on or prior to the respective
dates (the "Required Filing Dates") by which the Issuer would have been required
so to file such documents if the Issuer was so subject. The Issuer shall also in
any event (a) within 15 days of each Required Filing Date (whether or not
permitted or required to file with the SEC) (i) transmit or cause to be
transmitted by mail to all holders of Securities, as their names and addresses
appear in the register maintained by the Registrar, without cost to such
holders, and (ii) file with the Trustee, copies of the annual reports, quarterly
reports and other documents which the Issuer is required to file with the SEC
pursuant to the preceding sentence or, if such filing is not so permitted,
information and data of a similar nature, and (b) if, notwithstanding the
preceding sentence, filing such documents by the Issuer with the SEC is not
permitted by SEC practice or applicable law or regulations, promptly upon
written request supply copies of
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such documents to any Holder. The Issuer shall not be obligated to file any such
reports with the SEC if the SEC does not permit such filings for all companies
similarly situated other than due to any action or inaction by the Issuer. The
Issuer will also comply with Section 314(a) of the TIA. In addition, for so long
as any of the Securities remain outstanding and prior to the later of the
consummation of the Exchange Offer and the effectiveness of the Shelf
Registration Statement, if required, the Issuer shall furnish to holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act of 1933, as amended.
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law, which would prohibit or forgive the Issuer from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Issuer hereby expressly waives 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 4.14 Change of Control.
Upon the occurrence of a Change of Control, each holder of Securities
shall have the right to require the Issuer to repurchase all or any part of such
holder's Securities pursuant to an offer described below (the "Change of Control
Offer") at a purchase price equal to 101% of the Accreted Value thereof plus any
accrued and unpaid interest, if any, thereon to the date of repurchase (the
"Change of Control Payment").
Within 30 days of the occurrence of a Change of Control, the Issuer
shall send by first-class mail, postage prepaid, to the Trustee and to each
holder of the Securities, at the address appearing in the register of Securities
maintained by the Registrar, a notice stating: (i) that the Change of Control
Offer is being made pursuant to this covenant and that all Securities tendered
will be accepted for payment; (2) 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 (the "Change of Control Payment Date"); (3)
that any Security not tendered will continue to accrue interest; (4) that,
unless the Issuer defaults in the payment of the Change of Control Payment, any
Securities accepted for payment pursuant to the Change of Control Offer
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shall cease to accrue interest after the Change of Control Payment Date; (5)
that holders accepting the offer to have their Securities purchased pursuant to
a Change of Control Offer will be required to surrender the Securities to the
Paying Agent at the address specified in the notice prior to the close of
business on the business day preceding the Change of Control Payment Date; (6)
that holders will be entitled to withdraw their acceptance if the Paying Agent
receives, not later than the close of business on the third Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the holder, the principal
amount of the Securities delivered for purchase, and a statement that such
holder is withdrawing its election to have such Securities purchased; (7) that
holders whose Securities are being purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered, provided that each Security purchased and each such new
Security issued shall be in an original principal amount in denominations of
$1,000 and integral multiples thereof; (8) any other procedures that a holder
must follow to accept a Change of Control Offer or effect withdrawal of such
acceptance; and (9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuer shall, to the extent
lawful (i) accept for payment Securities or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Securities or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Securities so
accepted together with an Officer's Certificate stating the Securities or
portions thereof tendered to the Issuer. The Paying Agent shall promptly mail to
each holder of Securities so accepted payment in an amount equal to the purchase
price for such Securities, and the Issuer shall execute and issue, and the
Trustee shall promptly authenticate and mail to such holder, a new Security
equal in principal amount to any unpurchased portion of the Securities
surrendered; provided that each such new Security shall be issued in an original
principal amount in denominations of $1,000 and integral multiples thereof. The
Issuer will send to the Trustee and the holders of Securities on or as soon as
practicable after the Change of Control Payment Date a notice setting forth the
results of the Change of Control Offer.
The Issuer will not be required to make a Change of Control Offer if a
third party makes the Change of Control Offer in the manner, at the time and
otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Issuer and purchases all
Securities or portions thereof validly tendered and not withdrawn under such
Change of Control Offer.
The Issuer will comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Securities pursuant to this
covenant.
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SECTION 4.15 Calculation of Original Issue Discount.
The Issuer shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time, and requested by
the Trustee.
SECTION 4.16 Limitations on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Issuer 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 to the Issuer or any Restricted Subsidiary on
its Equity Interests; (b) pay any Indebtedness owed to the Issuer or any
Restricted Subsidiary; (c) make loans or advances or guarantee any such loans or
advances, to the Issuer or any Restricted Subsidiary; (d) transfer any of its
properties or assets to the Issuer or any Restricted Subsidiary; (e) grant Liens
on the assets of the Issuer or any Restricted Subsidiary in favor of the holders
of the Securities; or (f) guarantee the Securities or any renewals or
refinancings thereof (any of the actions described in clauses (a) through (f)
above is referred to herein as a "Specified Action"), except for (i) such
encumbrances or restrictions arising by reason of Acquired Indebtedness of any
Restricted Subsidiary existing at the time such Person became a Restricted
Subsidiary, provided that such encumbrances or restrictions were not created in
anticipation of such Person becoming a Restricted Subsidiary and are not
applicable to the Issuer or any other Restricted Subsidiary, (ii) such
encumbrances or restrictions arising under refinancing Indebtedness permitted by
clause (f) of the second paragraph under Section 4.04; provided that the terms
and conditions of any such restrictions are not less favorable to the holders of
Securities than those under the Indebtedness being refinanced, (iii) customary
provisions restricting the assignment of any contract of the Issuer or any
Restricted Subsidiary, (iv) with respect to clause (d) above, restrictions in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent the restriction restricts the transfer of property
subject to such security agreement or mortgage; (v) restrictions pursuant to the
New Senior Credit Agreement; and (vi) restrictions pursuant to the Notes and the
related indenture.
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SECTION 4.17 Designation of Unrestricted Subsidiaries.
The Issuer may designate after the Issuance Date any Subsidiary of the
Issuer (other than a Subsidiary Guarantor) as an "Unrestricted Subsidiary" under
this Indenture (a "Designation") only if:
(a) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation;
(b) the Issuer would be permitted to make an Investment (other than a
Permitted Investment) at the time of Designation (assuming the effectiveness of
such Designation) pursuant to the first paragraph of Section 4.06 in an amount
(the "Designation Amount") equal to the greater of (1) the net book value of the
Issuer's interest in such Subsidiary calculated in accordance with GAAP or (2)
the Fair Market Value of the Issuer's interest in such Subsidiary as determined
in good faith by the Issuer's Board of Directors;
(c) the Issuer would be permitted under this Indenture to Incur $1.00
of additional Indebtedness (other than Permitted Indebtedness) under the Debt to
Operating Cash Flow Ratio of the first paragraph of Section 4.04 at the time of
such Designation (assuming the effectiveness of such Designation);
(d) such Unrestricted Subsidiary does not own any Equity Interest in
any Restricted Subsidiary of the Issuer which is not simultaneously being
designated an Unrestricted Subsidiary;
(e) such Unrestricted Subsidiary is not liable, directly or indirectly,
with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness, provided that an Unrestricted Subsidiary may provide a Subsidiary
Guarantee for the Securities; and
(f) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Issuer or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Issuer or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Issuer or, in the event such condition is not
satisfied, the value of such agreement, contract, arrangement or understanding
to such Unrestricted Subsidiary shall be deemed a Restricted Payment.
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In the event of any such Designation, the Issuer shall be deemed to
have made an Investment constituting a Restricted Payment pursuant Section 4.06
for all purposes of this Indenture in the Designation Amount.
The Issuer shall not and shall not cause or permit any Restricted
Subsidiary to at any time (x) provide credit support for, or subject any of its
property or assets (other than the Equity Interest of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) (other than permitted Investments in Unrestricted Subsidiaries) or
(y) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary. For purposes of the foregoing, the Designation of a Subsidiary of
the Issuer as an Unrestricted Subsidiary shall be deemed to be the designation
of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries.
The Issuer may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at the time of and
after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at such
time, have been permitted to be incurred for all purposes of this Indenture; and
(c) unless such redesignated Subsidiary shall not have any Indebtedness
outstanding (other than Indebtedness that would be Permitted Indebtedness),
immediately after giving effect to such proposed Revocation, and after giving
pro forma effect to the incurrence of any such Indebtedness of such redesignated
Subsidiary as if such Indebtedness was incurred on the date of the Revocation,
the Issuer could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.04.
All Designations and Revocations must be evidenced by a resolution of
the Board of Directors of the Issuer delivered to the Trustee certifying
compliance with the foregoing provisions.
SECTION 4.18 Limitation on Liens.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, to incur any Indebtedness secured by a Lien against
or on any of its property or assets
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now owned or hereafter acquired by the Issuer or any Restricted Subsidiary
unless contemporaneously therewith (a) if such Indebtedness is not Subordinated
Indebtedness, effective provision is made to secure the Securities equally and
ratably with such secured Indebtedness, and (b) if such Indebtedness is
Subordinated Indebtedness, the Securities are secured by a lien against such
assets or property that is senior in priority to the liens securing such
Subordinated Indebtedness. This restriction does not, however, apply to
Indebtedness secured by (i) Liens securing the Indebtedness under the New Senior
Credit Agreement; (ii) Liens, if any, in effect on the date of this Indenture;
(iii) Liens in favor of governmental bodies to secure progress or advance
payments; (iv) Liens on Equity Interests or Indebtedness existing at the time of
the acquisition thereof (including acquisition through merger or consolidation),
provided that such Liens were not incurred in anticipation of such acquisition;
(v) Liens securing the Securities; (vi) Liens securing Indebtedness of the
Issuer in an amount not to exceed $5.0 million at any time outstanding; (vii)
Other Permitted Liens; and (viii) any extension, renewal or replacement of any
Lien referred to in the foregoing clauses (i) through (vii), inclusive but only
to the extent such liens do not extend to any other property or assets (other
than improvements).
SECTION 4.19 Limitation on Guarantees of Certain Indebtedness.
The Issuer shall not (a) permit any Restricted Subsidiary to guarantee
any Indebtedness of the Issuer other than the Securities (the "Other
Indebtedness"), or (b) pledge any intercompany Indebtedness representing
obligations of any of its Restricted Subsidiaries to secure the payment of Other
Indebtedness, in each case unless such Restricted Subsidiary, the Issuer and the
Trustee execute and deliver a supplemental indenture causing such Restricted
Subsidiary to guarantee the Issuer's obligations under this Indenture and the
Securities to the same extent that such Restricted Subsidiary guaranteed the
Issuer's obligations under the Other Indebtedness (including waiver of
subrogation, if any except that (A) such guarantee need not be secured unless
required pursuant to Section 4.18 and (B) if such Indebtedness is by its terms
expressly subordinated to the Securities, any such assumption, guarantee or
other liability of such Restricted Subsidiary with respect to such Indebtedness
shall be subordinated to such Restricted Subsidiary's guarantee of the
Securities at least to the same extent as such Indebtedness is subordinated to
the Securities).
Notwithstanding the foregoing, any Guarantee by a Restricted Subsidiary
of the Securities shall provide by its terms that it (and all Liens securing the
same) shall be automatically and unconditionally released and discharged upon
any sale, exchange or transfer, to any Person not an Affiliate of the Issuer, of
all of the Issuer's Equity Interest in, or all of or substantially all the
assets of, such Restricted Subsidiary which transaction is permitted by the
terms of this Indenture and such Restricted Subsidiary is released from all
guarantees, if any, by it of other Indebtedness of the Issuer or any Restricted
Subsidiaries and (with respect to any
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Guarantees created after the date of this Indenture) the release by the holders
of the Indebtedness of the Issuer described in clause (a) above of their
security interest or their guarantee by such Restricted Subsidiary (including
any deemed release upon payment in full of all obligations under such
Indebtedness), at such time as (A) no other Indebtedness of the Issuer has been
secured or guaranteed by such Restricted Subsidiary, as the case may be, or (B)
the holders of all such other Indebtedness which is secured or guaranteed by
such Restricted Subsidiary also release their security interest in or guarantee
by such Restricted Subsidiary (including any deemed release upon payment in full
of all obligations under such Indebtedness).
SECTION 4.20 Limitation on Sale or Issuance of Capital Stock of Restricted
Subsidiaries.
The Issuer (a) shall not, and shall not permit any Restricted
Subsidiary of the Issuer to, directly or indirectly, transfer, convey, sell,
lease or otherwise dispose of any Equity Interest of any Restricted Subsidiary
to any Person (other than to the Issuer or a Wholly Owned Restricted
Subsidiary), unless (i) such transfer, conveyance, sale, lease or other
disposition is of all the Equity Interest of such Restricted Subsidiary and (ii)
the Net Cash Proceeds from such transfer conveyance, sale, lease or other
disposition are applied in accordance with Section 4.05 and (b) will not permit
any Restricted Subsidiary to issue any of its Equity Interest (other than, if
required under applicable law, shares of its Equity Interest constituting
directors' qualifying shares) to any Person other than to the Issuer or Wholly
Owned Restricted Subsidiary.
SECTION 4.21 Limitation on Sale/Leaseback Transactions.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with respect to any property
unless (i) the Issuer or such Restricted Subsidiary would be entitled to (A)
incur Indebtedness in an amount equal to the Attributable Indebtedness with
respect to such Sale/Leaseback Transaction pursuant to Section 4.04 and (B)
create a Lien on such property securing such Attributable Indebtedness without
equally and ratably securing the Securities pursuant to the covenant described
under Section 4.18; (ii) the net cash proceeds received by the Issuer or any
Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at
least equal to the fair value (as determined in good faith by the Board of
Directors of the Issuer and certified in an Officer's Certificate to the
Trustee) of such property and (iii) the transfer of such property is permitted
by, and the Issuer or such Restricted Subsidiary applies the proceeds of such
transaction in compliance with Section 4.05.
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ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01 Merger, Sale of Assets, etc.
The Issuer shall not, in a single transaction or through a series of
related transactions, consolidate or merge with or into, or sell, assign,
convey, lease, transfer or otherwise dispose of all or substantially all of its
assets to, another Person or a group of Persons, or permit any Restricted
Subsidiary to do so if such transaction would result in the transfer of all or
substantially all of the assets of the Issuer on a consolidated basis unless (i)
either (A) the Issuer shall be the continuing Person, or (B) the Person formed
by or surviving any such consolidation or merger (if other than the Issuer), or
to which any such transfer shall have been made, is a corporation, limited
liability company or limited partnership organized and existing under the laws
of the United States, any State thereof or the District of Columbia; (ii) the
surviving Person (if other than the Issuer) expressly assumes by supplemental
indenture all the obligations of the Issuer under the Securities and this
Indenture; (iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; (iv) immediately
after giving effect to such transaction, the surviving Person would be able to
incur $1.00 of additional Indebtedness under the Debt to Operating Cash Flow
Ratio of Section 4.04; and (v) the Issuer shall have delivered to the Trustee
prior to the proposed transaction an Officer's Certificate and an Opinion of
Counsel, each stating that the proposed consolidation, merger or transfer and
such supplemental indenture will comply with this Indenture.
In addition, each Subsidiary Guarantor shall not, and the Issuer shall
not permit a Subsidiary Guarantor to, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person (other than the Issuer or any Subsidiary Guarantor) or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person or group of Persons (other than the Issuer
or any Subsidiary Guarantor), unless clauses (i)-(v) above are satisfied with
respect to such Subsidiary Guarantor (rather than the Issuer).
SECTION 5.02 Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Issuer is not
the Surviving Person and the Surviving Person is to assume all the Obligations
of such Issuer under the Securities, the Registration Rights Agreement and this
Indenture pursuant to a supplemental indenture, such Surviving Person shall
succeed to, and be substituted for, and may exercise every right and
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power of, such Issuer and such Issuer shall be discharged from its Obligations
under this Indenture, the Securities.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following shall be an "Event of Default":
(a) failure to pay interest on any Security when the same becomes due
and payable and such Default continues for a period of 30 days, whether or not
such payment is prohibited by Article Eight hereof;
(b) failure to pay the principal (or premium, if any, on) of any
Securities when the same becomes due and payable at maturity, upon optional
redemption, upon required repurchase, upon declaration or otherwise, whether or
not such payment is prohibited by Article Eight hereof;
(c) failure to perform or comply with any of the provisions of Sections
5.01 or 5.02;
(d) failure to perform or comply with any of the provisions of Sections
4.03, 4.04, 4.06, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 or 4.20 for 30 days
after notice;
(e) failure to observe or perform any other covenant, warranty or
agreement contained in the Securities or this Indenture, and the Default
continues for the period and after the notice specified in the last paragraph of
this Section 6.01;
(f) a default or defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Issuer or any Restricted Subsidiary
having an outstanding principal amount of $5.0 million or more individually or
in the aggregate that has resulted in the acceleration of the payment of such
Indebtedness or the failure to pay principal when due at the stated maturity of
any such Indebtedness;
(g) [Intentionally Omitted.]
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
(h) either of the Issuer or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(3) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(4) makes a general assignment for the benefit of its creditors;
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Issuer or any Restricted Subsidiary
in an involuntary case or proceeding,
(2) appoints a Custodian of the Issuer or any Restricted Subsidiary
or for all or substantially all of its property, or
(3) orders the liquidation of the Issuer or any Restricted
Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60
consecutive days; provided, however, that if the entry of such order or decree
is appealed and dismissed on appeal then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed to have been cured;
or
(j) there shall have been any judgment or judgments against the Issuer
or any Restricted Subsidiary in an amount of $5.0 million or more (net of any
amounts covered by reputable and creditworthy insurance companies) and either
(A) an enforcement proceeding has been commenced by any creditor upon such
judgement or decree or (B) such judgement or decree remains outstanding for a
period of 60 days following such judgement and is not discharged waived or
stayed within 10 days of after notice.
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A Default under clause (e) is not an Event of Default until the Trustee
notifies the Issuer, or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities notify the Issuer and the Trustee, of the
Default in writing and the Issuer does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." Such notice shall
be given by the Trustee if so requested by the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding. When a Default is
cured, it ceases.
SECTION 6.02 Acceleration.
If an Event of Default with respect to the Securities (other than an
Event of Default specified in clause (h) or (i) of Section 6.01 with respect to
the Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of the outstanding Securities by notice in writing
to the Issuer (and to the Trustee if given by the Holders) may declare the
unpaid Accreted Value of and accrued and unpaid interest to the date of
acceleration on all the outstanding Securities to be due and payable immediately
and, upon any such declaration, such Accreted Value and accrued and unpaid
interest shall become immediately due and payable.
If an Event of Default specified in clause (h) or (i) of Section 6.01
with respect to the Issuer occurs, the Accreted Value of all outstanding
Securities shall ipso facto become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder thereof.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due in respect of the Securities has been obtained by
the Trustee, the Holders of not less than a majority in aggregate principal
amount of the Securities then outstanding by written notice to the Issuer and
the Trustee may rescind and annul such declaration and its consequences if (a)
the Issuer has paid or deposited with the Trustee a sum sufficient to pay (i)
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, (ii) all overdue interest on all Securities then outstanding, (iii)
the Accreted Value of and premium, if any, on any Securities then outstanding
which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities and (iv) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate
borne by the Securities; (b) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction; and (c) all Events of Default,
other than the non-declaration of
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acceleration, have been cured or waived as provided in this Indenture. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
the Accreted Value of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04 Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the then outstanding Securities, on behalf of all
the Holders, by written notice to the Trustee may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium on, if any, or interest on any Security as specified in
clauses (a) and (b) of Section 6.01 or a Default in respect of any term or
provision of this Indenture that may not be amended or modified without the
consent of each Holder affected as provided in Section 10.02. The Issuer shall
deliver to the Trustee an Officer's Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents. In case of any such waiver, the Issuer, the Trustee and the Holders
shall be restored to their former positions and rights hereunder and under the
Securities, respectively. This paragraph of this Section 6.04 shall be in lieu
of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is
hereby expressly excluded from this Indenture and the Securities, as permitted
by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
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SECTION 6.05 Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount
of the then outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
SECTION 6.06 Limitation on Suits.
Subject to Section 6.07, a Securityholder may not pursue any remedy
with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities make a written request to the Trustee to pursue a
remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 15 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 15-day period the Holders of a majority in principal
amount of the then outstanding Securities (excluding Affiliates of the Issuer)
do not give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
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SECTION 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium on, if any, or interest on
the Security, on or after the respective due dates expressed in the Security
(subject to Articles Eight and Twelve), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer
or any other obligor on the Securities for the whole amount of the Accreted
Value and accrued interest remaining unpaid, together with interest overdue on
the Accreted Value and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Issuer (or any other obligor
upon the Securities), their creditors or its property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Securityholder 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 Securityholders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder 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 Securityholder
in any such proceeding.
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SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
(a) First: to the Trustee for amounts due under Section 7.07;
(b) Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
(c) Third: to the Issuer.
The Trustee, upon prior written notice to the Issuer, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11 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 in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 shall not apply
to a suit by the Trustee, a suit by a Holder or group of Holders of more than
10% in aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for the enforcement or the payment of the principal or
interest on any Securities on or after the respective due dates expressed in the
Security.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in
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their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of
such duties as are specifically set forth herein and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions conforming to the
requirements of this Indenture; however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity reasonably satisfactory
to it against such risk, liability, loss, fee or expense which might be incurred
by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Issuer. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
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SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officer's Certificate or Opinion of
Counsel.
(c) The Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(d) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(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 Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney.
(g) The Trustee may execute any of its trusts or powers or perform any
duties under this Indenture either directly or by or through agents or
attorneys, and may in all cases pay, subject to reimbursement as provided in
Section 7.07, such reasonable compensation as it deems proper to all such agents
and attorneys reasonably employed or retained by it, and the
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Trustee shall not be responsible for any misconduct or negligence of any agent
or attorney appointed with due care by it.
(h) The Trustee is not required to take notice or deemed to have notice
of any default or Event of Default hereunder, except Events of Default under
Section 6.01(a) and 6.01(b), unless a Trust Officer of the Trustee has actual
knowledge thereof or has received notice in writing of such default or Event of
Default from the Issuer or from the holders of at least 25% in aggregate
principal amount of the Outstanding Securities, and in the absence of any such
notice, the Trustee may conclusively assume that no such default or Event of
Default exists.
(i) The Trustee is not required to give any bond or surety with respect
to the performance of its duties or the exercise of its powers under this
Indenture.
(j) In the event the Trustee receives inconsistent or conflicting
requests and indemnity from two or more groups of holders of Securities, each
representing less than a majority in aggregate principal amount of such
securities outstanding, pursuant to the provisions of this Indenture, the
Trustee, in its sole discretion, may determine what action, if any, shall be
taken.
(k) The Trustee's immunities and protections from liability and its
right to indemnification in connection with the performance of its duties under
this Indenture shall extend to the Trustee's officers, directors, agents,
attorneys and employees. Such immunities and protections and right to
indemnification shall survive the Trustee's resignation or removal, the
discharge of this Indenture and final payment of the Securities.
(l) The permissive right of the Trustee to take the actions permitted
by this Indenture shall not be construed as an obligation or duty to do so.
(m) Except for information provided by the Trustee concerning the
Trustee, the Trustee shall have no responsibility for any information in any
offering memorandum or other disclosure material distributed with respect to the
Securities, and the Trustee shall have no responsibility for compliance with any
state or federal securities laws in connection with the Securities.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuer or its
Affiliates with the same rights it would
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have if it were not Trustee. The Trustee, in its commercial banking or in any
other capacity, may also engage in or be interested in any financial or other
transaction with the Issuer and may act as depository, trustee or agent for any
committee of Securityholders secured hereby or other obligations of the Issuer
as freely as if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11. The provisions of
this Section 7.03 shall apply to Affiliates of the Trustee and any agent.
SECTION 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Issuer's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuer in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 30 days
after the occurrence thereof. Except in the case of a Default or an Event of
Default in payment of principal of or interest on any Security or a Default or
Event of Default in complying with Section 5.01, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of Securityholders.
This Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA
and such proviso to Section 315(b) of the TIA is hereby expressly excluded from
this Indenture and the Securities, as permitted by the TIA.
SECTION 7.06 Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each June 15
beginning with the June 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such June 15 that
complies with TIA Section 313(a); provided, however, that, if no event under TIA
Section 313(a) has occurred in a 12 month period, no such report need be
transmitted. The Trustee also shall comply with TIA Section 313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
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The Issuer shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.07 Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time such compensation
as the Issuer and the Trustee shall from time to time agree in writing for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including reasonable fees, disbursements and expenses of its agents
and counsel) incurred or made by it in addition to the compensation for its
services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel and any taxes or other expenses
incurred by a trust created pursuant to Section 9.01 hereof.
The Issuer shall indemnify the Trustee for, and hold it harmless
against any and all loss, damage, claims, liability or expense, including taxes
(other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith. The Trustee
shall notify the Issuer promptly of any claim asserted against the Trustee for
which it may seek indemnity. However, the failure by the Trustee to so notify
the Issuer promptly shall not relieve the Issuer of its obligations hereunder
except to the extent that the Issuer is materially prejudiced thereby. The
Issuer shall defend the claim and the Trustee shall cooperate in the defense
(and may employ its own counsel) at the Issuer's expense; provided, however,
that the Issuer's reimbursement obligation with respect to counsel employed by
the Trustee will be limited to the reasonable fees of such counsel. The Issuer
need not pay for any settlement made without its written consent, which consent
shall not be unreasonably withheld. The Issuer need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee as a result of
the violation of this Indenture by the Trustee.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in
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its capacity as Trustee, except money or property held in trust to pay principal
of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Issuer's obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Issuer's obligations pursuant to
Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuer in
writing. The Holders of a majority in principal amount of the then outstanding
Securities may remove the Trustee by so notifying the Trustee and the Issuer in
writing and may appoint a successor Trustee with the Issuer's consent. The
Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the
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successor Trustee shall have the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of at least 10% in aggregate principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Seven shall become effective until
the acceptance of appointment by the successor Trustee under Section 7.08.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee,
provided such corporation shall be otherwise qualified and eligible under this
Article Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA Section 310(b), the
Trustee and the Issuer shall comply with the provisions of TIA Section 310(b).
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinbefore specified in this Article Seven.
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SECTION 7.11 Preferential Collection of Claims Against Issuer.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
[INTENTIONALLY OMITTED]
SECTION 8.01 [Intentionally Omitted.]
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance and Covenant Defeasance.
The Issuer may terminate its substantive obligations in respect of the
Securities by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by it on account of principal of and
interest on all Securities or otherwise. In addition to the foregoing, the
Issuer may, provided that no Default or Event of Default has occurred and is
continuing or would arise therefrom (or, with respect to a Default or Event of
Default specified in Section 6.01(h) or (i), any time on or prior to the 91st
calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 91st day)) and provided
that no default under any Senior Indebtedness would result therefrom, terminate
its substantive obligations in respect of the Securities (except for its
obligations to pay the principal of and interest on the Securities) by (i)
depositing with the Trustee, under the terms of an irrevocable trust agreement,
money or direct non-callable obligations of the United States of America for the
payment of which the full faith and credit of the United States is pledged
("United States Government Obligations") sufficient (without reinvestment) to
pay all remaining Indebtedness on the Securities, (ii) delivering to the Trustee
either an Opinion of Counsel or a ruling directed to the Trustee from the
Internal Revenue Service to the effect that the Holders of the Securities will
not recognize income, gain or loss for federal income tax purposes solely as a
result of such deposit and termination of obligations, (iii) delivering to the
Trustee an Opinion of Counsel to the effect that the Issuer's exercise of its
option under this paragraph will not result in the Issuer, the Trustee or the
trust created by the Issuer's deposit of funds pursuant to this provision
becoming or being deemed to be an "investment company"
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under the Investment Company Act of 1940, as amended, and (iv) delivering to the
Trustee an Officer's Certificate and an Opinion of Counsel each stating
compliance with all conditions precedent provided for herein. In addition, with
respect to the creation of the defeasance trust provided for in the following
clause (i), the Issuer may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect to a
Default or Event of Default specified in Section 6.01(h) or (i), any time on or
prior to the 91st calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
91st day)) and provided that no default under any Senior Indebtedness would
result therefrom, terminate all of its substantive obligations in respect of the
Securities (including its obligations to pay the principal of and interest on
the Securities) by (i) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or United States Government Obligations
sufficient (without reinvestment) to pay all remaining Indebtedness on the
Securities, (ii) delivering to the Trustee either a ruling directed to the
Trustee from the Internal Revenue Service to the effect that the Holders of the
Securities will not recognize income, gain or loss for federal income tax
purposes solely as a result of such deposit and termination of obligations or an
Opinion of Counsel based upon such a ruling addressed to the Trustee or a change
in the applicable Federal tax law since the date of this Indenture to such
effect, (iii) delivering to the Trustee an Opinion of Counsel to the effect that
the Issuer's exercise of its option under this paragraph will not result in any
of the Issuer, the Trustee or the trust created by the Issuer's deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (iv)
delivering to the Trustee an Officer's Certificate and an Opinion of Counsel
each stating compliance with all conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Issuer's obligations in
Sections 2.03, 2.05, 2.06, 2.07, 4.01 (but not with respect to termination of
substantive obligations pursuant to the third sentence of the foregoing
paragraph), 4.02, 7.07, 7.08, 9.03 and 9.04 shall survive until the Securities
are no longer outstanding. Thereafter the Issuer's obligations in Sections 7.07,
9.03 and 9.04 shall survive.
After such delivery or irrevocable deposit and delivery of an Officer's
Certificate and Opinion of Counsel, the Trustee upon request shall acknowledge
in writing the discharge of the Issuer's obligations under the Securities and
this Indenture except for those surviving obligations specified above.
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SECTION 9.02 Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities.
SECTION 9.03 Repayment to Issuer.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to
the Issuer upon written request any excess money held by it at any time. The
Trustee shall pay to the Issuer upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
may at the expense of the Issuer cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Issuer. After payment to the Issuer, Securityholders entitled
to money must look to the Issuer for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of
the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 9.04 Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 9.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer'
and the Subsidiary Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Issuer has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or United States Government
Obligations held by the Trustee.
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ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 Without Consent of Holders.
The Issuer, when authorized by a resolution of the Board of Directors
and the Trustee may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency; provided, however,
that such amendment or supplement does not materially and adversely affect the
rights of any Holder under this Indenture or the Securities;
(b) to effect the assumption by a successor Person of all obligations
of the Issuer under the Securities and this Indenture in connection with any
transaction complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to or in place
of certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or
rights to the Holders;
(f) to make any other change that does not materially and adversely
affect the rights of any Holder under this Indenture or the Securities;
(g) [Intentionally Omitted]
(h) to add to the covenants of the Issuer for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Issuer;
(i) to add guarantees with respect to the subsidiaries; or
(j) to secure the Securities pursuant to the requirements of Section
4.18 or otherwise;
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SECTION 10.02 With Consent of Holders.
Subject to Section 6.07, the Issuer, when authorized by a resolution of
the Board of Directors, and the Trustee may amend or supplement this Indenture
or the Securities with the written consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Securities. Subject to
Section 6.07, the Holders of a majority in aggregate principal amount of the
then outstanding Securities, on behalf of all Holders, may waive compliance by
the Issuer with any provision of this Indenture or the Securities. However,
without the consent of each Securityholder affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(a) change or extend the fixed maturity of the Securities, reduce the
rate or extend the time of payment of interest thereon, reduce the principal
amount thereof or premium, if any, thereon or change the currency in which the
Securities are payable;
(b) reduce the premium payable upon any redemption of Securities in
accordance with the optional redemption provisions of the Securities or change
the time before which no such redemption may be made;
(c) waive a default in the payment of principal or interest on the
Securities (except that holders of a majority in aggregate principal amount of
the Securities at the time outstanding may (a) rescind an acceleration of the
Securities that resulted from a non-payment default and (b) waive the payment
default that resulted from such acceleration) or alter the rights of
Securityholders to waive defaults;
(d) modify any provisions of Section 6.04 (other than to add sections
of this Indenture or the Securities subject thereto) or 6.07 or this Section
10.02 (other than to add sections of this Indenture or the Securities which may
not be amended, supplemented or waived without the consent of each
Securityholder affected);
(e) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any provision
of this Indenture or the Securities or for waiver of any Default;
(f) modify the ranking or priority of the Securities, or modify the
definition of Senior Indebtedness; or
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(g) modify the provisions relating to any Offer required pursuant to
Section 4.05 or Change of Control Offer required pursuant to Section 4.14 in a
manner materially adverse to the Holders.
An amendment under this Section 10.02 may not make any change under
Article Nine hereof that adversely affects in any material respect the rights of
any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any agent or representative thereof authorized to give a
consent) shall have consented to such change in writing.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuer shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuer to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 10.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.04 Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then those persons who were
Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or waiver
whether or not such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(a) through (g) of Section 10.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 10.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Issuer or the Trustee
so determines, the Issuer in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.06 Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Issuer and the
Subsidiary Guarantors, enforceable in accordance with its terms (subject to
customary exceptions). The Trustee may, but shall not (except to the extent
required in the case of a supplemental indenture entered into pursuant to
Section 10.01(d)) be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
[INTENTIONALLY OMITTED]
SECTION 11.01 [Intentionally Omitted.]
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ARTICLE TWELVE
[INTENTIONALLY OMITTED]
SECTION 12.01 [Intentionally Omitted.]
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 13.02 Notices.
Any notice or communication required or permitted to be given under
this Indenture shall be sufficiently given if in writing and delivered in
person, by facsimile and confirmed by overnight courier, or mailed by
first-class mail addressed as follows:
if to the Issuer:
Classic Communications, Inc.
000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Seach
Title: President & Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Notwithstanding the foregoing, notices to the Trustee shall be effective only
upon receipt.
Any notice or communication mailed, first class, postage prepaid, to a
Securityholder, including any notice delivered in connection with TIA Section
310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be
mailed to him at his address as set forth on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed. To the extent required by the TIA, any notice or communication shall
also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 13.03 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Issuer, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or
refrain from taking any action under this Indenture, the Issuer shall furnish to
the Trustee at the request of the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officer's
Certificate or certificates of public officials.
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SECTION 13.06 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.07 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 13.08 No Recourse Against Others.
A director, officer, employee, incorporator, limited or general partner
or stockholder, as such, of the Issuer shall not have any liability for any
obligations of the Issuer under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability.
SECTION 13.09 Successors.
All agreements of the Issuer in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 13.10 Counterpart Originals.
The parties may sign any number of counterparts of this Indenture. Each
signed counterpart shall be an original, but all of them together represent the
same agreement.
SECTION 13.11 Severability.
In case any provision in this Indenture and 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,
and a Holder shall have no claim therefor against any party hereto.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Issuer or a Subsidiary of Issuer. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
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SECTION 13.13 Legal Holidays.
If a payment date occurs on a day that is not a Business Day at a place
of payment, payment may be made at that place on the next succeeding day that is
a Business Day, and no interest shall accrue for the intervening period.
[Signature Pages Follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
CLASSIC COMMUNICATIONS, INC.,
as Issuer
By: /s/ Xxxxxx X. Seach
-----------------------------------
Name: Xxxxxx X. Seach
Title: President and Chief Financial
Officer
BANK ONE, N.A., as Trustee
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
