INDENTURE, dated as of December 22, 1997 between Ascent Entertainment Group,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), and The Bank of New York, a New York
banking corporation, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of 11f% Senior
Secured Discount Notes Due 2004 (herein called the "Initial Senior Notes"), and
11f% Series B Senior Secured Discount Notes Due 2004 (the "Exchange Senior
Notes" and, together with the Initial Senior Notes, the "Senior Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
Upon the issuance of the Exchange Senior Notes, if any, or the effectiveness of
the Shelf Registration Statement (as defined herein), this Indenture will be
subject to the provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
All things necessary have been done to make the Senior Notes, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of the Company, each in accordance with their respective terms and to
secure the Senior Notes in accordance with the Pledge Agreement (as defined
herein).
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Senior Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper", as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Articles Two, Eight, Ten and Twelve are
defined in those Articles.
"Accreted Value" as of any date (the "Specified Date") means, with respect to
each $1,000 principal amount at maturity of Senior Notes:
(i) if the Specified Date is one of the following dates (each a
"Semi-Annual Accrual Date"), the amount set forth opposite such date below:
SEMI-ANNUAL ACCRETED
ACCRUAL DATE VALUE
------------ -----
Issue Date $562.95
-------
June 15, 1998 595.05
-- ------
December 15, 1998 630.38
-- ------
June 15, 1999 667.81
-- ------
December 15 , 1999 707.46
-- ------
June 15, 2000 749.47
-- ------
December 15, 2000 793.97
-- ------
June 15, 2001 841.11
-- ------
December 15, 2001 891.05
-- ------
June 15, 2002 943.95
-- ------
December 15, 2002 $1,000.00
--
(ii) if the Specified Date occurs between two Semi-Annual Accrual Dates, the
sum of (a) the Accreted Value for the Semi-Annual Accrual Date immediately
preceding the Specified Date and (b) an amount equal to the product of (x) the
Accreted Value for the immediately following Semi-Annual Accrual Date less the
Accreted Value for the immediately preceding Semi-Annual Accrual Date and (y) a
fraction, the numerator of which is the number of days actually elapsed from the
immediately preceding Semi-Annual Accrual Date to the Specified Date and the
denominator of which is 180; and
(iii) if the Specified Date is after December 15, 2002, $1,000.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the time
such Person is merged with or into the Company or becomes a Subsidiary or (b)
assumed in connection with the acquisition of assets from such Person.
"Act", when used with respect to any Holder, has the meaning specified in
Section 105.
"Affiliate" means, with respect to any specified Person (i) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (i) any other person that owns,
directly or indirectly, 10% or more of such specified Person's Capital Stock or
any executive officer or director of any such specified Person or other Person
or, with respect to any natural Person, any Person having a relationship with
such Person by blood, marriage or adoption not more remote than first cousin.
For the purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Premium" means, with respect to a Senior Note (or portion thereof)
being repurchased at any time pursuant to the provisions of Section 1009, the
excess of (A) the present value at the repurchase date of the redemption price
at December 15, 2001 of such Senior Note (or portion thereof) being repurchased,
which present value shall be computed using a discount rate equal to the
Treasury Rate plus 100 basis points, over (B) the Accreted Value as of the
redemption date of such Senior Note (or portion thereof) being redeemed. For
purposes of this definition, the present values of the interest and principal
payments will be determined in accordance with generally accepted principles of
financial analysis.
"Arena Agreement" means the 1997 Denver Arena Agreement between the Company and
the City of Denver for the construction, ownership and management by the Company
of the Pepsi Center.
"Arena Company" means the Ascent Arena Company, LLC, a Colorado limited
liability company 100% directly and indirectly owned by the Company.
"Arena Notes" means the approximately $100,000,000 to $130,000,000 of notes
issued by the Arena Company in order to finance the Pepsi Center, which are
secured by all of the assets of the Arena Company, including the Pepsi Center,
and by the revenues of the Pepsi Center, including corporate sponsorships.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition
of any assets or rights (including, without limitation, by way of merger,
consolidation or similar arrangement) (collectively, a "transfer") by the
Company or any Restricted Subsidiary other than in the ordinary course of
business, and (ii) the issue or sale by the Company or any of its Restricted
Subsidiaries of shares of Capital Stock of any of the Company's Restricted
Subsidiaries (which shall be deemed to include the sale, grant or conveyance of
any interest in the income, profits or proceeds therefrom), in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions, (x) that have a fair market value in excess of $1,000,000
or (y) for Net Cash Proceeds in excess of $1,000,000. For the purposes of this
definition, the term "Asset Sale" does not include any transfer of properties or
assets (a) that is governed by the provisions of this Indenture described under
Article Eight, (b) between or among the Company and its Restricted Subsidiaries
pursuant to transactions that do not violate any other provision of this
Indenture, (c) representing obsolete or permanently retired equipment and
facilities, (d) to an Unrestricted Subsidiary, if permitted under Section 1011,
(e) that comprises a Collateral Sale, (f) the sale of accounts receivable for
cash at fair market value or (g) in an exchange by OCC of operating rights and
related assets associated with hotel rooms installed with OCC in-room video
entertainment systems for operating rights and related assets associated with
hotel rooms installed with a competitor' in-room video entertainment systems.
"Average Life" means, as of the date of determination with respect to any
Indebtedness or Disqualified Stock, the quotient obtained by dividing (a) the
sum of the products of (i) the number of years from the date of determination to
the date or dates of each successive scheduled principal or liquidation value
payment of such Indebtedness or Disqualified Stock, respectively, multiplied by
(ii) the amount of each such principal or liquidation value payment by (b) the
sum of all such principal or liquidation value payments.
"Bank Credit Facilities" means the New Ascent Credit Facility and the New OCC
Credit Facility.
"Beacon" means Beacon Communications Corp., a Delaware corporation and wholly
owned Restricted Subsidiary of the Company.
"Board of Directors" means either the board of directors of the Company or OCC
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Capital Stock" of any person means any and all shares, interests, partnership
interests, participations, rights in or other equivalents (however designated)
of such person's equity interest (however designated), whether now outstanding
or issued after the Issue Date.
"Capitalized Lease Obligation" means, with respect to any Person, an obligation
incurred or assumed under or in connection with any capital lease of real or
personal property that, in accordance with GAAP, has been recorded as a
capitalized lease.
"Cash Equivalents" means (i) cash equivalents as determined in accordance with
GAAP and (ii) the principal amount of any Indebtedness for money borrowed (as
reflected in the Company's consolidated balance sheet) of the Company or any
Restricted Subsidiary that (x) is assumed by the transferee of any such assets
or other property in an Asset Sale or Collateral Sale, as applicable, or (y)
with respect to the sale or other disposition of all of the Capital Stock of any
Restricted Subsidiary, remains the liability of such Subsidiary subsequent to
such sale or other disposition, but only to the extent that such assumption,
sale or other disposition, as the case may be, is effected on a basis under
which there is no further recourse to the Company or any of its Restricted
Subsidiaries with respect to such liability.
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of more than 35% of the
voting power of all classes of Voting Stock of the Company;
(b) the Company, either individually or in conjunction with one or more
Subsidiaries, sells, assigns, conveys, transfers, leases or otherwise disposes
of, or the Subsidiaries sell, assign, convey, transfer, lease or otherwise
dispose of, all or substantially all of the properties of the Company and the
Subsidiaries, taken as a whole (either in one transaction or a series of related
transactions), including Capital Stock of the Subsidiaries, to any Person (other
than the Company or a Restricted Subsidiary);
(c) during any consecutive two-year period, individuals who at the beginning
of such period constituted the Board of Directors of the Company (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved)
cease for any reason to constitute a majority of the Board of Directors of the
Company then in office; or
(d) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution, other than in a transaction that complies with the provisions
described under Article Eight.
"Collateral" means (i) the Pledged Stock and (ii) any other current or future
assets of the Company or its Subsidiaries defined as "Collateral" in the Pledge
Agreement.
"Collateral Sale" has the meaning specified in Section 1009.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act of 1934, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares, interests,
participations and other equivalents (however designated, whether voting or
non-voting) of such Person's Common Stock, whether now outstanding or issued
after the date of this Indenture, and includes, without limitation, all series
and classes of such Common Stock.
"Company" means the Person named as the "Company" in the first paragraph of this
Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed in
the name of the Company by its Chairman, its President, any Vice President, its
Treasurer or an Assistant Treasurer, and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the net income (or net
loss) of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by excluding (a) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (b) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, (c) the portion of net income (or
loss) of any person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash during such period, (d) the net income (or loss) of any
person combined with the Company or any Restricted Subsidiary on a "pooling of
interests" basis attributable to any period
prior to the date of combination and (e) the net income (but not the net loss)
of any Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary is at the date
of determination restricted, directly or indirectly, except to the extent that
such net income is actually paid to the Company or a Restricted Subsidiary
thereof by loans, advances, intercompany transfers, principal repayments or
otherwise; PROVIDED that, if any Restricted Subsidiary is not a Wholly Owned
Restricted Subsidiary, Consolidated Adjusted Net Income will be reduced (to the
extent not otherwise reduced in accordance with GAAP) by an amount equal to (A)
the amount of the Consolidated Adjusted Net Income otherwise attributable to
such Restricted Subsidiary multiplied by (B) the quotient of (1) the number of
shares of outstanding common stock of such Restricted Subsidiary not owned on
the last day of such period by the Company or any of its Restricted Subsidiaries
divided by (2) the total number of shares of outstanding common stock of such
Restricted Subsidiary on the last day of such period.
"Consolidated EBITDA" means, for any period, the sum of, without duplication,
Consolidated Adjusted Net Income for such period, plus (or, in the case of
clause (d) below, plus or minus) the following items to the extent included in
computing Consolidated Adjusted Net Income for such period (a) Consolidated
Fixed Charges for such period, plus (b) the provision for federal, state, local
and foreign income taxes of the Company and its Restricted Subsidiaries for such
period, plus (c) the aggregate depreciation and amortization expense (excluding
film amortization expense) of the Company and its Restricted Subsidiaries for
such period, plus (d) any other non-cash charges for such period, and minus
non-cash credits for such period, other than non-cash charges or credits
resulting from changes in prepaid assets or accrued liabilities in the ordinary
course of business; PROVIDED that fixed charges, income tax expense,
depreciation and amortization expense and non-cash charges and credits of a
Restricted Subsidiary will be included in Consolidated EBITDA only to the extent
(and in the same proportion) that the net income of such Subsidiary was included
in calculating Consolidated Adjusted Net Income for such period.
"Consolidated Net Worth" means, at any date of determination, stockholders'
equity of the Company and its Restricted Subsidiaries as set forth on the most
recently available quarterly or annual consolidated balance sheet of the Company
and its Restricted Subsidiaries, less any amounts attributable to Disqualified
Stock or any equity security convertible into or exchangeable for Indebtedness,
the cost of treasury stock and the principal amount of any promissory notes
receivable from the sale of the Capital Stock of the Company or any of its
Restricted Subsidiaries and less to the extent included in calculating such
stockholders' equity of the Company and its Restricted Subsidiaries, the
stockholders' equity attributable to Unrestricted Subsidiaries, each item to be
determined in conformity with GAAP (excluding the effects of foreign currency
adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
"Consolidated Tangible Assets" means, as of the date of determination, the total
assets, less goodwill and other intangibles shown on the balance sheet of the
Company and its Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, companies and business
trusts.
"Cumulative OCC EBITDA" means at any date of determination the cumulative amount
of OCC Consolidated EBITDA from and after the first day of the first fiscal
quarter commencing after the date of this Indenture to the end of the fiscal
quarter immediately preceding the date of determination or, if such cumulative
OCC Consolidated EBITDA for such period is negative, the amount (expressed as a
negative number) by which such cumulative OCC Consolidated EBITDA is less than
zero.
"Cumulative OCC Fixed Charges" means at any date of determination the aggregate
amount of OCC Fixed Charges paid, accrued or scheduled to be paid or accrued by
OCC and its Restricted Subsidiaries from and after the first day of the first
fiscal quarter commencing after the date of this Indenture to the end of the
fiscal quarter immediately preceding the date of determination.
"Current Market Price", when used with respect to the shares of Common Stock of
OCC as of any date of determination, means the average of the averages of the
high and low sales prices for such shares on the principal national security
exchange or quotation system on which such shares are quoted or listed or
admitted to trading, or, if not quoted or listed or admitted to trading on any
national securities exchange or quotation system, the average of the closing bid
and asked prices of such security on the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or if not so available, in such manner as
furnished by any National Association of Securities Dealers, Inc. member firm
selected from time to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution, in each case for the
ten consecutive Trading Days ending on the third Trading Day prior to such date
of determination.
"Default" means any event that is, or after notice or passage of time or both
would be, an Event of Default.
"Default Amount" means (i) as of any date prior to December 15, 2002, the
Accreted Value of the Senior Notes (plus any premium thereon) as of such date
and (ii) as of any date on or after December 15, 2002, 100% of the principal
amount at maturity of the Senior Notes (plus any applicable premium thereon).
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees and successors.
"Disinterested Director" means, with respect to any transaction or series of
transactions in respect of which the Board of Directors is required to deliver a
resolution of the Board of Directors, to make a finding or otherwise take action
under this Indenture, a member of the Board of Directors who does not have any
material direct or indirect financial interest in or with respect to such
transaction or series of transactions.
"Disqualified Stock" means any class or series of Capital Stock that, either by
its terms, by the terms of any security into which it is convertible or
exchangeable or by contract or otherwise (i) is or upon the happening of an
event or passage of time would be, required to be redeemed prior to the final
Stated Maturity of the Senior Notes, (ii) is redeemable at the option of the
holder thereof, at any time prior to such final Stated Maturity or (iii) at the
option of the holder thereof is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity; PROVIDED that any
Capital Stock that would not constitute Disqualified Stock but for provisions
therein giving holders thereof the right to cause the issuer thereof to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the Stated Maturity of the Senior
Notes will not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more favorable to
the holders of such Capital Stock than the provisions contained in the covenants
described under Sections [1009,] 1015 and 1016 and such Capital Stock
specifically provides that the issuer will not repurchase or redeem any such
stock pursuant to such provision prior to the Company's repurchase of such
Senior Notes as are required to be repurchased pursuant to the provisions
contained in the covenants described under Sections [1009,] 1015 and 1016.
"Equity Offering" means a public or private offering of Capital Stock (other
than Disqualified Stock).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended.
"Exchange Senior Notes" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Senior Notes containing terms substantially
identical to the Initial Senior Notes (except that such Exchange Senior Notes
shall not contain terms with respect to the interest rate step-up provision and
transfer restrictions) that are issued and exchanged for the Initial Senior
Notes pursuant to the Registration Right Agreement and this Indenture.
"Exchange Offer" means the exchange offer that may be effected pursuant to the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer Registration
Statement as defined in the Registration Rights Agreement.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the United
States Code, as amended from time to time.
"Fixed Charge Coverage Ratio" means for any period, the ratio of Consolidated
EBITDA for such period to the Fixed Charges of such period.
"Fixed Charges" means, for any period, without duplication, the sum of (a) the
amount that, in conformity with GAAP, would be set forth opposite the caption
"interest expense" (or any like caption) on a consolidated statement of
operations of the Company and its Restricted Subsidiaries for such period,
including, without limitation, (i) amortization of debt discount, (ii) the net
cost of interest rate contracts (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) amortization of debt
issuance costs and (v) the interest component of Capitalized Lease Obligations,
plus (b) cash dividends paid on Preferred Stock and Disqualified Stock by the
Company and any Restricted Subsidiary (to any person other than the Company and
its Restricted Subsidiaries), computed on a tax effected basis, plus (c) all
interest on any Indebtedness of any person guaranteed by the Company or any of
its Restricted Subsidiaries or secured by a lien on the assets of the Company or
any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that Fixed Charges will
not include (i) any gain or loss from extinguishment of debt, including the
write-off of debt issuance costs, (ii) the fixed charges of a Restricted
Subsidiary to the extent (and in the same proportion) that the net income of
such Subsidiary was excluded in calculating Consolidated Adjusted Net Income
pursuant to clause (e) of the definition thereof for such period and (iii)
interest expense incurred in connection with the Non-Recourse Arena Financing
and any Non-Recourse Film Indebtedness.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, as applied from time to
time by the Company in the preparation of its consolidated financial statements,
except that with respect to calculating compliance with financial covenants,
GAAP shall mean generally accepted accounting principles in the United States,
consistently applied, that are in effect on the Issue Date.
"Guarantor" means any Restricted Subsidiary of the Company that issues a
guarantee of the Senior Notes pursuant to the provisions of Section 1021.
"Hedging Obligations" means the obligations of any Person under (i) interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or the value of foreign
currencies.
"Holder" means a Person in whose name a Senior Note is registered in the
Register.
"Indebtedness" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (a) every obligation of such Person for money borrowed, (b) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, (c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (d) every obligation of such Person issued or assumed as
the deferred purchase price of property or services, (e) the attributable value
of every Capitalized Lease Obligation of such Person, (f) all Disqualified Stock
of such Person valued at its maximum fixed repurchase price, plus accrued and
unpaid dividends, (g) all obligations of such Person under or in respect of
Hedging Obligations and (h) every obligation of the type referred to in clauses
(a) through (g) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed. For purposes of
this definition, the "maximum fixed repurchase price" of any Disqualified Stock
that does not have a fixed repurchase price will be calculated in accordance
with the terms of such Disqualified Stock as if such Disqualified Stock were
purchased on any date on which Indebtedness is required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
fair market value of such Disqualified Stock, such fair market value will be
determined in good faith by the board of directors of the issuer of such
Disqualified Stock. Notwithstanding the foregoing, trade accounts payable and
accrued liabilities arising in the ordinary course of business and any liability
for federal, state or local taxes or other taxes owed by such Person will not be
considered Indebtedness for purposes of this definition.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company and any other
obligor hereunder or under the Senior Notes to pay principal of (and premium, if
any) and interest on the Senior Notes when due and payable at maturity, and all
other amounts due or to become due under or in connection with this Indenture,
the Senior Notes and the performance of all other obligations to the Trustee
(including all amounts due to the Trustee under Section 606 hereof) and the
Holders under this Indenture and the Senior Notes, according to the terms hereof
and thereof.
"Initial Senior Notes" has the meaning stated in the first recital of this
Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of interest
on the Senior Notes.
"Investment" in any Person means, (i) directly or indirectly, any advance, loan
or other extension of credit (including, without limitation, by way of guarantee
or similar arrangement) or capital contribution to such Person, the purchase or
other acquisition of any stock, bonds, notes, debentures or other securities
issued by such Person, the acquisition (by purchase or otherwise) of all or
substantially all of the business or assets of such Person, or the making of any
investment in such Person, (ii) the designation of any Restricted Subsidiary as
an Unrestricted Subsidiary and (iii) the fair market value of the Capital Stock
(or any other Investment), held by the Company or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary. Investments exclude extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices.
"Issue Date" means the date on which the Senior Notes are originally issued
under this Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any property
of any kind, real or personal, movable or immovable, now owned or hereafter
acquired. A person will be deemed to own subject to a Lien any property that
such person has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement.
"Maturity", when used with respect to any Note, means the date on which
the principal of such Senior Note or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale or Collateral Sale,
the proceeds thereof in the form of cash or cash equivalents, including payments
in respect of deferred payment obligations when received in the form of, or
stock or other assets when disposed for, cash or cash equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (a) brokerage commissions and other fees
and expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale or Collateral Sale, (b) provisions for all taxes
payable as a result of such Asset Sale or Collateral Sale, (c) payments made to
retire Indebtedness where such Indebtedness is secured by the assets that are
the subject of such Asset Sale, (d) amounts required to be paid to any person
(other than the Company or any Restricted Subsidiary) owning a beneficial
interest in the assets that are subject to the Asset Sale and (e) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale or Collateral Sale and retained by the seller
after such Asset Sale or Collateral Sale, including pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale or Collateral Sale.
"New Ascent Credit Facility" means that Second Amended and Restated Credit
Agreement entered into no later than the Issue Date among the Company, the
lenders named therein and NationsBank of Texas, N.A., as agent, as such
agreement may be amended, restated, supplemented, refinanced or otherwise
modified from time to time.
"New OCC Credit Facility" means the First Amended and Restated Credit Agreement
dated as of November 19, 1997, among OCC, the lenders named therein and
NationsBank of Texas, N.A., as agent, as such agreement may be amended,
restated, supplemented, refinanced or otherwise modified from time to time.
"Non-Recourse Arena Financing" shall mean Indebtedness incurred by the Arena
Company in connection with the financing of the Pepsi Center (i) as to which
neither the Company nor any Restricted Subsidiary of the Company (other than the
Arena Company) (A) provides credit support (including any undertaking, agreement
or instrument which would constitute Indebtedness) or has given or made other
written assurances regarding repayment, (B) is directly or indirectly personally
liable or
(C) constitutes the lender and (ii) the obligees of which will have recourse
for repayment of the principal of and interest on such Indebtedness and any
fees, indemnities, expense reimbursements or other amount of whatever nature
accrued or payable in connection with such Indebtedness solely against the
assets comprising such project (including rights of the Arena Company, under
contracts to which the Arena Company is party, such as a lessor under leases
thereto) for repayment of the principal of and interest on such Indebtedness and
fees, indemnities, expense reimbursements or other amounts of whatever nature
accrued or payable in connection with such Indebtedness.
"Non-Recourse Film Indebtedness" shall mean Indebtedness of Beacon or its
Restricted Subsidiaries incurred solely for the purpose of financing motion
pictures (i) as to which neither the Company nor any Restricted Subsidiary of
the Company (A) provides credit support (including any undertaking, agreement or
instrument which would constitute Indebtedness) or has given or made other
written assurances regarding repayment, (B) is directly or indirectly personally
liable or (C) constitutes the lender and (ii) the obligees of which will have
recourse for repayment of the principal of and interest on such Indebtedness and
any fees, indemnities, expense reimbursements or other amount of whatever nature
accrued or payable in connection with such Indebtedness solely against (x) the
negatives for such motion pictures, (y) ownership, distribution or exploitation
rights with respect to such motion pictures or (z) standby letters or credit
constituting Indebtedness which itself qualifies as Non-Recourse Film
Indebtedness.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as defined in
Regulation S.
"OCC" means On Command Corporation, a Delaware corporation, approximately 57%
(46% on a fully diluted basis) of whose outstanding Capital Stock is owned,
directly or indirectly, by the Company as of the date hereof.
"OCC Consolidated Adjusted Net Income" means, for any period, the net income (or
net loss) of OCC and its Restricted Subsidiaries for such period as determined
on a consolidated basis in accordance with GAAP, adjusted to the extent included
in calculating such net income or loss by excluding (a) any net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto), (b)
any net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales, (c) the portion of net income (or loss) of any
person (other than a Restricted Subsidiary), including Unrestricted
Subsidiaries, in which OCC or any of its Restricted Subsidiaries has an
ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to OCC or any such Restricted Subsidiary in cash
during such period, (d) the net income (or loss) of any person combined with OCC
or any of its Restricted Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the
date of combination and (e) the net income (but not the net loss) of any
Restricted Subsidiary of OCC to the extent that the declaration or payment of
dividends of similar distributions of such Restricted Subsidiary is at the date
of determination restricted, directly or indirectly, except to the extent such
net income is actually paid to OCC or a Restricted subsidiary thereof, by loans,
advances, intercompany transfers, principal repayments or otherwise; PROVIDED
that, if any Restricted Subsidiary of OCC is not a Wholly Owned Restricted
Subsidiary, OCC Consolidated Adjusted Net Income will be reduced (to the extent
not otherwise reduced in accordance with GAAP) by an amount equal to (A) the
amount of the OCC Consolidated Adjusted Net Income otherwise attributable to
such Restricted Subsidiary multiplied by (B) the quotient of (1) the number of
shares of outstanding Common Stock of such Restricted Subsidiary not owned on
the last day of such period of OCC or any of its Restricted Subsidiaries divided
by (2) the total number of shares of outstanding Common Stock of such Restricted
Subsidiary on the last day of such period.
"OCC Consolidated EBITDA" means, for any period, the sum of, without
duplication, OCC Consolidated Adjusted Net Income for such period, plus (or, in
the case of clause (d) below, plus or minus) the following items to the extent
included in computing OCC Consolidate Adjusted Net Income for such period: (a)
OCC Consolidated Fixed Charges for such period, plus (b) the provision for
federal, state, local and foreign income taxes of OCC and its Restricted
Subsidiaries of such period, plus (c) the aggregate depreciation and
amortization expense of OCC and its Restricted Subsidiaries for such period,
plus (d) any other non-cash charges for such period, and minus non-cash credits
for such period, other than non-cash charges or credits resulting from changes
in prepaid assets or accrued liabilities in the ordinary course of business;
PROVIDED that fixed charges, income tax expense, depreciation and amortization
expense and non-cash charges and credits of a Restricted Subsidiary will be
included in OCC Consolidated EBITDA only to the extent (and in the same
proportion) that the net income of such Subsidiary was included in calculating
OCC Consolidated Adjusted Net Income for such period.
"OCC Fixed Charge Coverage Ratio" means, for any period, the ratio of OCC
Consolidated EBITDA for such period to OCC Fixed Charges for such period.
"OCC Fixed Charges" means, for any period, without duplication, the sum of (a)
the amount that, in conformity with GAAP, would be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated statement of
operations of OCC and its Restricted Subsidiaries for such period, including,
without limitation, (i) amortization of debt discount, (ii) the net cost of
interest rate contracts (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) amortization of debt
issuance costs and (v) the interest component of Capitalized Lease
Obligations, plus (b) cash dividends paid on Preferred Stock and Disqualified
Stock by OCC or any of its Restricted Subsidiaries (to any person other than the
Company and its Restricted Subsidiaries), computed on a tax effected basis, plus
(c) all interest on any Indebtedness of any person guaranteed by OCC or any of
its Restricted Subsidiaries or secured by a lien on the assets of OCC or any of
its Restricted Subsidiaries; PROVIDED, HOWEVER, that OCC Fixed Charges will not
include (i) any gain or loss from extinguishment of debt, including the
write-off of debt issuance costs, and (ii) the fixed charges of a Restricted
Subsidiary of OCC to the extent (and in the same proportion) that the net income
of such Subsidiary was excluded in calculating OCC Consolidated Adjusted Net
Income pursuant to clause (e) of the definition thereof for such period.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Offshore Global Note" has the meaning specified in Section 201.
"Offshore Physical Note" has the meaning specified in Section 201.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for
the Company, including an employee of the Company, and who shall be acceptable
to the Trustee.
"Outstanding", when used with respect to Senior Notes, means, as of the date of
determination, all Senior Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Senior Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation; and
(b) Senior Notes, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Senior Notes; PROVIDED that, if such Senior Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
(c) Senior Notes, except to the extent provided in Sections 1202 and 1203,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Twelve; and
(d) Senior Notes which have been paid pursuant to Section 308 or in exchange
for or in lieu of which other Senior Notes have been authenticated and delivered
pursuant to this Indenture, other than any
such Senior Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Senior Notes are held by a bona fide
purchaser in whose hands the Senior Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Senior Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Senior Notes
owned by the Company or any other obligor upon the Senior Notes or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Senior Notes which the
Trustee actually knows to be so owned shall be so disregarded. Senior Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Senior Notes and that the pledgee is not the
Company or any other obligor upon the Senior Notes or any Affiliate of the
Company or such other obligor.
"Paying Agent" means The Bank of New York and any successor (including the
Company acting as Paying Agent) authorized by the Company to pay the principal
of (and premium, if any) or interest on any Senior Notes on behalf of the
Company.
"Pepsi Center" means the sports and entertainment arena to be constructed, owned
and operated in Denver, Colorado by the Arena Company pursuant to the Arena
Agreement.
"Permitted Investments" means any of the following:
(a) Investments in (i) securities with a maturity of one year or less issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof); (ii) certificates of deposit or
acceptances with a maturity of one year or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus of not less than $500,000,000; (iii) any shares of money market mutual
or similar funds having assets in excess of $500,000,000; and (iv) commercial
paper with a maturity of one year or less issued by a corporation that is not an
Affiliate of the Company and is organized under the laws of any state of the
United States or the District of Columbia and having a rating (A) from Xxxxx'x
Investors Service, Inc. of at least P-1 or (B) from Standard & Poor's Ratings
Services of at least A-1;
(b) Investments by the Company or any Wholly Owned Restricted Subsidiary in
another person, if as a result of such Investment (i) such other
person becomes a Restricted Subsidiary or (ii) such other person is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its assets to, the Company or a Restricted Subsidiary;
(c) Investments by the Company or a Restricted Subsidiary in the Company or a
Restricted Subsidiary;
(d) Investments in existence on the Issue Date;
(e) promissory notes or other evidences of Indebtedness received as a result
of Asset Sales or Collateral Sales permitted under Sections 1009 and 1016,
respectively:
(f) the making of any Investment by OCC in any Person, so long as the
decision to take such action is approved by the Board of Directors of OCC for a
valid business purpose in the exercise of such Board=s reasonable business
judgment, PROVIDED that the aggregate amount of any such Investments by OCC
shall not exceed $10,000,000 at any time outstanding; and
(g) other Investments that do not exceed $10,000,000 in the aggregate at any
one time outstanding.
"Person" means any individual, corporation, limited or general partnership,
joint venture, association, joint stock company, trust unincorporated
organization or government or any agency or political subdivision thereof.
"Pledge Agreement" means the Collateral Pledge and Security Agreement, dated as
of the Issue Date, between the Company and the Trustee, governing the Collateral
held by the Trustee for the benefit of Holders of Senior Notes, as such
agreement may be amended, restated, supplemented or otherwise modified from time
to time.
"Pledged Stock" means the Capital Stock of a Subsidiary of the Company that is
pledged from time to time to the Trustee pursuant to the Pledge Agreement.
"Pledgor" means the Company and any Subsidiary that is a "Pledgor" under the
Pledge Agreement.
"Predecessor Senior Note" of any particular Senior Note means every previous
Senior Note evidencing all or a portion of the same debt as that evidenced by
such particular Senior Note; and, for the purposes of this definition, any
Senior Note authenticated and delivered under Section 308 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Senior Note shall
be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Senior Note.
"Preferred Stock" means, with respect to any person, any and all shares,
interests, partnership interests, participations, rights in or other equivalents
(however designated) of such person's preferred or preference stock, whether now
outstanding or issued after the Issue Date, and including, without limitation,
all classes and series of preferred or preference stock of such person.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Qualified Equity Interest" means any Qualified Stock and all warrants, options
or other rights to acquire Qualified Stock (but excluding any debt security that
is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any person means any and all Capital Stock of such person,
other than Disqualified Stock.
"Redemption Date", when used with respect to any Senior Note to be redeemed, in
whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Senior Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registrar" and "Note Registrar" have the meaning specified in Section 305.
"Registration Rights Agreement" means the Registration Rights Agreement between
the Company and the Initial Purchasers named therein, dated as of December 22,
1997 relating to the Senior Notes.
"Registration Statement" means the Registration Statement as defined in the
Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the May 31 or November 30 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Repurchase Offer Triggering Event" shall have the meaning set forth in Section
1009.
"Restricted Subsidiary" means (i) any Subsidiary other than an Unrestricted
Subsidiary and (ii) OCC until such time as the Company has repurchased shares of
Common Stock of OCC pursuant to an offer to repurchase the Senior Notes made by
the Company in compliance with the provisions of Section 1009.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time to time,
and the rules and regulations thereunder.
"Senior Notes" has the meaning stated in the first recital of this Indenture and
more particularly means any Senior Notes authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term "Senior Notes" shall
include any Exchange Senior Notes to be issued and exchanged for any Senior
Notes pursuant to the Registration Rights Agreement and this Indenture and, for
purposes of this Indenture, all Initial Senior Notes and Exchange Senior Notes
shall vote together as one series of Senior Notes under this Indenture.
"Shelf Registration Statement" means the Shelf Registration Statement as defined
in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of the Company that
together with its Subsidiaries, (a) for the most recent fiscal year of the
Company, accounted for more than 10% of the consolidated net sales of the
Company and its Subsidiaries or (b) as of the end of such fiscal year, was the
owner of more than 10% of the consolidated assets of the Company and its
Restricted Subsidiaries, in the case of either (a) or (b), as set forth on the
most recently available consolidated financial statements of the Company for
such fiscal year or (c) was organized or acquired after the beginning of such
fiscal year and would have been a Significant Subsidiary if it had been owned
during such entire fiscal year.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, and its successors.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Senior Note or any
installment of interest thereon, the date specified in such Senior Note as the
fixed date on which the principal of such Senior Note or such installment of
interest is due and payable and, when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness or
any installment of interest thereon is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment to the Senior Notes.
"Subsidiary" means any person a majority of the equity ownership or Voting Stock
of which, is at the time owned, directly or indirectly, by
the Company or one or more other Subsidiaries of the Company.
"Trading Day" means a day during which trading in securities generally occurs on
the principal national or regional securities exchange on which the applicable
security is then listed or, if the applicable security is not listed on a
national or regional securities exchange, on the Nasdaq National Market or, if
the applicable security is not quoted on the Nasdaq National Market, on the
principal other market on which the applicable security is then traded.
"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 redemption
date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining Average Life to Stated Maturity of the Senior Notes; PROVIDED,
HOWEVER, that if the Average Life to Stated Maturity of the Senior Notes is not
equal to the constant maturity of a United States Treasury security for 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that is designated by the
Board of Directors of the Company as an Unrestricted Subsidiary in accordance
with Section 1017 and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Global Note" has the meaning specified in Section 201.
"U.S. Government Obligations" means (i) securities that are (a) direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof; and (ii) depositary receipts issued by a bank (as
defined in Section 3(a)(2)
of the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in clause (i) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal or interest on any U.S. Government Obligation
which is so specified and held, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
or interest of the U.S. Government Obligation evidenced by such depositary
receipt.
"U.S. Physical Note" has the meaning specified in Section 201.
"Voting Stock" means any class or classes of Capital Stock pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of any
person (irrespective of whether or not, at the time, stock of any other class or
classes has, or might have, voting power by reason of the happening of any
contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares or shares
of foreign Restricted Subsidiaries required to be owned by foreign nationals
pursuant to applicable law) of which are owned, directly or indirectly, by the
Company.
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"indenture securities" means the Senior Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other obligor on
the Senior Notes.
All other Trust Indenture Act terms used in this Indenture that are defined by
the Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise defined
herein shall have the meanings assigned to them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture or the Pledge Agreement, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance which constitutes a condition precedent) relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture or the Pledge Agreement relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(a) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in Person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Senior Notes held by any
Person, and the date of holding the same, shall be proved by the Register.
(d) If the Company shall solicit from the Holders of Senior Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Senior Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Senior Notes shall be
computed as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Senior Note shall bind every future Holder of the
same Senior Note and the Holder of every Senior Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(b) the Company by the Trustee or any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at One Xxxxx
Center, Suite 2800, 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, or at any
other address previously furnished in writing to the Trustee by the Company.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders by the Company
or the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to
a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause, it shall be impracticable to mail notice of any
event to Holders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice for every purpose hereunder.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Senior Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Senior Notes, express or implied, shall give
to any Person, other than the parties hereto, any Paying Agent, any Note
Registrar and their successors hereunder, the Holders any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Senior Notes shall be governed by, and construed in
accordance with, the law of the State of New York, without regard to conflicts
of law principles thereof. Upon the issuance of the Exchange Senior Notes, if
any, or the effectiveness of the Shelf Registration Statement, this Indenture
shall be subject to the provisions of the Trust Indenture Act of 1939, as
amended, that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, date established
for payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Maturity with respect to any Senior Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Senior Notes)
payment of principal (or premium, if any) or interest need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity; PROVIDED that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Maturity, Change in Control Purchase Date or Asset Sale Purchase Date, as the
case may be, to the next succeeding Business Day.
SECTION 114. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Trust Indenture Act Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such
Trust Indenture Act Sections, such imposed duties or incorporated provision
shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 115. ANCILLARY DOCUMENT.
The Trustee is hereby authorized and directed to execute and deliver the Pledge
Agreement and to perform the duties and obligations of the Trustee thereunder.
ARTICLE TWO
SENIOR NOTE FORMS
SECTION 201. FORMS GENERALLY.
The Initial Senior Notes shall be known as the "11f% Senior Secured Discount
Notes due 2004" and the Exchange Senior Notes shall be known as the "11f%
Series B Senior Secured Discount Notes due 2004", in each case, of the Company.
The Senior Notes and the Trustee's certificate of authentication shall be in
substantially the form annexed hereto as Exhibit A. The Senior Notes may have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have letters, notations or
other marks of identification and such notations, legends or endorsements
required by law, stock exchange agreements to which the Company is subject or
usage. Any portion of the text of any Senior Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the Note.
The Company shall approve the form of the Senior Notes and any notation, legend
or endorsement on the Senior Notes. Each Senior Note shall be dated the date of
its authentication.
The definitive Senior Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Senior Notes, as evidenced by
their execution of such Senior Notes.
The terms and provisions contained in the form of the Senior Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Initial Senior Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of a permanent global Senior Note substantially in the
form set forth in Exhibit A (the "U.S. Global Note") deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for the Depositary,
duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the U.S. Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Initial Senior Notes offered and sold in offshore transactions in reliance on
Regulation S shall be initially issued in the form of a single permanent global
Senior Note in registered form, substantially in the form set forth in Exhibit A
(the "Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount at maturity of the
Offshore Global Note may from time to time be increased or decreased by
adjustments made in the records of the Trustee, as custodian for the Depositary
or its nominee, as herein provided.
Initial Senior Notes which are offered and sold to institutional accredited
investors (as defined in Rule 501(a)(1), (2), (3) and (7) under the Securities
Act which are not QIBs (excluding Non-U.S. Persons) shall be issued in the form
of permanent certificated Senior Notes in registered form in substantially the
form set forth in Exhibit A (the "U.S. Physical Notes"). Senior Notes issued
pursuant to Section 306 in exchange for or upon transfer of interests in the
U.S. Global Note or the Offshore Global Note shall be in the form of U.S.
Physical Notes or in the form of permanent certificated Senior Notes in
registered form substantially in the form set forth in Exhibit A (the "Offshore
Physical Notes"), respectively.
The Offshore Physical Notes and U.S. Physical Notes are sometimes collectively
herein referred to as the "Physical Notes". The U.S. Global Note and the
Offshore Global Note are sometimes collectively referred to as the "Global
Notes".
SECTION 202. RESTRICTIVE LEGENDS.
Unless and until (i) an Initial Senior Note is sold under an effective
Registration Statement or (ii) an Initial Senior Note is exchanged for an
Exchange Senior Note in connection with an effective Registration Statement, in
each case pursuant to the Registration Rights Agreement, (A) each U.S. Global
Note and each U.S. Physical Note shall bear the following legend set forth below
(the "Private Placement Legend") on the face thereof and (B) the Offshore
Physical Notes and the Offshore Global Note shall bear the legend set forth
below on the face thereof until at least 41 days after the Issue Date and
receipt by the Company and the Trustee of a certificate substantially in the
form of Exhibit B hereto:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
ASCENT ENTERTAINMENT GROUP, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR", FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR
TO THE END OF THE 40-DAY RESTRICTED PERIOD WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSES (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Each Global Note, whether or not an Initial Senior Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO.),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 306 AND 307 OF THE INDENTURE.
ARTICLE THREE
THE SENIOR NOTES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount at maturity of Senior Notes which may be
authenticated and delivered under this Indenture is limited to $225,000,000,
except for Senior Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Senior Notes pursuant to
Section 304, 305, 306, 307, 308, 906, 1015, 1016 or 1108, pursuant to an
Exchange Offer or pursuant to Section 312.
The Initial Senior Notes shall be known and designated as the "11f% Senior
Secured Discount Notes Due 2004" and the Exchange Senior Notes shall be known
and designated as the "11f% Series B Senior Secured Discount Notes Due 2004" of
the Company. Their Stated Maturity shall be December 15, 2004. Based on the
issue price thereof, their yield to maturity is 11f%, calculated from December
15, 1997. Cash interest will not accrue or be payable on the Senior Notes prior
to December 15, 2002. Thereafter, cash interest on the Senior Notes will accrue
at a rate of 11f% per annum from December 15, 2002 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
payable semiannually on June and December in each year, commencing June 15,
2003, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any), and interest on the Senior Notes shall
be payable, and the Senior Notes shall be exchangeable and transferable, at the
office or agency of the Company in The City of New York maintained for such
purposes, (which initially shall be the office of the Trustee located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, at the option of the Company,
interest may be paid by check mailed to the address of the Person entitled
thereto as such address shall appear on the Register.
Senior Notes that remain outstanding after the consummation of the Exchange
Offer and Exchange Senior Notes issued in connection with the Exchange Offer
will be treated as a single class of securities under this Indenture.
The Senior Notes shall be redeemable as provided in Article Eleven.
SECTION 302. DENOMINATIONS.
The Senior Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof; PROVIDED that
U.S. Physical Notes originally purchased by or transferred to institutional
"accredited investors" (as defined in Rule 501(a), (1), (2), (3) or (7) under
the Securities Act) who are not "qualified institutional buyers" (as defined in
Rule 144A) will be subject to a minimum denomination of $50,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Senior Notes shall be executed on behalf of the Company by its Chairman, its
President or a Vice President, under its corporate seal reproduced thereon and
attested by its Secretary or an Assistant Secretary. The corporate seal may be
a facsimile and the signature of any of the aforementioned officers on the
Senior Notes may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Senior Notes.
Senior Notes bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Senior Notes or did not
hold such offices at the date of such Senior Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Initial Senior Notes executed by the Company
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Initial Senior Notes directing the Trustee
to authenticate the Senior Notes and certifying that all conditions precedent to
the issuance of Senior Notes contained herein have been fully complied with, and
the Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Senior Notes. On Company Order, the Trustee shall authenticate for
original issue Exchange Senior Notes in an aggregate principal amount at
maturity not to exceed $225,000,000; PROVIDED that such Exchange Senior Notes
shall be issuable only upon the valid surrender for cancellation of Initial
Senior Notes of a like aggregate principal amount at maturity in accordance with
an Exchange Offer pursuant to the Registration Rights Agreement. In each case,
the Trustee shall be entitled to receive an Officers' Certificate and an Opinion
of Counsel of the Company that it may reasonably request in connection with such
authentication of Senior Notes. Such order shall specify the amount of Senior
Notes to be authenticated and the date on which the original issue of Initial
Senior
Notes or Exchange Senior Notes is to be authenticated.
Each Senior Note shall be dated the date of its authentication.
No Senior Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Senior Note a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Senior Note shall be conclusive evidence, and the
only evidence, that such Senior Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated or merged
with or into any other Person or shall convey, transfer, lease or otherwise
dispose of its properties and assets substantially as an entirety to any Person,
and the successor Person resulting from such consolidation, or surviving such
merger, or into which the Company shall have been merged, or the Person which
shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article Eight, any of the Senior Notes authenticated or delivered
prior to such consolidation, merger, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other Senior Notes executed in the name of the successor Person
with such changes in phraseology and form as may be appropriate, but otherwise
in substance of like tenor as the Senior Notes surrendered for such exchange and
of like principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Senior Notes as specified in such request
for the purpose of such exchange. If Senior Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Senior Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Senior Notes at
the time Outstanding for Senior Notes authenticated and delivered in such new
name.
SECTION 304. TEMPORARY SENIOR NOTES.
Pending the preparation of definitive Senior Notes, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Senior
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Senior Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Senior Notes may determine, as conclusively evidenced by
their execution of such Senior Notes.
If temporary Senior Notes are issued, the Company will cause definitive Senior
Notes to be prepared without unreasonable delay. After the preparation of
definitive Senior Notes, the temporary Senior Notes shall be exchangeable for
definitive Senior Notes upon surrender of the temporary Senior Notes at the
office or agency of the Company designated for such purpose pursuant to
Section 1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Senior Notes, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Senior Notes of authorized denominations. Until so
exchanged, the temporary Senior Notes shall in all respects be entitled to the
same benefits under this Indenture as definitive Senior Notes.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes referred to as
the "Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Senior Notes and of
transfers of Senior Notes. The Register shall be in written form or any other
form capable of being converted into written form within a reasonable time. At
all reasonable times, the Register shall be open to inspection by the Trustee.
The Trustee is hereby initially appointed as security registrar (the "Registrar"
or "Note Registrar") for the purpose of registering Senior Notes and transfers
of Senior Notes as herein provided.
Upon surrender for registration of transfer of any Senior Note at the office or
agency of the Company designated pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Senior Notes of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Senior Notes may be exchanged for other Senior
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Senior Notes to be exchanged at such office or agency.
Whenever any Senior Notes are so surrendered for exchange (including an exchange
of Initial Senior Notes for Exchange Senior Notes), the Company shall execute,
and the Trustee shall authenticate and deliver, the Senior Notes which the
Holder making the exchange is entitled to receive; PROVIDED that no exchange of
Initial Senior Notes for Exchange Senior Notes shall occur until an Exchange
Offer Registration Statement shall have been declared effective by the
Commission and that the Initial Senior Notes to be exchanged for the Exchange
Senior Notes shall be cancelled by the Trustee.
All Senior Notes issued upon any registration of transfer or exchange of Senior
Notes shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Senior Notes surrendered upon such registration of transfer or exchange.
Every Senior Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange or
redemption of Senior Notes, but the Company may require payment in certain
circumstances of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Senior Notes, other than exchanges pursuant to Section 304, 906, 1015, 1016
or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Senior Note during a period beginning at the opening of business 15
days before the mailing of a notice of redemption of Senior Notes under
Section 1104 and ending at the close of business on the day of such mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Senior Note so selected for redemption in whole or in part, except
the unredeemed portion of any Senior Note being redeemed in part.
SECTION 306. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) Each Global Note initially shall (i) be registered in the name of Cede &
Co., as nominee of the Depositary (such nominee being referred to herein as the
"Global Note Holder"), (ii) be deposited with, or on behalf of, the Depositary
or with the Trustee, as custodian for such Depositary, and (iii) bear legends as
set forth in Section 202.
Members of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Indenture with respect to any Global Note held on their behalf
by the Depositary, or the Trustee as its custodian, or under any Global Note,
and the Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Note.
(b) Transfers of any Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 307. In addition, U.S. Physical Notes or Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Note or the Offshore Global Note,
respectively, if: (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for the applicable Global Note or the
Depositary ceases to be a "Clearing Agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days or
(y) an Event of Default has occurred and is continuing and Holders of more than
25% in aggregate principal amount of the Senior Notes at the time Outstanding
represented by the Global Notes advise the Trustee through the Depositary in
writing that the continuation of a book-entry system through the Depositary with
respect to the Global Notes is no longer required.
(c) Any beneficial interest in one of the Global Notes that is transferred to
a person who takes delivery in the form of an interest in the other Global Note
will, upon transfer, cease to be an interest in such Global Note and become an
interest in the other Global Note and, accordingly, will thereafter be subject
to all transfer restrictions, if any, and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an
interest.
(d) In connection with any transfer pursuant to paragraph (b) of this Section
of a beneficial interest in any Global Note to a beneficial owner who is
required or permitted to hold a Physical Note, the Note Registrar shall reflect
on its books and records the date and a decrease in the principal amount at
maturity of the applicable Global Note in an amount equal to the principal
amount at maturity of the beneficial interest in such Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, subject to the terms and conditions of Section 307 hereof, one or
more Physical Notes of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Note or
Offshore Global Note to beneficial owners pursuant to paragraph (b) of this
Section, the U.S. Global Note or Offshore Global Note, as the case may be, shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount at maturity of U.S. Physical Notes or Offshore
Physical Notes, as the case may be, of
authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in the U.S.
Global Note pursuant to subsection (b) or (d) of this Section shall, unless such
exchange is made on or after the Resale Restriction Termination Date and except
as otherwise provided in Section 307, bear the applicable legend regarding
transfer restrictions applicable to the U.S. Physical Note set forth in
Section 202.
(g) The registered Global Notes Holder may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Senior Notes.
(h) Beneficial owners of interests in a Global Note may receive Physical
Notes (which shall bear the Private Placement Legend if required by Section 202)
in accordance with the procedures of the Depositary. In connection with the
execution, authentication and delivery of such Physical Notes, the Registrar
shall reflect on its books and records a decrease in the principal amount at
maturity of the relevant Global Note equal to the principal amount at maturity
of such Physical Notes and the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes having an equal aggregate
principal amount at maturity.
SECTION 307. SPECIAL TRANSFER PROVISIONS.
Unless and until (i) an Initial Senior Note is sold under an effective
Registration Statement, or (ii) an Initial Senior Note is exchanged for an
Exchange Senior Note in connection with an effective Registration Statement, in
each case pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The following
provisions shall apply with respect to the registration of any proposed transfer
of an Initial Senior Note to any institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial Senior Note,
whether or not such Initial Senior Note bears the Private Placement Legend, and
the Company shall execute, and the Trustee shall authenticate and deliver one or
more U.S. Physical Notes if (x) the requested transfer is at least two years
after the original issue date of the Initial Senior Notes or (y) the proposed
transferee has delivered to the Registrar a certificate substantially in the
form of Exhibit C hereto.
(ii) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Note, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Note in an amount equal to the principal
amount of the beneficial interest in the U.S. Global Note to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more U.S. Physical Notes of like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with respect to
the registration of any proposed transfer of a U.S. Physical Note or an interest
in the U.S. Global Note to a QIB (excluding Non-U.S. Persons):
(i) If the Senior Note to be transferred consists of (i) U.S. Physical Notes,
the Registrar shall register the transfer and the Company shall execute, and the
Trustee shall authenticate and deliver one or more U.S. Physical Notes if such
transfer is being made by a proposed transferor who has checked the box provided
for on the form of Initial Senior Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Senior Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Initial Senior Note for its own account or an account with
respect to which it exercises sole investment discretion and that it, or the
Person on whose behalf it is acting with respect to any such account, is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A or (ii) an interest in the
U.S. Physical Note, the transfer of such interest may be effected only through
the book-entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Initial Senior
Notes to be transferred consist of U.S. Physical Notes, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S. Global Note
in an amount equal to the principal amount of the U.S. Physical Notes, as the
case may be, to be transferred, and the
Trustee shall cancel the U.S. Physical Notes so transferred.
(c) TRANSFERS OF INTERESTS IN THE OFFSHORE GLOBAL NOTE OR OFFSHORE PHYSICAL
NOTES TO U.S. PERSONS. The following provisions shall apply with respect to any
transfer of interests in the Offshore Global Note or Offshore Physical Notes to
U.S. Persons:
(i) prior to the removal of the Private Placement Legend from the Offshore
Global Notes or Offshore Physical Notes pursuant to Section 202, the Note
Registrar shall refuse to register such transfer; and
(ii) after such removal pursuant to Section 202, the Note Registrar shall
register the transfer of any such Security without requiring any additional
certification.
(d) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following provisions
shall apply with respect to any transfer of an Initial Senior Note to a Non-U.S.
Person:
(i) The Note Registrar shall register any proposed transfer to any Non-U.S.
Person if the Senior Note to be transferred is a U.S. Physical Note or an
interest in the U.S. Global Note only upon receipt of a certificate
substantially in the form of Exhibit D from the proposed transferor.
(ii) (x) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Note, upon receipt by the Note Registrar of (1) the
document required by paragraph (i) and (2) instructions in accordance with the
Depositary's and the Note Registrar's procedures, the Note Registrar shall
reflect on its books and records the date and a decrease in the principal amount
at maturity of the U.S. Global Note in an amount equal to the principal amount
at maturity of the beneficial interest in the U.S. Global Note to be
transferred, and (y) if the proposed transferor is an Agent Member, upon receipt
by the Note Registrar of instructions given in accordance with the Depositary's
and the Note Registrar's procedures, the Note Registrar shall reflect on its
books and records the date and an increase in the principal amount at maturity
of the Offshore Global Note in an amount equal to the principal amount at
maturity of the U.S. Physical Note or the U.S. Global Note, as the case may be,
to be transferred, and the Trustee shall cancel the Physical Note, if any, so
transferred or decrease the amount of the U.S. Global Note.
(e) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following provisions
shall apply with respect to any transfer of an Initial Senior Note to a Non-U.S.
Person:
(i) Prior to January 26, 1998, the Registrar shall register any proposed
transfer of an Initial Senior Note to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit C hereto from the proposed
transferor and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Temporary Certificates of like tenor and amount.
(ii) On and after January 26, 1998, the Registrar shall register any proposed
transfer to any Non-U.S. Person (x) if the Initial Senior Note to be transferred
is an Offshore Physical Note, (y) if the Initial Senior Note to be transferred
is a U.S. Physical Note or an interest in the U.S. Global Note, upon receipt of
a certificate substantially in the form of Exhibit C from the proposed
transferor and (z) in the case of either clause (x) or (y), the Company shall
execute, and the Trustee shall authenticate and deliver, one or more Physical
Notes of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Note, upon receipt by the Registrar of (x) the
document, if any, required by paragraph (i), and (y) instructions in accordance
with the Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Note in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Note to be transferred and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and amount.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or replacement of
Senior Notes not bearing the Private Placement Legend, the Registrar shall
deliver Senior Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Senior Notes bearing the Private Placement
Legend, the Registrar shall deliver only Senior Notes that bear the Private
Placement Legend unless either (i) the circumstances contemplated by Section 202
or paragraph (a)(i)(x) of this Section 307 exist or (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Company to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(g) GENERAL. By its acceptance of any Senior Note bearing the Private
Placement Legend, each Holder of such a Senior Note acknowledges the
restrictions on transfer of such Senior Note set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Senior Note
only as provided in this Indenture.
The Registrar shall retain until such time as no Senior Notes remain Outstanding
copies of all letters, notices and other written communications received
pursuant to Section 306 or this Section 307. The Company shall have the right
to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
Each Holder of a Senior Note agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
by such Holder of such Holder's Senior Note in violation of any provisions of
this Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer impose under this Indenture or
under applicable law with respect to any transfer of any interest in any Senior
Note (including any transfers between or among Agent Members or beneficial
owners of interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
Each Holder of a Senior Note agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
by such Holder of such Holder's Senior Note in violation of any provision of
this Indenture and/or applicable United States Federal or State securities law.
The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Senior
Note (including any transfers between or among Agent Members or beneficial
owners of interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 308. MUTILATED, DESTROYED, LOST AND STOLEN SENIOR NOTES.
If (i) any mutilated Senior Note is surrendered to the Trustee or the Registrar,
or (ii) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Note, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Senior Note has been acquired by a bona fide purchaser, the
Company shall execute
and upon Company Order the Trustee shall authenticate and deliver, in exchange
for any such mutilated Senior Note or in lieu of any such destroyed, lost or
stolen Note, a new Senior Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Senior Note has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Senior Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Senior Note issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Senior Note shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Senior Note shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and proportionately with
any and all other Senior Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Senior Notes.
SECTION 309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Senior Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Senior Note (or one or more Predecessor Senior Notes) is registered at
the close of business on the Regular Record Date for such interest at the office
or agency of the Company in The City of New York maintained for such purposes
(which initially shall be the office of the Trustee located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000) pursuant to Section 1002 or, at the option of
the Company, interest may be paid by check mailed to the address of the Person
entitled thereto pursuant to 310 as such address appears in the Register;
PROVIDED that all payments with respect to the Global Notes and the Physical
Notes the Holders of which have given written wire transfer instructions to the
Trustee (or other Paying Agent) by the Regular Record Date shall be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof.
Any interest on any Senior Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue
of having been such Holder, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the Senior
Notes (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Senior Notes (or their respective Predecessor Senior
Notes) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Senior Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the manner provided for in
Section 107, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Senior Notes (or their respective Predecessor Senior
Notes) are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Senior Notes may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Senior Note delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Senior Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
If the Company shall be required to pay any additional interest pursuant
to the terms of the Registration Rights Agreement, it shall deliver an Officers'
Certificate to the Trustee setting forth the new interest rate and the period
for which such rate is applicable.
SECTION 310. PERSONS DEEMED OWNERS.
Prior to the due presentment of a Senior Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Senior Note is registered as the owner of such Senior
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 309) interest on such Senior Note and for all
other purposes whatsoever, whether or not such Senior Note be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 311. CANCELLATION.
All Senior Notes surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Senior Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Senior Notes previously
authenticated hereunder which the Company has not issued and sold, and all
Senior Notes so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Senior Notes, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Senior Notes unless and until the same are surrendered to
the Trustee for cancellation. No Senior Notes shall be authenticated in lieu of
or in exchange for any Senior Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Senior Notes
held by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures unless by Company Order the Company shall direct that
cancelled Senior Notes be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Interest on the Senior Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 313. CUSIP NUMBERS.
The Company in issuing the Senior Notes may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the
correctness of such numbers either as printed on the Senior Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Senior Notes, and any such
redemption shall not be affected by an defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the request of the Company, this Indenture will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Senior Notes, as expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, will execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(a) either (i) all the Senior Notes theretofore authenticated and delivered
(other than mutilated, destroyed, lost or stolen Senior Notes that have been
replaced or paid and Senior Notes that have been subject to defeasance under
Article Twelve) have been delivered to the Trustee for cancellation or (ii) all
Senior Notes not theretofore delivered to the Trustee for cancellation (A) have
become due and payable, (B) will become due and payable at maturity within one
year or (C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in the
case of (A), (B) or (C) above, has irrevocably deposited or caused to be
deposited with the Trustee funds in trust for the purpose in an amount
sufficient to pay and discharge the entire Indebtedness on such Senior Notes not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any, on) and interest on the Senior Notes to the date of such
deposit (in the case of Senior Notes that have become due and payable) or to the
Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all sums payable under this
Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided herein
relating to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Senior Note when it becomes
due and payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if any, on) any
Senior Note when due;
(3) failure to perform or comply with Sections 801, 1009, 1010, 1011, 1015
and 1016, in each case, within the time periods specified in this Indenture;
(4) default in the performance, or breach, of any covenant or agreement of
the Company, a Pledgor or any Restricted Subsidiary contained in this Indenture
or the Pledge Agreement (other than a default in the performance, or breach, of
a covenant or agreement that is specifically dealt with elsewhere herein), and
continuance of such default or breach for a period of 60
days after written notice has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Senior Notes then outstanding;
(5) (i) an event of default has occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing an issue of Indebtedness
of the Company or any Restricted Subsidiary, which issue has an aggregate
outstanding principal amount of not less than $5,000,000 ("Specified
Indebtedness"), and such default has resulted in such Specified Indebtedness
becoming, whether by declaration or otherwise, due and payable prior to the date
on which it would otherwise become due and payable or (ii) a default in any
payment when due at final maturity of any such Specified Indebtedness;
(6) failure by the Company or any of its Restricted Subsidiaries to pay one
or more final judgments the uninsured portion of which exceeds in the aggregate
$5,000,000, which judgment or judgments are not paid, discharged or stayed for a
period of 60 days;
(7) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustments or composition of or in respect of the Company or any
Significant Subsidiary under the Federal Bankruptcy Code or any other applicable
federal or state law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days;
(8) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable federal or state law,
or the consent by it to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due; or
(9) the Pledge Agreement shall cease to be in full force and effect or
enforceable in accordance with its terms, other than in accordance with its
terms, or
the Company denies or disaffirms its obligations under the Pledge Agreement
or the obligations under the Pledge Agreement cease to be secured by a
perfected first priority security interest in any portion of the Collateral
purported to be pledged under the Pledge Agreement (other than in accordance
with its terms).
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in Section 501(7) or 501(8))
occurs and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Senior Notes then outstanding may, and the
Trustee at the request of such Holders will, declare the Default Amount of and
accrued and unpaid interest on, all of the outstanding Senior Notes immediately
due and payable and, upon any such declaration, such amounts will become due and
payable immediately.
If an Event of Default specified in Section 501(7) or 501(8) occurs and is
continuing, then the Default Amount of, and accrued and unpaid interest on, all
of the outstanding Senior Notes will IPSO FACTO become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder of Senior Notes.
At any time after a declaration of acceleration under this Indenture, but before
a judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Senior Notes, by written notice to the Company and the Trustee, may
rescind such declaration and its consequences if (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay (A) all overdue interest on
all Senior Notes, (B) all unpaid principal of (and premium, if any, on) any
outstanding Senior Notes that has become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Senior Notes,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest and overdue principal at the rate borne by the Senior Notes and (D) all
sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and (ii) all Events of Default, other than the non-payment of the
Default Amount (or premium, if any, on) or interest on the Senior Notes that
have become due solely by such declaration of acceleration, have been cured or
waived. No such rescission will affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Senior Notes because an Event of Default
specified in Section 501(5) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have
been given to the Trustee by the Company and countersigned by the holders of
such Indebtedness or a trustee, fiduciary or agent for such holders, within 30
days after such declaration of acceleration in respect of the Senior Notes, and
no other Event of Default has occurred during such 30-day period which has not
been cured or waived during such period.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of interest on any
Senior Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any,
on) any Senior Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Senior Notes, the whole amount then due and payable on
such Senior Notes for principal (and premium, if any) and interest, and interest
on any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installment of
interest, at the rate borne by the Senior Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Senior Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Senior Notes, wherever
situated, including Collateral under the Pledge Agreement.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Senior
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Senior
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal (and premium,
if any) and interest owing and unpaid in respect of the Senior Notes and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Senior
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SENIOR NOTES.
All rights of action and claims under this Indenture or the Senior Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Senior Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Senior
Notes in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Senior Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Senior Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Senior
Notes for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any of the Senior Notes has any right to institute any proceeding
with respect to this Indenture, the Pledge Agreement or the Senior Notes or any
remedy thereunder, unless the Holders of at least 25% in aggregate principal
amount of the outstanding Senior Notes have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding, the Trustee
has failed to institute any such proceeding within 60 days after receipt of such
notice and the Trustee, within such 60-day period, has not received directions
inconsistent with such written request by Holders of a majority in aggregate
principal amount of the outstanding Senior Notes. Such limitations do not
apply, however, to a suit instituted by a Holder of a Senior Note for the
enforcement of the payment of the principal of, premium, if any, or interest on
such Senior Note on or after the respective due dates expressed in such Note.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture or the Pledge Agreement,
the Holder of any Senior Note shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Twelve) and in such Senior Note of the principal of (and premium, if
any) and (subject to Section 309)
interest on such Senior Note on the respective Stated Maturities expressed in
such Senior Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Senior Notes in the last paragraph of
Section 308, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Senior Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of the Outstanding
Senior Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, including, without limitation,
powers conferred on it by the Pledge Agreement, PROVIDED that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it in personal
liability or be unjustly prejudicial to the Holders not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Senior Notes may, by notice to the Trustee, on behalf of the Holders
of all of the Senior Notes, waive any past defaults under this Indenture or the
Pledge Agreement, except a default in the payment of the Default Amount (and
premium, if any) or interest on any Note, or in respect of a covenant or
provision that under this Indenture or the Pledge Agreement cannot be modified
or amended without the consent of the Holder of each Senior Note Outstanding.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. WAIVER OF PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Affiliate shall have any liability for any
obligations of the Company under the Senior Notes, this Indenture or any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Senior Notes by accepting a Senior Note waives and releases all
such liability. The waiver and release are part
of the consideration for issuance of the Senior Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
SECTION 516. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorney's fees and
expenses, 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 516 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 508 hereof, or a suit by Holders of more than 10% in
principal amount of the then Outstanding Senior Notes.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and is known to the
Trustee, the Trustee shall mail to each Holder of the Senior Notes notice of the
Default or Event of Default within 90 days after the occurrence thereof.
However, except in the case of a Default or an Event of Default in payment of
principal of (and premium, if any, on) or interest on any Senior Notes, the
Trustee may withhold the notice to the Holders of the Senior Notes if a
committee of its trust officers in good faith determines that withholding such
notice is in the interests of the Holders of the Senior Notes.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting, pursuant to the terms of this Indenture or otherwise,
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently
evidenced by a Company Request or Company Order with sufficient detail as may be
requested by the Trustee and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate and/or an Opinion of Counsel;
(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities (including fees and expenses of its agents and counsel) which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into, and may
conclusively rely upon, the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
(i) except during the
continuance of an Event of Default, the Trustee need perform only those duties
as are specifically set forth in this Indenture; and
(j) the Trustee shall not be deemed to have notice of any Default or Event of
Default unless a responsible officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Senior Notes and this Indenture.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SENIOR NOTES.
The recitals contained herein and in the Senior Notes, except for the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture,
the Pledge Agreement, any Collateral or the Senior Notes, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Senior Notes and perform its obligations hereunder
and, upon the effectiveness of the Registration Statement, that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. The Trustee
shall not be accountable for the use or application by the Company of Senior
Notes or the proceeds thereof.
SECTION 604. MAY HOLD SENIOR NOTES.
The Trustee, any Paying Agent, any Note Registrar or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Senior Notes and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee (in its capacity as Trustee, Paying Agent and
Registrar) from time to time such compensation as shall be agreed in writing
between the Company and the Trustee for all services rendered by it hereunder
and under the Pledge Agreement (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein and under the Pledge
Agreement, to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture and the Pledge Agreement
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustee and any predecessor Trustee for, and to
hold it harmless against, any and all loss, damage, claim, liability or expense,
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust and the Pledge Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the acceptance, exercise or performance of any of
its powers or duties hereunder and under the Pledge Agreement.
The obligations of the Company under this Section to compensate the Trustee, to
pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
As security for the performance of such obligations of the Company, the Trustee
shall have a lien prior to the Senior Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Senior Notes.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(7) or (8), the expenses (including the
reasonable charges and expenses of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be eligible to act
as Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not less
than a majority in principal amount of the Outstanding Senior Notes, delivered
to the Trustee and to the Company. If the instrument of acceptance by a
successor Trustee required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the Trustee
being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b)
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Senior Note for at least six months, except when the
Trustee's duty to resign is stayed in accordance with the provisions of TIA
Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 607 and shall fail to
resign after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Senior Note for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Senior Note for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Senior Notes delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Senior Note for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee to the Holders of Senior
Notes in the manner provided for in Section 107. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder subject to the retiring Trustee's rights
as provided under the last sentence of Section 606. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Senior Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Senior Notes so authenticated with the same
effect as if such successor Trustee had itself authenticated such Senior Notes.
In
case at that time any of the Senior Notes shall not have been authenticated, any
successor Trustee may authenticate such Senior Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such
cases such certificates shall have the full force and effect which this
Indenture provides that the certificate of authentication of the Trustee shall
have for the certificate of authentication of the Trustee shall have; PROVIDED,
HOWEVER, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Senior Notes in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND
COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Senior Notes, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company or the Trustee or any agent of
either of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May 15 after
the first issuance of Senior Notes, the Trustee shall transmit to the Holders,
in the manner and if and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act of 1934
in respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations;
(c) transmit by mail to all Holders, in the manner and to the extent provided
in TIA
Section 313(c), within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company may not, in a single transaction or series of related transactions,
consolidate or merge with or into (whether or not the Company is the surviving
corporation), or directly and/or indirectly through its Subsidiaries sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets (determined on a consolidated basis for the Company
and its Subsidiaries taken as a whole) in one or more related transactions to,
another corporation, Person or entity unless:
(a) either (i) the Company is the surviving corporation or (ii) in the case of
a transaction involving the Company, the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (the "Surviving Entity"), is a corporation organized or
existing under the laws of the United States, any state thereof or the District
of Columbia and assumes all the obligations of the Company under the Senior
Notes and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee;
(b) immediately after giving effect to such transaction and treating any
obligation of the Company in connection with or as a result of such transaction
as having been incurred as of the time of such transaction, no Default or Event
of Default has occurred and is continuing;
(c) the Company (or the Surviving Entity if the Company is not the continuing
obligor
under this Indenture) could, immediately after such transaction and after giving
pro forma effect thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to the first paragraph
of Section 1010;
(d) if the Company is not the continuing obligor under this Indenture, each
Restricted Subsidiary, unless it is the other party to the transaction described
above, has by supplemental indenture confirmed that its guarantee entered into
pursuant to Section 1021 applies to the Surviving Entity's obligations under
this Indenture and the Senior Notes;
(e) if any of the property or assets of the Company or any of its Restricted
Subsidiaries would thereupon become subject to any Lien, the provisions of
Section 1014 are complied with;
(f) immediately after giving effect to such transaction on a pro forma basis,
the Consolidated Net Worth of the Company (or of the Surviving Entity if the
Company is not the continuing obligor under this Indenture) is equal to or
greater than the Consolidated Net Worth of the Company immediately prior to such
transaction; and
(g) the Company delivers, or causes to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each stating that such transaction complies with the
requirements of this Indenture.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying with the conditions
listed in Section 801 in which the Company is not the continuing obligor under
this Indenture, the Surviving Entity will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture, and
thereafter the Company will, except in the case of a lease, be discharged from
all its obligations and covenants under this Indenture and the Senior Notes.
SECTION 803. SENIOR NOTES TO BE SECURED IN CERTAIN EVENTS.
If, upon any such consolidation of the Company with or merger of the Company
into any other corporation, or upon any conveyance, lease or transfer of the
property of the Company substantially as an entirety to any other Person, any
property or assets of the Company would thereupon become subject to any Lien,
then unless such Lien could be created pursuant to Section 1014 without equally
and ratably securing the Senior Notes, the Company, prior to or simultaneously
with such consolidation, merger, conveyance, lease or transfer, will as to such
property or assets, secure the Senior Notes Outstanding (together with, if the
Company shall so determine any other Indebtedness of the Company now existing or
hereinafter created which is not subordinate in right of payment to the Senior
Notes) equally and ratably with (or prior to) the Indebtedness which upon such
consolidation, merger, conveyance, lease or transfer is to become secured as to
such property or assets by such Lien, or will cause such Senior Notes to be so
secured.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND PLEDGE AGREEMENT
SECTION 901. WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee may amend or supplement this Indenture, the Pledge
Agreement or the Senior Notes:
(a) to evidence the succession of another person to the Company and the
assumption by any such successor of the covenants of the Company in this
Indenture, the Pledge Agreement and in the Senior Notes; or
(b) to add to the covenants of the Company herein and under the Pledge
Agreement for the benefit of the Holders or to surrender any right or power
herein or therein conferred upon the Company; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Senior Notes in addition to or in place of
the certificated Senior Notes; or
(e) to evidence and provide for the acceptance of appointment under this
Indenture by a successor Trustee; or
(f) to secure the Senior Notes; or
(g) to cure any ambiguity, to correct or supplement any provision in this
Indenture that may be defective or inconsistent with any other provision in this
Indenture and the Pledge Agreement, or to make any other provisions with respect
to matters or questions arising under this Indenture and the Pledge Agreement,
PROVIDED that such actions pursuant to this clause do not adversely affect the
interests of the Holders in any material respect; or
(h) to comply with any requirements of the Commission in order to effect and
maintain the qualification of this Indenture under the Trust Indenture Act.
Upon the request of the Company accompanied by a Board Resolution authorizing
the execution of any such amended or supplemental indenture, Pledge Agreement or
Senior Note, and upon receipt by the Trustee of the documents described in
Section 602 hereof, the Trustee shall join with the Company in the execution of
any amended or supplemental indenture or Pledge Agreement authorized or
permitted by the terms of this Indenture and shall make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture or Pledge
Agreement that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 902. WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
Outstanding principal amount at maturity of the Senior Notes, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may amend or supplement in any manner
this Indenture and the Pledge Agreement and modify in any manner the rights of
the Holders under this Indenture and the Pledge Agreement; PROVIDED, HOWEVER,
that no such amendment or modification may, without the consent of the Holder
of each Outstanding Senior Note affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
interest on, any Note, or reduce the principal amount or Accreted Value thereof
or the rate of interest thereon or any premium payable upon the redemption
thereof or amend or modify the calculation of Accreted Value or Default Amount,
or change the coin or currency in which any Senior Note or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or, in the
case of redemption, on or after the redemption date);
(b) reduce the percentage in principal amount of outstanding Senior Notes, the
consent of whose Holders is required for any waiver of compliance with certain
provisions of, or certain defaults and their consequences provided for under,
this Indenture or the Pledge Agreement;
(c) waive a default in the payment of principal of, or premium, if any, or
interest on the Senior Notes or reduce the percentage of aggregate principal
amount at maturity of Outstanding Senior Notes the consent of whose Holders is
necessary for waiver of compliance with certain provisions of this Indenture or
for waiver of certain defaults;
(d) release any Pledged Stock from the Lien created by the Pledge Agreement
except in accordance with the terms thereof;
(e) make any change in the foregoing amendment and waiver provisions of this
Section 902; or
(f) waive a redemption payment with respect to any Senior Note (other than a
payment required by the provisions of Sections 1015 and 1016.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Senior Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to the Article shall conform to
the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SENIOR NOTES TO SUPPLEMENTAL INDENTURES.
Senior Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Senior
Notes so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Senior Notes.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of Section 902, the Company shall give
notice thereof to the Holders of each Outstanding Senior Note affected, in the
manner provided for in Section 107, setting forth in general terms the substance
of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Senior Notes in accordance with the terms of the Senior Notes and this
Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York, an office or agency where
Senior Notes may be presented or surrendered for payment, where Senior Notes may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Senior Notes and this Indenture
may be served. The Corporate Trust Office located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 of the Trustee shall be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Senior Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SENIOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on or
before each due date of the Accreted Value or principal of (or premium, if any)
or interest on any of the Senior Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the Accreted
Value or principal of (or premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for the Senior Notes,
it will, on or before each due date of the Accreted Value or principal of (or
premium, if any) or interest on any Senior Notes, deposit with a Paying Agent a
sum sufficient to pay the Accreted Value or principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such Accreted Value or principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of the Accreted Value or principal
of (and premium, if any) or interest on Senior Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other obligor
upon the Senior Notes) in the making of any payment of Accreted Value or
principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the Accreted Value or principal of (or
premium, if any) or interest on any Senior Note and remaining unclaimed for two
years after such Accreted Value or principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Senior Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect the corporate existence,
rights (charter and statutory) and franchises of the Company and each
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and
(b) all lawful claims for labor, materials and supplies, which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
PROVIDED, HOWEVER, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned by the Company or any Subsidiary or
used or held for use in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. INSURANCE.
The Company will at all times keep all of its and its Subsidiaries' properties
which are of an insurable nature insured with insurers, believed by the Company
to be responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties.
SECTION 1008. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of compliance by the Company with all conditions and covenants under
this Indenture and the Pledge Agreement. For purposes of this Section 1008(a),
such compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture and the Pledge Agreement.
(b) When any Default has occurred and is continuing under this Indenture, or if
the trustee for or the holder of any other evidence of Indebtedness of the
Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Indebtedness in the
principal amount of less than $2,000,000), the Company shall deliver to the
Trustee by registered or certified mail or by facsimile transmission an
Officers' Certificate specifying such event, notice or other action within five
days of becoming aware of its occurrence.
SECTION 1009. SALE OF COLLATERAL OR LOSS OF CONTROL OF OCC BOARD.
(a) The Company will not sell, assign, convey, transfer or otherwise dispose
of any of the Pledged Stock (a "Collateral Sale") unless each of the following
conditions is complied with:
(i) no Default shall have occurred and be continuing;
(ii) the aggregate gross consideration received by the Company for such
Pledged Stock is not less than the Current Market Price per share of Common
Stock of OCC determined as of the date of such sale;
(iii) the consideration received by the Company in respect of such Pledged
Stock consists of at least 85% cash or Cash Equivalents;
(iv) the Net Cash Proceeds from the sale of such Pledged Stock are paid in
full directly to the Trustee and are received by the Trustee free of any Lien
(other than the Lien of this Indenture); and
(v) the Company shall have complied with the other provisions of this
Indenture applicable to such sale.
The Company must apply the Net Cash Proceeds from such Collateral Sale as
described below under paragraph (b).
(b) In the event that (i) the Company engages in a Collateral Sale permitted
under the foregoing paragraph (a) or (ii) the nominees of the Company elected to
the Board of Directors of OCC cease for any reason to constitute a majority of
the Board of Directors of OCC (each, a "Repurchase Offer Triggering Event"), the
Company shall be required to make an offer to repurchase the Senior Notes (the
"Repurchase Offer") in whole in accordance with subsections (c) through (e)
below, at the following repurchase prices: (A) if the date of such repurchase
occurs on or prior to December 15, 2002, at a repurchase price equal to the sum
of the Accreted Value of the Senior Notes as of the repurchase date (the
"Repurchase Offer Purchase Date"), plus the Applicable Premium; or (B) if the
date of such repurchase occurs after December 15, 2002, at the redemption price
then applicable as specified in the Senior Notes. In
the case where the Repurchase Offer Triggering Event is a Collateral Sale, upon
the expiration of the offer to purchase Senior Notes made by the Company
pursuant to this paragraph (b), any Net Cash Proceeds from the Collateral Sale
not applied to the repurchase of Senior Notes tendered by holders thereof may be
retained by the Company, free of the Lien of this Indenture and the Pledge
Agreement. In the case where the Repurchase Offer Triggering Event is the event
described in clause (ii) of the first sentence of this paragraph (b), upon the
expiration of the offer to purchase Senior Notes made by the Company pursuant to
this paragraph (b), the Pledged Stock shall be released from the security
interest represented by the Pledge Agreement.
(c) Within 30 days following any Repurchase Offer Triggering Event, the
Company shall notify the Trustee thereof and give written notice of such
Repurchase Offer Triggering Event to each holder of Senior Notes by first-class
mail, postage prepaid, at its address appearing in the security register,
stating:
(i) that a Repurchase Offer Triggering Event has occurred, that the
Repurchase Offer is being made pursuant to this Section 1009 and that all Senior
Notes validly tendered will be accepted for payment;
(ii) the purchase price and the purchase date, which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is
mailed or such later date as is necessary to comply with requirements under the
Exchange Act (the "Repurchase Offer Payment Date");
(iii) that any Senior Note not tendered shall continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the purchase price,
any Senior Notes accepted for payment pursuant to the Repurchase Offer shall
cease to accrue interest after the Repurchase Offer Purchase Date;
(v) that Holders electing to have any Senior Note purchased pursuant to the
Repurchase Offer will be required to surrender such Note, together with the form
entitled "Option of the Holder to Elect Repurchase" on the reverse side of such
Senior Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately preceding
the Repurchase Offer Payment Date;
(vi) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the close of business on the third Business Day
immediately preceding the Repurchase Offer Payment Date, a facsimile
transmission or
letter setting forth the name of such Holder, the principal amount of Senior
Notes delivered for purchase and a statement that such Holder is withdrawing his
election to have such Senior Notes purchased; and
(vii) that Holders whose Senior Notes are being purchased only in part will be
issued new Senior Notes equal in principal amount to the unpurchased portion of
the Senior Notes surrendered; PROVIDED that each Senior Note purchased and each
new Senior Note issued shall be in a principal amount of $1,000 or integral
multiples thereof.
(c) On the Repurchase Offer Payment Date, the Company shall:
(i) accept for payment Senior Notes or portions thereof tendered pursuant to
the Repurchase Offer;
(ii) deposit one day prior to the Repurchase Offer Purchase Date with the
Paying Agent money sufficient to pay the purchase price of all Senior Notes or
portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, all Senior Notes or
portions thereof so accepted together with an Officers' Certificate specifying
the Senior Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail, to the Holders of Senior Notes so
accepted, payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail to such Holders new Senior Notes equal in
principal amount to any unpurchased portion of the Senior Notes surrendered;
PROVIDED that each Senior Note purchased and each new Senior Note issued shall
be in a principal amount of $1,000 or integral multiples thereof. The Company
will publicly announce the results of the Repurchase Offer on or as soon as
practicable after the Repurchase Offer Purchase Date. For purposes of this
Section 1009, the Trustee shall act as Paying Agent.
(d) The Company shall comply with the applicable tender offer rules including
Rule-14e under the Exchange Act, and any other applicable securities laws and
regulations in connection with a Repurchase Offer. To the extent that
provisions of any applicable securities laws or regulations conflict with
provisions of this Section 1009, the Company shall comply with such securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 1009 by virtue thereof.
SECTION 1010. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK.
The Company will not, and will not permit any Restricted Subsidiary to, create,
issue, assume, guarantee or in any manner become directly or indirectly liable
for the payment of, or otherwise incur (collectively, "incur"), any Indebtedness
(including Acquired Indebtedness and the issuance of Disqualified Stock), except
that (x) the Company may incur Indebtedness if, at the time of such event, the
Fixed Charge Coverage Ratio for the immediately preceding four full fiscal
quarters for which internal financial statements are available, taken as one
accounting period, would have been equal to at least 2.0 to 1.0 and (y) OCC may
incur Indebtedness if, at the time of such event, the OCC Fixed Charge Coverage
Ratio for the immediately preceding four full fiscal quarters for which internal
financial statements are available, taken as one accounting period, would have
been equal to at least 2.0 to 1.0.
In making the foregoing calculation for any four-quarter period that includes
the Issue Date, pro forma effect will be given to the Offering, as if such
transactions had occurred at the beginning of such four-quarter period. In
addition (but without duplication), in making the foregoing calculation, pro
forma effect will be given to: (i) the incurrence of such Indebtedness and (if
applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was incurred and the
application of such proceeds occurred at the beginning of such four-quarter
period, (ii) the incurrence, repayment or retirement of any other Indebtedness
by the Company or its Restricted Subsidiaries since the first day of such four-
quarter period as if such Indebtedness was incurred, repaid or retired at the
beginning of such four-quarter period and (iii) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any company, entity or business acquired or disposed of by the
Company or its Restricted Subsidiaries, as the case may be, since the first day
of such four-quarter period, as if such acquisition or disposition occurred at
the beginning of such four-quarter period. In making a computation under the
foregoing clause (i) or (ii), (A) the amount of Indebtedness under a revolving
credit facility will be computed based on the average daily balance of such
Indebtedness during such four-quarter period, (B) if such Indebtedness bears, at
the option of the Company, a fixed or floating rate of interest, interest
thereon will be computed by applying, at the option of the Company, either the
fixed or floating rate and (C) the amount of any Indebtedness that bears
interest at a floating rate will be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness if such
Hedging Obligations have a remaining term at the date of determination in excess
of 12 months).
Notwithstanding the foregoing, the Company may, and may permit its Restricted
Subsidiaries to, incur the following Indebtedness ("Permitted Indebtedness"):
(i) Indebtedness of the Company or any Restricted Subsidiary under the Bank
Credit Facilities or one or more other credit facilities (and the incurrence by
any Restricted Subsidiary of guarantees thereof) in an aggregate principal
amount at any one time outstanding not to exceed $275,000,000, less any amounts
applied to the permanent reduction of such credit facilities pursuant to Section
1016;
(ii) Indebtedness of the Company or any Restricted Subsidiary outstanding on
the Issue Date and listed on Schedule A to this Indenture (other than
Indebtedness described under clause (i) above);
(iii) Indebtedness owed by the Company to any Wholly Owned Restricted
Subsidiary or owed by any Restricted Subsidiary to the Company or a Wholly Owned
Restricted Subsidiary (provided that such Indebtedness is held by the Company or
such Restricted Subsidiary); PROVIDED, HOWEVER, that any Indebtedness of the
Company owing to any such Restricted Subsidiary is unsecured and subordinated in
right of payment from and after such time as the Senior Notes shall become due
and payable (whether at Stated Maturity, acceleration, or otherwise) to the
payment and performance of the Company's obligations under the Senior Notes;
(iv) Indebtedness pursuant to the Senior Notes;
(v) Indebtedness of the Company or any Restricted Subsidiary under Hedging
Obligations incurred in the ordinary course of business;
(vi) Indebtedness of the Company or any Restricted Subsidiary consisting of
guarantees, indemnities or obligations in respect of purchase price adjustments
in connection with the acquisition or disposition of assets, including, without
limitation, shares of Capital Stock;
(vii) either (A) Capitalized Lease Obligations of the Company or any
Restricted Subsidiary or (B) Indebtedness under purchase money mortgages or
secured by purchase money security interests so long as (x) such Indebtedness is
not secured by any property or assets of the Company or any Restricted
Subsidiary other than the property and assets so acquired and (y) such
Indebtedness is created within 60 days of the acquisition of the related
property; PROVIDED that aggregate amount of Indebtedness under clauses (A) and
(B) does not exceed 5% of Consolidated Tangible Assets at any one time
outstanding;
(viii)Guarantees by any
Restricted Subsidiary made in accordance with Section 1021;
(ix) so long as there exists no Default or Event of Default both before and
after giving effect to the incurrence of such Indebtedness, Non-Recourse Arena
Financing, in an aggregate amount not to exceed $130,000,000, plus capitalized
interest which accrues after incurring such Non-Recourse Arena Financing and
prior to the date the Indebtedness represented thereby commences to pay cash
interest;
(x) so long as there exists no Default or Event of Default before and after
giving effect to the incurrence of such Indebtedness, Non-Recourse Film
Indebtedness;
(xi) Indebtedness of the Company not permitted by any other clause of this
covenant, in an aggregate principal amount not to exceed $5,000,000 at any one
time outstanding; and
(xii) any renewals, extensions, substitutions, refinancings or replacements
(each, for purposes of this clause, a "refinancing") of any outstanding
Indebtedness, in whole or in part, other than Indebtedness incurred pursuant to
clause (i), (iii), (v), (vi), (vii), (ix), (x) or (xi) of this definition,
including any successive refinancings thereof, so long as (A) any such new
Indebtedness is in a principal amount that does not exceed the principal amount
so refinanced, plus the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the Indebtedness refinanced or
the amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus the amount of the expenses of the Company
incurred in connection with such refinancing, (B) in the case of any refinancing
of Subordinated Indebtedness, such new Indebtedness is made subordinate to the
Senior Notes at least to the same extent as the Indebtedness being refinanced
and (C) such refinancing Indebtedness does not have an Average Life less than
the Average Life of the Indebtedness being refinanced and does not have a final
scheduled maturity earlier than the final scheduled maturity, or permit
redemption at the option of the holder earlier than the earliest date of
redemption at the option of the holder, of the Indebtedness being refinanced.
For purposes of determining compliance with this covenant, in the event that an
item of Indebtedness outstanding or to be incurred meets the criteria of more
than one of the types of Indebtedness described in the above clauses, the
Company, in its sole discretion, may classify such item of Indebtedness and only
be required to include the amount and type of such Indebtedness in one of such
clauses.
SECTION 1011. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any Restricted Subsidiaries to,
directly or indirectly, take any of the following actions:
(a) declare or pay any dividend on, or make any distribution to holders of,
any shares of the Capital Stock of the Company or any Restricted Subsidiary,
other than (i) dividends or distributions payable solely in Qualified Equity
Interests, (ii) dividends or distributions by a Restricted Subsidiary payable to
the Company or another Restricted Subsidiary, (iii) pro rata dividends or
distributions on Common Stock of Restricted Subsidiaries (other than OCC) held
by minority stockholders, provided that such dividends do not in the aggregate
exceed the minority stockholders' pro rata share of such Restricted
Subsidiaries' net income from the first day of the Company's fiscal quarter
during which the Issue Date occurs or (iv) pro rata dividends or distributions
on the Common Stock of OCC held by minority stockholders out of legally
available funds, PROVIDED that the aggregate amount of any such dividends or
distributions together with all other Restricted Payments made by OCC since the
Issue Date does not exceed an amount equal to the excess, if any, of (A)
Cumulative OCC EBITDA over (B) the product of (x) Cumulative OCC Fixed Charges
times (y) 1.5;
(b) purchase, redeem or otherwise acquire or retire for value, directly or
indirectly, any shares of Capital Stock, or any options, warrants or other
rights to acquire such shares of Capital Stock, of the Company, any Restricted
Subsidiary or any Affiliate of the Company (other than, in either case, any such
Capital Stock owned by the Company or any of its Restricted Subsidiaries), other
than (i) the redemption or retirement for value of any stock appreciation rights
with respect to the Company's Common Stock outstanding as of the date of this
Indenture and (ii) purchases, redemptions, acquisitions or retirements for value
of any shares of Capital Stock of OCC or any options, warrants or other rights
to acquire such shares of Capital Stock, PROVIDED that the aggregate amount of
any such purchases, redemptions, acquisitions or retirements together with all
other Restricted Payments made by OCC since the Issue Date does not exceed an
amount equal to the excess, if any, of (A) Cumulative OCC EBITDA over (B) the
product of (x) Cumulative OCC Fixed Charges times (y) 1.5;
(c) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal payment,
sinking fund payment or maturity, any Subordinated Indebtedness; and
(d) make any Investment (other than a Permitted Investment) in any Person
(such payments or other actions described in (but not excluded from) clauses (a)
through (d) being referred to as "Restricted Payments"), unless at the time of,
and immediately after giving effect to, the proposed Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing,
(ii) the Company could incur at least $1.00 of additional Indebtedness
pursuant to the first paragraph of Section 1010, and
(iii) the aggregate amount of all Restricted Payments made after the Issue
Date does not exceed the sum of:
(A) 50% of the aggregate Consolidated Adjusted Net Income of the Company
during the period (taken as one accounting period) from the first day of the
Company's fiscal quarter during which the Issue Date occurs to the last day of
the Company's most recently ended fiscal quarter for which internal financial
statements are available at the time of such proposed Restricted Payment (or, if
such aggregate cumulative Consolidated Adjusted Net Income is a loss, minus 100%
of such amount), plus
(B) the aggregate net cash proceeds received by the Company after the Issue
Date from the issuance or sale (other than to a Subsidiary) of either
(1) Qualified Equity Interests of the Company (excluding from this computation
proceeds of an Equity Offering received by the Company that are used by it to
redeem Senior Notes pursuant to Section 1011(b)) or (2) debt securities or
Disqualified Stock that have been converted into or exchanged for Qualified
Stock of the Company, together with the aggregate net cash proceeds received by
the Company at the time of such conversion or exchange, plus
(C) an amount equal to the net reduction in Investments by the Company and
its Restricted Subsidiaries, subsequent to the date of this Indenture, resulting
from payments of interest on Indebtedness, dividends, repayments of loans or
advances or other transfers of assets, in each case to the Company or any such
Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such
Investment, or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), but only to the extent such amounts are not included in the
calculation of Consolidated Adjusted Net Income and not to exceed in the case of
any Investment the amount of the Investment previously made by the Company or
any Restricted Subsidiary in such Person or Unrestricted Subsidiary.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may
take the following actions, so long as no Default or Event of Default has
occurred and is continuing or would occur:
(a) the payment of any dividend within 60 days after the date of declaration
thereof, if at the declaration date such payment would not have been prohibited
by the foregoing provisions;
(b) the repurchase, redemption or other acquisition or retirement for value
of any Qualified Entity Interests of the Company, in exchange for, or out of the
net cash proceeds of a substantially concurrent issuance and sale (other than to
a Subsidiary) of, Qualified Equity Interests of the Company;
(c) the purchase, redemption, defeasance or other acquisition or retirement
for value of any Subordinated Indebtedness in exchange for, or out of the net
cash proceeds of a substantially concurrent issuance and sale (other than to a
Subsidiary) of, shares of Qualified Equity Interests of the Company;
(d) the purchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Indebtedness in exchange for, or out of the net cash
proceeds of a substantially concurrent issuance or sale (other than to a
Restricted Subsidiary) of, Subordinated Indebtedness, so long as the Company or
a Restricted Subsidiary would be permitted to refinance such original
Subordinated Indebtedness with such new Subordinated Indebtedness pursuant to
clause (xii) of the definition of Permitted Indebtedness in Section 1010;
(e) the repurchase of any Subordinated Indebtedness at a purchase price not
greater than 101% of the principal amount of such Subordinated Indebtedness in
the event of a change of control in accordance with provisions similar to the
provisions of Section 1015; PROVIDED that, prior to or simultaneously with such
repurchase, the Company has
made the Change of Control Offer as provided in such covenant with respect to
the Senior Notes and has repurchased all Senior Notes validly tendered for
payment in connection with such Change of Control Offer;
(f) the purchase, redemption, acquisition, cancellation or other retirement
for value of shares of Capital Stock of the Company, options on any such shares
or related stock appreciation rights or similar securities issued after the date
of this Indenture which are held by directors, officers or employees or former
directors, officers or employees (or their estates or beneficiaries under their
estates) or by any employee benefit plan, upon death, disability, retirement or
termination of employment or pursuant to the terms of any employee benefit plan
or any other agreement under which such shares of stock or related rights were
issued; PROVIDED that the aggregate cash consideration paid for such purchase,
redemption, acquisition, cancellation or other retirement of such shares of
Capital Stock, options, stock appreciation rights or similar securities after
the Issue Date does not exceed $500,000 in any fiscal year;
(g) loans or advances to officers, directors and employees of the Company or
any of its Restricted Subsidiaries made in the ordinary course of business after
the date of the initial issuance of the Senior Notes in an amount not to exceed
$2,000,000 in the aggregate at any one time outstanding;
(h) Investments acquired in exchange for Qualified Equity Interests of OCC
issued by OCC;
(i) dividends, distributions, or repayment of capital contributions by the
Arena Company to its unaffiliated members in accordance with the terms of the
Operating Agreement of the Arena Company as in effect on the date of this
Indenture; and
(j) the making of any Investment by the Company in the Arena Company for the
purpose of funding the construction of the Pepsi Center prior to the sale of the
Arena Notes, or as required by the purchasers of the Arena Senior Notes, in any
event not to exceed $50,000,000 in the
aggregate, including amounts invested as of the Issue Date.
The actions described in clauses (b), (c), (e), (f), (g), (h), (i) and (j) of
the second paragraph of this Section 1011 will be Restricted Payments that will
be permitted to be taken in accordance with this paragraph but will reduce the
amount that would otherwise be available for Restricted Payments under clause
(iii) of the first paragraph of this Section 1011 and the actions described in
clauses (a) and (d) of this paragraph will be Restricted Payments that will be
permitted to be taken in accordance with this paragraph and will not reduce the
amount that would otherwise be available for Restricted Payments under clause
(iii) of the first paragraph of this Section 1011.
For the purpose of making any calculations under this Indenture (i) if a
Restricted Subsidiary is designated an Unrestricted Subsidiary, the Company will
be deemed to have made an Investment in an amount equal to the fair market value
of the net assets of such Restricted Subsidiary at the time of such designation
as determined by the Board of Directors of the Company, whose good faith
determination will be conclusive, (ii) any property transferred to or from an
Unrestricted Subsidiary will be valued at fair market value at the time of such
transfer, as determined by the Board of Directors of the Company, whose good
faith determination will be conclusive and (iii) subject to the foregoing, the
amount of any Restricted Payment, if other than cash, will be determined by the
Board of Directors of the Company, whose good faith determination will be
conclusive. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by Section 1011 were computed.
If the aggregate amount of all Restricted Payments calculated under the
foregoing provision includes an Investment in an Unrestricted Subsidiary or
other person that thereafter becomes a Restricted Subsidiary, the aggregate
amount of all Restricted Payments calculated under the foregoing provision will
be reduced by the lesser of (x) the net asset value of such Subsidiary at the
time it becomes a Restricted Subsidiary and (y) the initial amount of such
Investment.
If an Investment resulted in the making of a Restricted Payment, the aggregate
amount of all Restricted Payments calculated under the foregoing provision will
be reduced by the amount of any net reduction in such Investment (resulting from
the payment of interest or dividends, loan repayment, transfer of assets or
otherwise), to the extent such net reduction is not included in the Company's
Consolidated Adjusted Net Income; PROVIDED that the total amount by which the
aggregate amount of all Restricted Payments may be reduced may not exceed the
lesser of (x) the cash proceeds received by the Company and its Restricted
Subsidiaries in connection with such net reduction and (y) the initial amount of
such Investment.
In computing the Consolidated Adjusted Net Income of the Company for purposes of
clause (iii)(A) of the first paragraph of this covenant, (i) the Company may use
audited financial statements for the portions of the relevant period for which
audited financial statements are available on the date of determination and
unaudited financial statements and other current financial data based on the
books and records of the Company for the remaining portion of such period and
(ii) the Company will be permitted to rely in good faith on the financial
statements and other financial data derived from its books and records that are
available on the date of determination. If the Company makes a Restricted
Payment that, at the time of the making of such Restricted Payment, would in the
good faith determination of the Company be permitted under the requirements of
this Indenture, such Restricted Payment will be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated
Adjusted Net Income of the Company for any period.
SECTION 1012. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES.
The Company (a) will not permit any Restricted Subsidiary to issue any Capital
Stock (other than to the Company or a Wholly Owned Restricted Subsidiary) and
(b) will not, and will not permit any Restricted Subsidiary to, transfer,
convey, sell, lease or otherwise dispose of any Capital Stock of any Restricted
Subsidiary to any Person (other than the
Company or a Wholly Owned Restricted Subsidiary); provided, however, that this
covenant will not prohibit (i) the sale or other disposition of all, but not
less than all, of the issued and outstanding Capital Stock of a Restricted
Subsidiary owned by the Company and its Restricted Subsidiaries in compliance
with the other provisions of this Indenture, (ii) subject to compliance by the
Company with the provisions of Section 1009 and other provisions of the
Indenture, the issuance and sale by OCC of any of its Common Stock (other than
Disqualified Stock) to any Person (other than to the Company or a Wholly Owned
Restricted Subsidiary), (iii) the ownership by directors of director's
qualifying shares or the ownership by foreign nationals of Capital Stock of any
Restricted Subsidiary, to the extent mandated by applicable law or
(iv) issuances, sales, transfers or conveyances of Qualified Equity Interests in
a Restricted Subsidiary so long as such sale complies with the provisions of
Section 1016 and the Company applies the Net Cash Proceeds from such
transaction, if any, in accordance with such covenant.
The Company shall not permit any Restricted Subsidiary (other than OCC) to issue
any Preferred Stock.
SECTION 1013. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into or suffer to exist any transaction with, or for the
benefit of, any Affiliate of the Company or any beneficial owner of 10% or more
of any class of the Capital Stock of the Company at any time outstanding
("Interested Persons"), unless (a) such transaction is on terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in a comparable arm's length transaction
with third parties who are not Interested Persons and (b) the Company delivers
to the Trustee (i) with respect to any transaction or series of related
transactions entered into after the Issue Date involving aggregate payments in
excess of $5,000,000, a resolution of the Board of Directors of the Company or
(in the case of a transaction involving OCC), a resolution of the Board of
Directors of OCC set forth in an Officers' Certificate certifying that such
transaction or transactions complies or comply with clause (a) above
and that such transaction or transactions has or have been approved by the Board
of Directors (including a majority of the Disinterested Directors) of the
Company or (in the case of a transaction involving OCC) by the Board of
Directors (including a majority of the Disinterested Directors) of OCC and
(ii) with respect to a transaction or series of related transactions involving
aggregate payments equal to or greater than $10,000,000, a written opinion as to
the fairness to the Company or such Restricted Subsidiary of such transaction or
series of transactions from a financial point of view issued by an investment
banking, accounting or valuation firm of national standing.
The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted Subsidiaries;
(B) the Company from paying reasonable and customary regular compensation
and fees to directors of the Company or any Restricted Subsidiary who are not
employees of the Company or any Restricted Subsidiary; and
(C) transactions permitted by the provisions of Section 1011.
SECTION 1014. LIMITATION ON LIENS.
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, create, incur, assume or suffer to exist any Lien of any kind on
or against any of its properties or assets, including any shares of stock or
debt of any Restricted Subsidiary, whether owned at the Issue Date or thereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (a) in the case of any Lien
securing Subordinated Indebtedness, the Senior Notes are secured by a Lien on
such property, assets or proceeds that is senior in priority to such Lien and
(b) in the case of any other Lien, the Senior Notes are equally and ratably
secured with the obligation or liability secured by such Lien.
Notwithstanding the foregoing, the Company may, and may permit any Restricted
Subsidiary to, incur the following Liens ("Permitted Liens"):
(i) Liens (other than Liens securing Indebtedness under the Bank Credit
Facilities) existing as of the Issue Date;
(ii) Liens on property or assets of the Company or any Restricted Subsidiary
securing Indebtedness under the Bank Credit Facilities or one or more other
credit facilities in a principal amount not to exceed the principal amount of
the outstanding Indebtedness permitted by clause (i) of the definition of
"Permitted Indebtedness" in Section 1010;
(iii) Liens granted in favor of the Company or any Wholly Owned Restricted
Subsidiary;
(iv) Liens securing the Senior Notes or any guarantee entered into pursuant
to Section 1021;
(v) any interest or title of a lessor under any Capitalized Lease Obligation
that was not entered into in violation of Section 1010;
(vi) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness by
the Company or any Restricted Subsidiary; PROVIDED that such Lien does not
extend to any property or assets of the Company or any Restricted Subsidiary
other than the property and assets acquired in connection with the incurrence of
such Acquired Indebtedness;
(vii) Liens securing Hedging Obligations permitted to be incurred pursuant to
clause (v) of the definition of "Permitted Indebtedness" in Section 1010;
(viii) Liens arising from purchase money mortgages and purchase money security
interests incurred in the ordinary course of the business of the Company;
PROVIDED that (A) the related Indebtedness is not secured by any property or
assets of the Company or any Restricted Subsidiary other than the property and
assets so acquired, (B) the Lien securing such Indebtedness is created with
60 days of
such acquisition and (C) the related Indebtedness was not incurred in violation
of Section 1010;
(ix) statutory or common law Liens of landlords, carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings and, if required by
GAAP, a reserve or other appropriate provision has been made therefor;
(x) Liens for taxes, assessments, government charges or claims that are
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and, if required by GAAP, a reserve or other appropriate
provision has been made therefor;
(xi) Liens incurred or deposits made to secure the performance of tenders,
bids, leases, statutory obligations, surety and appeal bonds, government
contracts, performance bonds and other obligations of a like nature incurred in
the ordinary course of business (other than contracts for the payment of money);
(xii) Easements, rights-of-way, restrictions, municipal and zoning ordinances
and other similar charges or encumbrances, titled defects and minor
irregularities that do not interfere in any material respect with the business
of the Company or any Restricted Subsidiary incurred in the ordinary course of
business;
(xiii) Liens arising by reason of any judgment, decree or order of any court,
so long as such Lien is adequately bonded and any appropriate legal proceedings
that may have been duly initiated for the review of such judgment, decree or
order have not been finally terminated or the period within which such
proceedings may be initiated has not expired;
(xiv) Liens granted by the Arena Company securing any permitted Non-Recourse
Arena Financing, but only to the extent such Liens are limited to the realty,
fixtures, equipment and other assets comprising the Pepsi Center (including
rights under contracts to which the Arena Company is a party, such as a lessor
under leases relating thereto);
(xv) Liens granted by Beacon securing Non-Recourse Film Indebtedness
permitted hereby, but only to the extent such Liens are limited and apply only
to the film negatives for the motion pictures financed with such Indebtedness
and any rights of the Company or the Restricted Subsidiaries or the Company of
ownership, distribution or exploitation of such motion pictures;
(xvi) Liens incurred by the Arena Company in favor of the City of Denver in
connection with the Arena Agreement;
(xvii) Liens incurred or deposits made in connection with workers'
compensation, unemployment insurance and other types of social security;
(xviii) leases or subleases granted to others that do not materially interfere
with the business of the Company or any Restricted Subsidiary incurred in the
ordinary course of business, and Liens arising from filing UCC statements in
connection with such leases or subleases; and
(xix) any extension, renewal or replacement, in whole or in part, of any Lien
described in the foregoing clauses (i) through (xviii); PROVIDED that any such
extension, renewal or replacement is no more restrictive in any material respect
than the Lien so extended, renewed or replaced and does not extend to any
additional property or assets.
Nothwithstanding anything to the contrary herein, the Company will not, and will
not permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind, whether as a Permitted Lien or
otherwise, on or with respect to any of the Collateral or assign or otherwise
convey any right to receive income theron, except for the Lien of the Indenture
and the Pledge Agreement.
SECTION 1015. PURCHASE OF SENIOR NOTES UPON A CHANGE OF CONTROL.
(a) If a Change of Control occurs at any time, then each Holder of Senior
Notes shall have the right to require that the Company purchase such Holder's
Senior Notes, in whole or in part in integral multiples of $1,000, at a purchase
price in cash equal to (i) 101% of the Accreted Value of such Senior Notes, if
the Change of Control Payment Date (as defined herein) is on or before December
15, 2002, and (ii) 101% of the aggregate principal amount at maturity of the
Senior Notes, plus accrued and unpaid interest, if any, thereon to the date of
purchase ("Change of Control Purchase Date"), pursuant to the offer described
below (the "Change of Control Offer").
(b) Within 30 days following any Change of Control, the Company shall notify
the Trustee thereof and give written notice of such Change of Control to each
holder of Senior Notes by first-class mail, postage prepaid, at its address
appearing in the security register, stating:
(i) that a Change of Control has occurred, that the Change of Control Offer
is being made pursuant to this Section 1015 and that all Senior Notes validly
tendered will be accepted for payment;
(ii) the purchase price and the purchase date, which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is
mailed or such later date as is necessary to comply with requirements under the
Exchange Act (the "Change of Control Payment Date");
(iii) that any Senior Note not tendered shall continue to accrete value or
accrue interest, as applicable;
(iv) that, unless the Company defaults in the payment of the purchase price,
any Senior Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Purchase Date;
(v) that Holders electing to have any Senior Note purchased pursuant to the
Change of Control Offer will be required to surrender such Note, together with
the form entitled "Option of the Holder to Elect Purchase" on the reverse side
of such Senior Note completed, to the Paying Agent at the address specified in
the notice prior to the close of
business on the Business Day immediately preceding the Change of Control Payment
Date;
(vi) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the close of business on the third Business Day
immediately preceding the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Senior Notes delivered for purchase and a statement that such Holder
is withdrawing his election to have such Senior Notes purchased; and
(vii) that Holders whose Senior Notes are being purchased only in part will be
issued new Senior Notes equal in principal amount to the unpurchased portion of
the Senior Notes surrendered; PROVIDED that each Senior Note purchased and each
new Senior Note issued shall be in a principal amount of $1,000 or integral
multiples thereof.
(c) On the Change of Control Payment Date, the Company shall:
(i) accept for payment Senior Notes or portions thereof tendered pursuant to
the Change of Control Offer;
(ii) deposit one day prior to the Change of Control Purchase Date with the
Paying Agent money sufficient to pay the purchase price of all Senior Notes or
portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee, all Senior Notes or
portions thereof so accepted together with an Officers' Certificate specifying
the Senior Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail, to the Holders of Senior Notes so
accepted, payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail to such Holders a new Senior Notes equal in
principal amount to any unpurchased portion of the Senior Notes surrendered;
PROVIDED that each Senior Note purchased and each new Senior Note issued shall
be in a principal amount of $1,000 or integral multiples thereof. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Purchase Date. For purposes of this
Section 1015, the Trustee shall act as Paying Agent.
(d) The Company shall comply with the applicable tender offer rules
including Rule-14e under the Exchange Act, and any other applicable securities
laws and regulations in connection with a Change of Control Offer. To the
extent that provisions of any applicable securities laws or regulations conflict
with provisions of this Section 1015, the Company shall comply with such
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 1015 by virtue thereof.
SECTION 1016. LIMITATION ON CERTAIN ASSET SALES.
The Company will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale (other than a Collateral Sale governed by the
provisions of Section 1009) unless (i) the consideration received by the Company
or such Restricted Subsidiary for such Asset Sale is not less than the fair
market value of the assets sold (as determined by the Board of Directors of the
Company (or, in the case of an Asset Sale by OCC, by the Board of Directors of
OCC), whose good faith determination will be conclusive) and (ii) the
consideration received by the Company or the relevant Restricted Subsidiary in
respect of such Asset Sale consists of at least 85% cash or Cash Equivalents.
If the Company or any Restricted Subsidiary engages in any such Asset Sale, the
Company may, at its option, within 12 months after such Asset Sale, (i) apply
all or a portion of the Net Cash Proceeds to the permanent reduction of amounts
outstanding under the Bank Credit Facilities or to the permanent reduction of
other senior Indebtedness of the Company or a Restricted Subsidiary or
(ii) invest (or enter into a legally binding agreement to invest) all or a
portion of such Net Cash Proceeds in properties and assets to replace the
properties and assets that were the subject of the Asset Sale or in properties
and assets of a nature or type or that will be used in a business similar or
related to the nature or type of the properties and assets of or the business of
the Company or its Restricted Subsidiaries, as the case may be, existing
on the Issue Date. If any such legally binding agreement to invest such Net
Cash Proceeds is terminated, the Company may, within 90 days of such termination
or within 12 months of such Asset Sale, whichever is later, invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as described in this paragraph constitutes "Excess Proceeds".
When the aggregate amount of Excess Proceeds exceeds $5,000,000, the Company
will, within 30 days thereafter, make an offer to purchase Senior Notes from all
holders of Senior Notes, on a pro rata basis, at a purchase price in cash equal
to (i) 100% of the Accreted Value thereof, on the date of purchase, if such
purchase date is on or before December 15, 2002, and (ii) 100% of the aggregate
principal amount at maturity of the Senior Notes, plus accrued interest, if any,
to the date such offer to purchase is consummated, if such date of purchase is
after December 15, 2002. To the extent that the aggregate Accreted Value
and/or principal amount at maturity of Senior Notes tendered pursuant to such
offer to purchase is less than the Excess Proceeds, the Company may use the
remaining Excess Proceeds for general corporate purposes. If the aggregate
Accreted Value and/or principal amount at maturity of Senior Notes validly
tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the
Senior Notes to be purchased will be selected on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds will be
reset to zero.
SECTION 1017. UNRESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary so long as (i) neither the Company nor any Restricted Subsidiary is
directly or indirectly liable for any Indebtedness of such Subsidiary, (ii) no
default with respect to any Indebtedness of such Subsidiary would permit (upon
notice, lapse of time or otherwise) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity,
(iii) any Investment in such Subsidiary made as a result of designating such
Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section
1011, (iv) neither the Company nor any Restricted Subsidiary has a contract,
agreement, arrangement, understanding or obligation of any kind, whether written
or oral, with such Subsidiary other than those that might be obtained at the
time of such redesignation from persons who are not Affiliates of the Company,
(v) neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other equity interest in
such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results and (vi) such Unrestricted Subsidiary has at least one director on its
Board of Directors that is not a director or executive officer of the Company
and has at least one executive officer that is not a director or executive
officer of the Company or any of its Restricted Subsidiaries. Without limiting
the generality of the foregoing, the Company may designate any of its
Subsidiaries existing as of the Issue Date (other than the Arena Company, Ascent
Arena and Development Corporation, a Delaware corporation, Ascent Sports, Inc.,
Colorado Avalanche, LLC., the Denver Nuggets Limited Partnership, Beacon and its
subsidiaries and, except as provided in clause (ii) of the definition of
"Restricted Subsidiary", OCC and its subsidiaries (but not its foreign
subsidiaries) and the successors to any of the foregoing) or any successor to
any of them as an Unrestricted Subsidiary and may sell, transfer or otherwise
dispose of any properties or assets of any such Subsidiary to an Unrestricted
Subsidiary in the ordinary course of business.
(b) The Board of Directors of the Company may designate any Unrestricted
Subsidiary as a Restricted Subsidiary; PROVIDED that (i) no Default or Event of
Default has occurred and is continuing following such designation and (ii) the
Company could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the first paragraph of Section 1010
(treating any Indebtedness of such Unrestricted Subsidiary as the incurrence of
Indebtedness by a Restricted Subsidiary).
SECTION 1018. LIMITATION ON DIVIDENDS AND OTHER
PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary or
(d) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of:
(i) any agreement in effect on the Issue Date;
(ii) customary non-assignment provisions of any lease governing a leasehold
interest of the Company or any Restricted Subsidiary;
(iii) the refinancing or successive refinancing of Indebtedness incurred under
the agreements in effect on the Issue Date, so long as such encumbrances or
restrictions are no less favorable to the Company or any Restricted Subsidiary
than those contained in such original agreement;
(iv) any agreement or other instrument of a person acquired by the Company or
any Restricted Subsidiary in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any person, or the properties or assets of any person, other than
the person, or the property or assets of the person, so acquired;
(v) the Arena Agreement or the incurrence of Non-Recourse Arena Financing;
(vi) the incurrence of Non-Recourse Film Indebtedness;
(viii) customary restrictions on the assignment, transfer or subletting
of any properties or asset such as leases, licenses, contracts, or conveyances;
(ix) restrictions on the transfer or assignment of any properties or assets
agreed to in the ordinary course of business, not relating to any Indebtedness,
and that do not, individually or in the aggregate, interfere in any material
respect with the rights of holders of the Senior Notes;
(x) secured Indebtedness otherwise permitted to be incurred pursuant to the
provisions of the Section 1014 the terms of which limit the right of the debtor
to dispose of the assets securing such Indebtedness; or
(xi) with respect to a Restricted Subsidiary other than OCC, an agreement
that has been entered into for the sale or disposition of all or substantially
all of the Capital Stock, or properties or assets, of such Restricted
Subsidiary, PROVIDED that the transaction contemplated thereby shall be
consummated not later than 90 days after the date of such agreement.
SECTION 1019. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 803 or Sections 1007, 1018 and 1020
through 1022, inclusive, or any covenant or condition set forth in the Pledge
Agreement, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Senior Notes, by Act of
such Holders, waive such compliance in such instance with such term, provision
or condition, but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
SECTION 1020. PAYMENT FOR CONSENT.
Neither the Company nor any of its Restricted Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any
Senior Notes for or as an inducement to any consent, waiver or amendment of any
of the terms or provisions of this Indenture or the Senior Notes unless such
consideration is offered to be paid or is paid to all Holders of the Senior
Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
SECTION 1021. LIMITATION ON GUARANTEES OF INDEBTEDNESS BY RESTRICTED
SUBSIDIARIES.
The Company will not permit any Restricted Subsidiary, directly or indirectly,
to guarantee, assume or in any other manner become liable for the payment of any
Indebtedness of the Company or any Indebtedness of any other Restricted
Subsidiary, unless (a) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture providing for a guarantee of payment of the
Senior Notes by such Restricted Subsidiary and (b) with respect to any guarantee
of Subordinated Indebtedness by a Restricted Subsidiary, any such guarantee is
subordinated to such Restricted Subsidiary's guarantee with respect to the
Senior Notes at least to the same extent as such Subordinated Indebtedness is
subordinated to the Senior Notes, provided that the foregoing provision will not
be applicable to any guarantee by any Restricted Subsidiary that existed at the
time such person became a Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such person becoming a Restricted
Subsidiary.
Any guarantee by a Restricted Subsidiary of the Senior Notes pursuant to the
preceding paragraph may provide by its terms that it will be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer
to any person not an Affiliate of the Company of all of the Company's and the
Restricted Subsidiaries' Capital Stock in, or all or substantially all the
assets of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by this Indenture), (ii) the release or discharge of the guarantee
that resulted in the creation of such guarantee of the Senior Notes, except a
discharge or release by or as a result of payment under such guarantee or
(iii) the designation of such Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with the terms of this Indenture.
SECTION 1022. REPORTS.
At all times from and after the earlier of (i) the date of the commencement of
an Exchange Offer or the effectiveness of the Shelf Registration Statement and
(ii) the date six months after the Issue Date, in either case, whether or not
the Company is then required to file reports with the Commission, the Company
will file with the Commission all such annual reports, quarterly reports and
other documents that the Company would be required to file if it were subject to
Sections 13(a) or 15(d) under the Exchange Act.
The Company will also be required (a) to supply to the Trustee and each Holder
of Senior Notes, or supply to the Trustee for forwarding to each such holder,
without cost to such holder, copies of such reports and other documents within
15 days after the date on which the Company files such reports and documents
with the Commission or the date on which the Company would be required to file
such reports and documents if the Company were so required and (b) if filing
such reports and documents with the Commission is not accepted by the Commission
or is prohibited under the Exchange Act, to supply at the Company's cost copies
of such reports and documents to any prospective Holder of Senior Notes promptly
upon written request. In addition, at all times prior to the earlier of the date
of the Shelf Registration Statement and the date six months after the Issue
Date, the Company will, at its cost, deliver to each Holder of the Senior Notes
quarterly and annual reports substantially equivalent to those that would be
required by the Exchange Act. Furthermore, at all times prior to the Shelf
Registration Statement, the Company will supply at the Company's cost copies of
such reports and documents to any prospective holder of Senior Notes promptly
upon written request.
SECTION 1023. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company 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 Senior Notes
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.
ARTICLE ELEVEN
REDEMPTION OF SENIOR NOTES
SECTION 1101. RIGHT OF REDEMPTION.
(a) The Senior Notes may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time on or after December 15, 2001,
subject to the conditions and at the Redemption Prices specified in the form of
Senior Note, together with accrued interest, if any, to the Redemption Date.
(b) Notwithstanding the foregoing, at any time or from time to time prior to
December 15, 2000, the Company may redeem, on one or more occasions, up to 35%
of the originally issued principal amount at maturity of the Senior Notes with
the net proceeds of one or more Equity Offerings at a redemption price equal to
11f% of the Accreted Value thereof, plus accrued interest, if any, to the
redemption date (subject to the right of holders of record on the relevant
record date to receive interest due on an interest payment date); PROVIDED that,
immediately after giving effect to such redemption, at least 65% of the
originally issued principal amount at maturity of the Senior Notes remains
outstanding; and PROVIDED FURTHER that such redemptions shall occur within 45
days of the date of closing of each Equity Offering.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Senior Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Senior Notes pursuant to Section 1101
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date
and of the principal amount of Senior Notes to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Senior Notes to be redeemed pursuant to Section 1104.
SECTION 1104. SELECTION BY TRUSTEE OF SENIOR NOTES TO BE REDEEMED.
If less than all the Senior Notes are to be redeemed, the particular Senior
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Senior Notes not previously
called for redemption by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal of Senior Notes; PROVIDED, HOWEVER, that no such partial
redemption shall reduce the portion of the principal amount of a Senior Note not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the Senior Notes
selected for redemption and, in the case of any Senior Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Senior Notes shall relate, in the case of
any Senior Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Senior Note which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided for in Section 107
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Senior Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Senior Notes are to
be redeemed, the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Senior Notes to be redeemed,
(4) in case any Senior Note is to be redeemed in part only, the notice which
relates to such Senior Note shall state that on and after the Redemption Date,
upon surrender of such Note, the holder will receive, without charge, a new
Senior Note or Senior Notes of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued interest,
if any, to the Redemption Date payable as provided in Section 1107) will become
due and payable upon each such Note, or the portion thereof, to be redeemed, and
that interest thereon will cease to accrue on and after said date,
(6) the place or places where such Senior Notes are to be surrendered for
payment of the Redemption Price and accrued interest, if any, and
(7) the CUSIP number.
Notice of redemption of Senior Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money sufficient to
pay the Redemption Price of, and accrued interest on, all the Senior Notes which
are to be redeemed on that date.
SECTION 1107. SENIOR NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Senior Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Senior Notes
shall cease to
bear interest. Upon surrender of any such Senior Note for redemption in
accordance with said notice, such Senior Note shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Senior Notes, or one or more Predecessor Senior Notes, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 309.
If any Senior Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Senior Notes.
SECTION 1108. SENIOR NOTES REDEEMED IN PART.
Any Senior Note which is to be redeemed only in part shall be surrendered at the
office or agency of the Company maintained for such purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holders attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Senior Note without service
charge, a new Senior Note or Senior Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Senior Note so surrendered.
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. COMPANY OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, with respect to the Senior
Notes, elect to have either Section 1202 or Section 1203 be applied to all
Outstanding Senior Notes upon compliance with the
conditions set forth below in this Article Twelve.
SECTION 1202. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1201 of the option applicable to this
Section 1202, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Senior Notes on the date the
conditions set forth in Section 1204 are satisfied (hereinafter, "legal
defeasance"). For this purpose, such legal defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Senior Notes, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1205 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Senior Notes and this Indenture insofar as such
Senior Notes are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Senior Notes to receive
payments in respect of the principal of (and premium, if any, on) and interest
on such Senior Notes when such payments are due, (B) the Company's obligations
to issue temporary Senior Notes, register the transfer or exchange of any Senior
Notes, replace mutilated, destroyed, lost or stolen Senior Notes, maintain an
office or agency for payments in respect of the Senior Notes and segregate and
hold such payments in trust, (C) the rights, powers, trusts, duties and
immunities of the Trustee, and (D) this Article Twelve. Subject to compliance
with this Article Twelve, the Company may exercise its option under this
Section 1202 notwithstanding the prior exercise of its option under Section 1203
with respect to the Senior Notes.
SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1201 of the option applicable to this
Section 1203, the Company shall be released from its obligations under any
covenant contained in Sections 801 and 803 and in Section 1007 through 1018 and
Sections 1020 through 1022 with respect to the Outstanding Senior Notes on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and
the Senior Notes shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Senior Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(3) and
(4), but, except as specified above, the remainder of this Indenture and such
Senior Notes shall be unaffected thereby.
SECTION 1204. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1202 or
Section 1203 to the Outstanding Senior Notes:
(1) the Company must irrevocably deposit or cause to be deposited with the
Trustee, as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of the Senior Notes, money in an
amount, or U.S. Government Obligations that through the scheduled payment of
principal and interest thereon will provide money in an amount, or a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay and discharge the principal of (and
premium, if any, on) and interest on the Outstanding Senior Notes at maturity
(or upon redemption, if applicable, as of a date no later than December 15,
2001, PROVIDED that the Company shall have complied with the notice provisions
set forth under this Indenture in connection with such optional redemption) of
such principal or installment of interest;
(2) no Default or Event of Default has occurred and is continuing on the
date of such deposit or, insofar as an event of bankruptcy under Section 501(7)
and (8) above is concerned, at any time during the period
ending on the 91st day after the date of such deposit;
(3) such legal defeasance or covenant defeasance may not result in a breach
or violation of, or constitute a default under, this Indenture or any material
agreement or instrument to which the Company is a party or by which it is bound;
(4) in the case of legal defeasance, the Company must deliver to the Trustee
an Opinion of Counsel stating that the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or since the date
hereof, there has been a change in applicable federal income tax law, to the
effect, and based thereon such opinion must confirm that, the holders of the
outstanding Senior Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such legal defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred;
(5) in the case of covenant defeasance, the Company must have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of the Senior
Notes outstanding will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred; and
(6) the Company must have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for relating to either the legal defeasance or the covenant defeasance, as the
case may be, have been complied with.
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Senior Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Senior Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Senior Notes of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Senior Notes.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance, as
applicable, in accordance with this Article.
SECTION 1206. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in accordance
with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company obligations under this Indenture, the Pledge
Agreement and the Senior Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1202 or 1203, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1205; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any) or interest on any Senior Note
following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Senior Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE THIRTEEN
SECURITY
SECTION 1301. PLEDGE AGREEMENT.
In order to secure the due and punctual payment of the principal of (premium, if
any) and interest on the Senior Notes when and as the same shall be due and
payable, whether on an Interest Payment Date, at the Stated Maturity, by
acceleration, call for redemption, or otherwise, and interest on the overdue
principal, premium and interest, if any, of the Senior Notes and performance of
all other obligations of the Company to the Holders or the Trustee under this
Indenture and the Senior Notes, according to the terms hereunder or thereunder,
the Company will make an assignment of its right, title and interest in and to
the Collateral to the Trustee pursuant to the Pledge Agreement and to the extent
therein provided, no later than the date of the first issuance of the Senior
Notes hereunder. Each Holder, by its acceptance of a Senior Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of Collateral) as the same may
be in effect or may be amended from time to time in accordance with the terms
thereof and hereof. The Company (a) will forever warrant and defend the title
to the Collateral against the claims of all persons whatsoever, (b) will
execute, acknowledge and deliver to the Trustee such further assignments,
transfers, assurances or other instruments as the Trustee may reasonably require
or request, and (c) will do or cause to be done all such acts and things as may
be necessary or proper, or as may be required by the Trustee, to assure and
confirm to the Trustee the security interest in the Collateral contemplated
hereby and by the Pledge Agreement or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Senior Notes secured hereby, according to the intent
and purposes herein expressed. The Company shall take, or cause its
Subsidiaries to take, upon request of the Trustee, any and all actions
reasonably required to cause the
Pledge Agreement to create and maintain, as security for this Indenture
Obligations of the Company, a valid and enforceable first priority Lien in and
on the Collateral, in favor of the Trustee, superior to and prior to the rights
of all third Persons, and subject to no other Liens.
SECTION 1302. RECORDING, ETC.
(a) The Company will cause, at its own expense, the Pledge Agreement and
this Indenture and all amendments or supplements thereto to be registered,
recorded and filed or re-recorded, re-filed and renewed in such manner and in
such place or places, if any, as may be required by law in order fully to
preserve and protect the security interests created under the Pledge Agreement
and to effectuate and preserve the security therein of the Holders and all
rights of the Trustee.
(b) The Company shall furnish to the Trustee, within 30 days after July 1 in
each year beginning with July 1, 1998, an Opinion of Counsel, dated as of such
date, either (i) stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance as
is necessary to maintain the Lien of the Pledge Agreement and reciting with
respect to the security interests in the Collateral the details of such action
or referring to prior Opinions of Counsel in which such details are given, and
stating that all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the rights
of the Holders and the Trustee hereunder and under the Pledge Agreement with
respect to the security interests in the Collateral or (ii) stating that, in the
opinion of such counsel, no such action is necessary to maintain such Lien and
assignment.
SECTION 1303. RELEASE OF COLLATERAL.
Upon compliance by the Company with the conditions set forth below in respect of
any Repurchase Offer Triggering Event, and upon delivery by the Company to the
Trustee of an Opinion of Counsel to the effect that such conditions have been
met, the Trustee will release the Collateral from the Lien of the Indenture
and Pledge Agreement and reconvey the Collateral to the Company.
(a) The Company will have the right to obtain a release of the Collateral
upon compliance with the provisions of Section 1009 and the condition that the
Company deliver to the Trustee the following:
(i) A notice from the Company (A) requesting the release of the Collateral,
(B) specifying the value of the Collateral computed on the basis of the Current
Market Price per share of Common Stock of OCC on a date within 60 days of such
Company notice (the "Valuation Date") and (C) in the case where the Repurchase
Offer Triggering Event is a Collateral Sale, (x) stating that the purchase price
to be received is at least equal to the value of the Collateral computed on the
basis of the Current Market Price per share of Common Stock of OCC on the
Valuation Date, (y) confirming the sale of, or an agreement to sell, the
Collateral in a bona fide sale to a person that is not an Affiliate of the
Company or, in the event that such sale is to a Person that is an Affiliate,
confirming that such sale is made in compliance with the provisions of Section
1013 and (z) confirming that such Collateral Sale complies with the terms and
conditions of the Indenture with respect thereto.
(ii) An Officers' Certificate of the Company stating that (A) such Collateral
Sale complies with the terms and conditions of the Indenture with respect to
Collateral Sales, (B) all Net Cash Proceeds from the sale of the Collateral will
be applied pursuant to the provisions of the Indenture in respect of Collateral
Sales, (C) there is no Default or Event of Default in effect or continuing on
the date thereof, the Valuation Date or the date of such Collateral Sale, as the
case may be, (D) the release of the Collateral will not result in a Default or
Event of Default under the Indenture and (E) all conditions precedent in the
Indenture relating to such release of Collateral have been complied with, and
(iii) All documentation required by the Trust Indenture Act prior to the
release of Collateral by the Trustee.
(b) The release of any Collateral from the terms of this Indenture and the
Pledge Agreement shall not be deemed to impair the security under this Indenture
in contravention of the
provisions hereof and thereof, if and to the extent the Collateral is released
pursuant to this Indenture and the Pledge Agreement. To the extent applicable,
the Company shall cause TIA ' 313(b), relating to reports, and TIA ' 314(d),
relating to the release of property or securities from the Lien and security
interest of the Pledge Agreement and relating to the substitution therefor of
any property or securities to be subjected to the Lien and security interest of
the Pledge Agreement, to be complied with. Any certificate or opinion required
by TIA ' 314(d) may be made by an Officer of the Company except in cases where
TIA ' 314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser, or other
expert selected or approved by the Trustee in the exercise of reasonable care.
SECTION 1304. CERTIFICATES OF THE COMPANY.
In addition to all certificates and documents required to be furnished by the
Company under Section 1303 and the Pledge Agreement, the Company shall furnish
to the Trustee, prior to the proposed release of Collateral pursuant to this
Indenture and the Pledge Agreement, (i) all documents required by TIA ' 314(d)
and (ii) an Opinion of Counsel to the effect that such accompanying documents
constitute all documents required by TIA ' 314(d).
SECTION 1305. SUITS TO PROTECT THE COLLATERAL.
The Trustee shall have power to institute and to maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts which may be unlawful or in violation of the Pledge Agreement or
this Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security hereunder or be prejudicial to the interests of the
Holders or the Trustee).
SECTION 1306. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE PLEDGE
AGREEMENT.
The Trustee is authorized to receive any funds for the benefit of the Holders
distributed under the Pledge Agreement, and to make further distributions of
such funds to the Holders according to the provisions of this Indenture.
SECTION 1307. ADDITIONAL PLEDGES.
The Company will not transfer or otherwise dispose of, to any Subsidiary, any
Pledged Stock or any property or assets (other than transfers or dispositions in
the ordinary course of business) of any Subsidiary, any Capital Stock of which
is Pledged Stock, unless such transferee Subsidiary is a Restricted Subsidiary
and the Company pledges all of the issued and outstanding Capital Stock of such
transferee Subsidiary owned by the Company to the Trustee pursuant to the Pledge
Agreement.
This Indenture may be signed in any number of counterparts each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
ASCENT ENTERTAINMENT GROUP, INC.
By /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: EVP, COO and CFO
THE BANK OF NEW YORK,
Trustee
By /s/ Van X. Xxxxx
--------------------------------------
Name: Van X. Xxxxx
Title: Assistant Vice President
