EXHIBIT 4.2
________________________________________________________________________________
FOX KIDS WORLDWIDE, INC.
and
The Bank of New York
as Trustee
___________________
INDENTURE
Dated as of October 28, 1997
___________________
$618,670,000 10 1/4% Senior Discount Notes due 2007, Series A
$618,670,000 10 1/4% Senior Discount Notes due 2007, Series B
________________________________________________________________________________
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions............................................ 1
Accreted Value................................................. 2
Acquired Indebtedness.......................................... 3
Act............................................................ 3
Affiliate...................................................... 4
Asset Acquisition.............................................. 4
Asset Sale..................................................... 4
Asset Sale Offer............................................... 5
Asset Sale Offer Price......................................... 5
Asset Sale Purchase Date....................................... 5
Asset Sale Purchase Price...................................... 5
Attributable Value............................................. 5
Authenticating Agent........................................... 5
Average Life to Stated Maturity................................ 5
Bank Facility.................................................. 6
Board of Directors............................................. 6
Board Resolution............................................... 6
Business Day................................................... 6
Capital Stock.................................................. 6
Capitalized Lease Obligation................................... 7
Cash Equivalents............................................... 7
Cash Interest Election......................................... 7
Cash Interest Election Date.................................... 7
Cedel.......................................................... 7
Change of Control.............................................. 8
Change of Control Offer........................................ 8
Change of Control Purchase Date................................ 8
Change of Control Purchase Price............................... 8
Code........................................................... 8
Commission..................................................... 9
Common Stock................................................... 9
Company........................................................ 9
Company Request................................................ 9
Consolidated Cash Flow......................................... 9
Consolidated Income Tax Expense................................ 9
Consolidated Interest Expense.................................. 10
Consolidated Net Income........................................ 10
Consolidated Net Tangible Assets............................... 11
Consolidated Non-cash Charges.................................. 11
control........................................................ 11
___________________
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Corporate Trust Office......................................... 11
Corporation.................................................... 11
Covenant Defeasance............................................ 11
Currency Agreement............................................. 12
Deeply Subordinated Shareholder Loans.......................... 12
Default........................................................ 12
Default Amount................................................. 12
Defeasance..................................................... 12
Depository..................................................... 12
Disinterested Member of the Board of Directors of the Company.. 12
Entertainment/Programming Business............................. 13
Euroclear...................................................... 13
Event of Default............................................... 13
Excess Proceeds................................................ 13
Exchange Act................................................... 13
Existing Preferred............................................. 13
Existing Subordinated Notes.................................... 13
Existing Subordinated Note Refinancing Debt.................... 13
Fair Market Value.............................................. 13
GAAP........................................................... 14
Global Securities.............................................. 14
Government Securities.......................................... 14
guarantee...................................................... 14
Holder......................................................... 14
Indebtedness................................................... 14
Indenture...................................................... 16
Independent Financial Advisor.................................. 16
Initial Purchasers............................................. 16
Initial Securities............................................. 16
Interest Payment Date.......................................... 16
Interest Rate Protection Agreement............................. 16
Interest Rate Protection Obligations........................... 16
Investment..................................................... 16
Issue Date..................................................... 17
Lien........................................................... 17
Marketable Securities.......................................... 17
Maturity Date.................................................. 17
Xxxxxxx Xxxxx.................................................. 17
Xxxxx'x........................................................ 17
Xxxxxxx Family................................................. 17
Net Cash Proceeds.............................................. 17
News Corp...................................................... 18
Non-U.S. Person................................................ 18
Notice of Default.............................................. 18
NPAL........................................................... 18
Offer.......................................................... 18
Offer to Purchase.............................................. 18
Offering Memorandum............................................ 21
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Officers' Certificate.......................................... 21
144A Global Security........................................... 21
Opinion of Counsel............................................. 21
Other Senior Debt Pro Rata Share............................... 21
Outstanding.................................................... 22
Paying Agent................................................... 23
Permitted Holder............................................... 23
Permitted Indebtedness......................................... 23
Permitted Investments.......................................... 26
Permitted Liens................................................ 27
Person......................................................... 30
Preferred Stock................................................ 30
principal amount at maturity................................... 30
Private Exchange Securities.................................... 30
Private Placement Legend....................................... 30
Public Equity Offering......................................... 31
Purchase Amount................................................ 31
Purchase Date.................................................. 31
Qualified Equity Interest...................................... 31
Qualified Institutional Buyer.................................. 31
Record Expiration Date......................................... 31
Redeemable Capital Stock....................................... 31
Redemption Date................................................ 31
Redemption Price............................................... 31
Registrable Securities......................................... 31
Registration Rights Agreement.................................. 31
Regular Record Date............................................ 32
Regulation S................................................... 32
Regulation S Global Security................................... 32
Replacement Assets............................................. 32
Required Filing Dates.......................................... 32
Responsible Officer............................................ 32
Restricted Payments............................................ 32
Restricted Period.............................................. 32
Restricted Security............................................ 32
Restricted Subsidiary.......................................... 33
Restricted Subsidiary Indebtedness............................. 33
Revocation..................................................... 33
Rule 144A...................................................... 33
Sale-Leaseback Transaction..................................... 33
S&P............................................................ 33
Securities..................................................... 33
Securities Act................................................. 33
Security Register.............................................. 33
Senior Notes................................................... 33
Series A Preferred Stock....................................... 33
Significant Subsidiary......................................... 34
Special Purpose Vehicle........................................ 34
Special Record Date............................................ 34
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Stated Maturity................................................ 34
Strategic Equity Investor...................................... 34
Subordinated Indebtedness...................................... 34
Subsidiary..................................................... 34
Trustee........................................................ 35
Trust Indenture Act............................................ 35
Unrestricted Securities........................................ 35
Unrestricted Subsidiary........................................ 35
U.S. Government Obligation..................................... 35
Vice President................................................. 35
Voting Stock................................................... 35
SECTION 1.2. Compliance Certificates and Opinions................... 36
SECTION 1.3. Form of Documents Delivered to Trustee................. 36
SECTION 1.4. Acts of Holders; Record Dates.......................... 37
SECTION 1.5. Notices to Trustee and Company......................... 40
SECTION 1.6. Notice to Holders; Waiver.............................. 41
SECTION 1.7. Conflict with Trust Indenture Act...................... 41
SECTION 1.8. Effect of Headings and Table of Contents............... 41
SECTION 1.9. Successors and Assigns................................. 42
SECTION 1.10. Separability Clause................................... 42
SECTION 1.11. Benefits of Indenture................................. 42
SECTION 1.12. Governing Law......................................... 42
SECTION 1.13. Legal Holidays........................................ 42
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally........................................ 43
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms....................................... 43
SECTION 3.2. Denominations......................................... 44
SECTION 3.3. Execution, Authentication, Delivery and Dating........ 45
SECTION 3.4. Temporary Securities.................................. 46
SECTION 3.5. Registration, Registration of Transfer and Exchange... 47
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities...... 48
SECTION 3.7. Payment of Interest; Rights Preserved................. 49
SECTION 3.8. Persons Deemed Owners................................. 50
SECTION 3.9. Cancellation.......................................... 51
SECTION 3.10. Computation of Interest.............................. 51
SECTION 3.11. CUSIP and CINS Numbers............................... 51
SECTION 3.12. Deposits of Monies................................... 52
SECTION 3.13. Book-Entry Provisions for Global Securities.......... 52
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SECTION 3.14. Special Transfer Provisions.......................... 53
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture................ 57
SECTION 4.2. Application of Trust Money............................. 58
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default...................................... 59
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..... 61
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................ 62
SECTION 5.4. Trustee May File Proofs of Claim....................... 63
SECTION 5.5. Trustee May Enforce Claims Without Possession of
Securities............................................ 64
SECTION 5.6. Application of Money Collected......................... 64
SECTION 5.7. Limitation on Suits.................................... 65
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................. 66
SECTION 5.9. Restoration of Rights and Remedies..................... 66
SECTION 5.10. Rights and Remedies Cumulative........................ 66
SECTION 5.11. Delay or Omission Not Waiver.......................... 67
SECTION 5.12. Control by Holders.................................... 67
SECTION 5.13. Waiver of Past Defaults............................... 67
SECTION 5.14. Undertaking for Costs................................. 68
SECTION 5.15. Waiver of Stay or Extension Laws...................... 68
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.................... 69
SECTION 6.2. Notice of Defaults..................................... 70
SECTION 6.3. Certain Rights of Trustee.............................. 70
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities. 72
SECTION 6.5. May Hold Securities.................................... 73
SECTION 6.6. Money Held in Trust.................................... 73
SECTION 6.7. Compensation and Reimbursement......................... 73
SECTION 6.8. Conflicting Interests.................................. 74
SECTION 6.9. Corporate Trustee Required; Eligibility................ 74
SECTION 6.10. Resignation and Removal; Appointment of Successor..... 75
SECTION 6.11. Acceptance of Appointment by Successor................ 77
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business............................................. 77
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SECTION 6.13. Preferential Collection of Claims Against Company..................................................... 78
SECTION 6.14. Appointment of Authenticating Agent................................................................... 78
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders............................................. 80
SECTION 7.2. Preservation of Information; Communications to Holders................................................ 80
SECTION 7.3. Reports by Trustee.................................................................................... 81
SECTION 7.4. Reports by Company.................................................................................... 81
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc. Only on Certain Terms................................................... 81
SECTION 8.2. Successor Substituted................................................................................. 83
ARTICLE IX
AMENDMENTS; WAIVERS; SUPPLEMENTAL INDENTURES
SECTION 9.1. Amendments, Waivers and Supplemental Indentures Without Consent of Holders............................ 83
SECTION 9.2. Modifications, Amendments and Supplemental Indentures with Consent of Holders......................... 84
SECTION 9.3. Execution of Supplemental Indentures.................................................................. 85
SECTION 9.4. Effect of Supplemental Indentures..................................................................... 86
SECTION 9.5. Conformity with Trust Indenture Act................................................................... 86
SECTION 9.6. Reference in Securities to Supplemental Indentures.................................................... 86
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest............................................................ 86
SECTION 10.2. Maintenance of Office or Agency....................................................................... 86
SECTION 10.3. Money for Security Payments to be Held in Trust....................................................... 87
SECTION 10.4. Existence............................................................................................. 88
SECTION 10.5. Maintenance of Properties............................................................................. 89
SECTION 10.6. Payment of Taxes and Other Claims..................................................................... 89
SECTION 10.7. Maintenance of Insurance.............................................................................. 89
SECTION 10.8. Limitation on Indebtedness............................................................................ 90
SECTION 10.9. Limitation on Restricted Payments..................................................................... 90
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SECTION 10.10. Limitation on Preferred Stock of Restricted Subsidiaries.............................................. 95
SECTION 10.11. Limitation on Transactions with Affiliates............................................................ 95
SECTION 10.12. Limitations on Liens.................................................................................. 96
SECTION 10.13. Change of Control..................................................................................... 97
SECTION 10.14. Disposition of Proceeds of Asset Sales................................................................ 98
SECTION 10.15. Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.............. 101
SECTION 10.16. Limitations on Sale-Leaseback Transactions............................................................ 103
SECTION 10.17. Limitations on Designation of Unrestricted Subsidiaries............................................... 103
SECTION 10.18. Provision of Financial Information.................................................................... 105
SECTION 10.19. Statement by Officers as to Default; Compliance Certificates.......................................... 106
SECTION 10.20. Waiver of Certain Covenants........................................................................... 106
SECTION 10.21. Calculation of Original Issue Discount................................................................ 107
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Right of Redemption................................................................................... 107
SECTION 11.2. Applicability of Article.............................................................................. 107
SECTION 11.3. Election to Redeem; Notice to Trustee................................................................. 108
SECTION 11.4. Selection by Trustee of Securities to Be Redeemed..................................................... 108
SECTION 11.5. Notice of Redemption.................................................................................. 108
SECTION 11.6. Deposit of Redemption Price........................................................................... 109
SECTION 11.7. Securities Payable on Redemption Date................................................................. 110
SECTION 11.8. Securities Redeemed in Part........................................................................... 110
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1. Company's Option to Effect Defeasance or Covenant Defeasance.......................................... 111
SECTION 12.2. Defeasance and Discharge.............................................................................. 111
SECTION 12.3. Covenant Defeasance................................................................................... 111
SECTION 12.4. Conditions to Defeasance or Covenant Defeasance....................................................... 112
SECTION 12.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions......... 115
SECTION 12.6. Reinstatement......................................................................................... 115
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Exhibit A-1 Form of Series A Security
Exhibit A-2 Form of Series B Security
Exhibit B Form of Legend for Book-entry Securities
Exhibit C Form of Certificate
Exhibit D Form of Subordination Agreement
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INDENTURE, dated as of October 28, 1997, between Fox Kids Worldwide,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 00000
Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and The Bank of New York, a
New York banking corporation, having its principal corporate trust office
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx Xxx Xxxx 00000, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 10 1/4%
Senior Discount Notes due 2007, Series A, and 10 1/4% Senior Discount Notes due
2007, Series B (the "Securities"), of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the Company
the valid obligations of the Company, and to make this Indenture a valid
agreement of the Company, in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (whether or not such is
indicated herein);
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture;
(5) 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; and
(6) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each case
as amended from time to time.
Certain terms, used principally in Article VI, are defined in that
Article.
Whenever this Indenture requires that a particular ratio or amount be
calculated with respect to a specified period after giving effect to certain
transactions or events on a pro forma basis, such calculation shall be made as
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if the transactions or events occurred on the first day of such period, unless
otherwise specified.
"Accreted Value" means (a) as of any date prior to the Cash Interest
Election Date, if any (the "Specified Date"), with respect to each $1,000
principal face amount at maturity of Securities
(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:
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Semi-Annual Accreted
Accrual Date Value
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Issue Date................................. $ 606.14
November 1, 1997........................... $ 606.65
May 1, 1998................................ $ 637.74
November 1, 1998........................... $ 670.43
May 1, 1999................................ $ 704.79
November 1, 1999........................... $ 740.91
May 1, 2000................................ $ 778.88
November 1, 2000........................... $ 818.80
May 1, 2001................................ $ 860.76
November 1, 2001........................... $ 904.87
May 1, 2002................................ $ 951.25
November 1, 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 Semi-Annual Accrual Date
immediately following the Specified Date less the Accreted Value for the
Semi-Annual Accrual Date immediately preceding the Specified 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, using a 360-day year of twelve 30-day months, and the denominator of
which is 180; and
(iii) if the Specified Date is on or after November 1, 2002,
$1,000.00; and
(b) on and after the Cash Interest Election Date, with respect to
each $1,000 principal amount at maturity of Securities, the Accreted Value
determined in accordance with the foregoing as of such Cash Interest Election
Date (without any further accretion).
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Asset Acquisition from such Person or (b) existing at the
time such Person becomes a Subsidiary of any other Person and not incurred in
connection with, or in contemplation of, such Asset Acquisition or such Person
becoming a Subsidiary.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
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"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, (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock, (iii) any officer or director of (A) any such specified Person, (B) any
Subsidiary of such specified Person or (C) any Person described in clauses (i)
or (ii) above or (iv) the spouse of any natural Person described in clauses (i),
(ii) or (iii) above or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such spouse.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person which
constitute all or substantially all of the assets of such Person, any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition by the Company or any Restricted Subsidiary of the Company to
any Person other than the Company or a Restricted Subsidiary of the Company, in
one or a series of related transactions for an aggregate consideration of more
than $1,000,000, of (a) any Capital Stock of any Subsidiary of the Company; (b)
all or substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary of the Company; or (c) any
other properties or assets of the Company or any Restricted Subsidiary of the
Company other than in the ordinary course of business (any disposition of
obsolete or worn-out assets shall be deemed to be in the ordinary course of
business). For purposes of Section 10.14, the following shall not be deemed an
Asset Sale: (i) any sale or other disposition by the Company or a Restricted
Subsidiary of the Company of the assets held for disposition or discontinuance
of International Family Entertainment, Inc. ("IFE") identified in the Offering
Memorandum for Fair Market Value or (ii) an Investment of cash not prohibited by
this Indenture. For the purposes of this definition, the term "Asset Sale"
shall not include any sale, issuance, conveyance, transfer, lease or other
disposition of properties
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or assets that is governed by the provisions described under Article VIII.
"Asset Sale Offer" has the meaning specified in Section 10.14.
"Asset Sale Offer Price" has the meaning specified in Section 10.14.
"Asset Sale Purchase Date" has the meaning specified in Section 10.14.
"Asset Sale Purchase Price" has the meaning specified in Section
10.14.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capitalized Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during the
remaining term thereof (whether or not such lease is terminable at the option of
the lessee prior to the end of such term), including any period for which such
lease has been, or may, at the option of the lessor, be extended, discounted
from the last date of such term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capitalized Lease
Obligation with like term in accordance with GAAP. The net amount of rent
required to be paid under any lease for any such period shall be the aggregate
amount of rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of insurance, taxes, assessments,
utility, operating and labor costs and similar charges. "Attributable Value"
means, as to a Capitalized Lease Obligation under which any Person is at the
time liable and at any date as of which the amount thereof is to be determined,
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with GAAP.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 hereof to act on behalf of the Trustee to authenticate
Securities.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
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limitation, any sinking fund requirements) of such Indebtedness and (b) the
amount of each such principal payment by (ii) the sum of all such principal
payments.
"Bank Facility" means the Amended and Restated Credit Agreement dated
September 4, 1997 among the Company and certain of its Subsidiaries, the lenders
named therein, and Citicorp USA, Inc., as Administrative Agent, and Citicorp
Securities, Inc., as Arranger, including any initial or successive deferrals,
renewals, waivers, extensions, replacements, refinancings (in whole or in part)
or refundings thereof, or any amendments, modifications, restatements or
supplements thereto and including any related notes, guarantees, security
agreements, pledge agreements, mortgages and other collateral documents and
other instruments and agreements executed in connection therewith.
"Board of Directors" means the board of directors of a company or its
equivalent, including managers of a limited liability company (or members of a
member managed limited liability company), general partners of a partnership or
trustees of a business trust, or any duly authorized committee thereof.
"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 Borough of
Manhattan, The City of New York are authorized or obligated by law or executive
order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock or equity participations, and any rights (other
than debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock and, including, without
limitation, with respect to partnerships, limited liability companies or
business trusts, ownership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such partnerships,
limited liability companies or business trusts.
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"Capitalized Lease Obligation" means any obligation under a lease of
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 365 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 365 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000, whose debt is rated
at least A-1 by S&P or at least P-1 by Xxxxx'x or at least an equivalent rating
category of another nationally recognized rating agency; (iii) commercial paper
with a maturity of 365 days or less issued by a corporation that is not an
Affiliate of the Company organized under the laws of any state of the United
States or the District of Columbia and rated at least A-1 by S&P or at least P-1
by Xxxxx'x or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within 365 days from the date of
acquisition; and (v) money market instruments which are principally invested in
Cash Equivalents referred to in the preceding clauses (i) through (iv).
"Cash Interest Election" means the election of the Company on any
Interest Payment Date to commence the accrual of cash interest from and after
the Cash Interest Election Date.
"Cash Interest Election Date" means the Interest Payment Date as of
which the Company makes a Cash Interest Election.
"Cedel" means Cedel Bank, Societe anonyme.
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"Change of Control" means the occurrence of any of the following
events: (a)(i) the Permitted Holders cease to own at least 50% of the total
Voting Stock of the Company or (ii) The News Corporation Limited, the Xxxxxxx
Family, or any of their respective Affiliates cease to own at least 30% of the
total Voting Stock of the Company; (b) the Company consolidates with, or merges
with or into, another Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where (i) the outstanding Voting Stock of the
Company is converted into or exchanged for Voting Stock (other than Redeemable
Capital Stock) of the surviving or transferee corporation and immediately after
such transaction, (ii) the Permitted Holders own at least 50% of the total
Voting Stock of the surviving or transferee corporation and (iii) The News
Corporation Limited, the Xxxxxxx Family or any of their respective Affiliates
own at least 30% of the total Voting Stock of the surviving or transferee
corporation; (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 66-2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute at least
50% 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 any order,
judgment or decree shall be entered against the Company decreeing the
dissolution or splitup of the Company and such order shall remain undischarged
or unstayed for a period in excess of 60 days.
"Change of Control Offer" has the meaning specified in Section 10.13.
"Change of Control Purchase Date" has the meaning specified in Section
10.13.
"Change of Control Purchase Price" has the meaning specified in
Section 10.13.
"Code" means the Internal Revenue Code, as amended from time to time,
and the rules and regulations thereunder.
-9-
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument 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 or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such Person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, 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 instrument 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 of the Board, its Chief
Executive Officer, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated Cash Flow" means, with respect to any Person for any
period, (i) the sum of, without duplication, the amounts for such period, taken
as a single accounting period, of (a) Consolidated Net Income, (b) Consolidated
Non-cash Charges, (c) Consolidated Interest Expense, (d) Consolidated Income Tax
Expense (other than income tax expense (either positive or negative)
attributable to extraordinary and nonrecurring gains or losses) and (e) an
amount equal to any extraordinary and nonrecurring losses (to the extent such
losses were deducted in computing Consolidated Net Income), less (ii) non-cash
items increasing Consolidated Net Income; provided, however, that if, during
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such period, such Person or any of its Restricted Subsidiaries shall have made
any Asset Sales or Asset Acquisitions, Consolidated Cash Flow for such Person
and its Restricted Subsidiaries for such period shall be adjusted to give pro
---
forma effect to the Consolidated Cash Flow directly attributable to the assets
-----
which are the subject of such Asset Sales or Asset Acquisitions during such
period.
"Consolidated Income Tax Expense" means, with respect to any Person
for any period, the provision for federal, state,
-10-
local and foreign income taxes of such Person and its Restricted Subsidiaries
for such period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, excluding accretion
recorded based upon liabilities arising from purchase accounting adjustments
from the acquisition of IFE, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance financing or
similar facilities and (e) all capitalized and accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period and (iii) the aggregate amount of dividends and other
distributions paid or accrued during such period in respect of Redeemable
Capital Stock (other than payments made in respect of the redemption of such
Redeemable Capital Stock (other than accrued and unpaid dividends thereon)) of
such Person and its Restricted Subsidiaries on a consolidated basis, as
determined on a consolidated basis in accordance with GAAP. In no event shall
Consolidated Interest Expense include interest expense associated with Deeply
Subordinated Shareholder Loans.
"Consolidated Net Income" means, with respect to any Person for any
period, the consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses (net of fees and expenses
relating to the transaction giving rise thereto), (ii) the portion of net income
of such Person and its Restricted Subsidiaries derived from or in respect of
Investments in Persons other than Restricted Subsidiaries except to the extent
that cash dividends or distributions have not actually been received by such
Person or one of its Restricted Subsidiaries, (iii) net income (or loss) of any
Person combined with such Person or one of its Restricted Subsidiaries on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (iv) gains or losses in respect of any Asset Sales by such Person
or one of its Restricted Subsidiaries (net of fees and expenses relating to the
transaction giving
-11-
rise thereto), on an after-tax basis, (v) the net income of any Restricted
Subsidiary of such Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is not at the
time permitted, directly or indirectly, by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Restricted Subsidiary or its
stockholders and (vi) any gain or loss realized as a result of the cumulative
effect of a change in accounting principles.
"Consolidated Net Tangible Assets" of any person means, as of any
date, (a) all amounts that would be shown as assets on a consolidated balance
sheet of such Person and its Restricted Subsidiaries prepared in accordance with
GAAP, less (b) the amount thereof constituting goodwill and other intangible
assets as calculated in accordance with GAAP.
"Consolidated Non-cash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization (excluding amortization of
programming costs) and other non-cash expenses of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an extraordinary item or loss
or any such charge which requires an accrual of or a reserve for cash charges
for any future period).
"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 ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which address as of the date of this Indenture is located at 000 Xxxxxxx Xxxxxx,
Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 12.3.
-12-
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Restricted Subsidiaries against fluctuations in currency
values.
"Deeply Subordinated Shareholder Loans" means any unsecured
Indebtedness of the Company for money borrowed from and held by either (x) a
Permitted Holder or (y) another person whose obligations have been guaranteed by
a Permitted Holder, provided that, except to the extent expressly permitted by
--------
the covenant in Section 10.9, such Indebtedness of the Company (i) has been
expressly subordinated in right of payment as to all payments of interest and
principal to the Securities, (ii) provides for no payments of interest (other
than payments in-kind) or principal prior to the earlier of (a) the end of the
sixth month after final maturity of the Securities and (b) the payment in full
cash of all Securities (or due provision therefor which results in the discharge
of all obligations under this Indenture); provided, further, that the terms of
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any such Indebtedness shall be evidenced by a note in the form annexed hereto as
Exhibit E and the Company shall have delivered the specified Opinions of Counsel
as to the validity and enforceability of the subordination terms thereof.
"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 the earlier of
November 1, 2002 and the Cash Interest Election Date, the Accreted Value of all
outstanding Securities as of such date and (ii) as of any date on or after the
earlier of November 1 2002 and the Cash Interest Election Date, the principal
amount at maturity of all Outstanding Securities, plus accrued and unpaid
interest, if any, thereon.
"Defeasance" has the meaning specified in Section 12.2.
"Depository" means The Depository Trust Company or its successor.
"Disinterested Member of the Board of Directors of the Company" means,
with respect to any transaction or series of transactions, a member of the Board
of Directors of the Company other than a member who has any material direct or
indirect financial
-13-
interest in or with respect to such transaction or series of transactions or who
is an officer, director or an employee of any Person who has any direct or
indirect financial interest in or with respect to such transaction or series of
transactions (other than the Company or a Restricted Subsidiary of the Company).
"Entertainment/Programming Business" means a business engaged
primarily in the ownership, operation, acquisition, development, production,
distribution or syndication of general entertainment or children's programming
including, without limitation, any business engaged in by the Company and its
Restricted Subsidiaries on the Issue Date.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 5.1.
"Excess Proceeds" has the meaning specified in Section 10.14.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Preferred" means the Series A Preferred Stock outstanding on
the Issue Date.
"Existing Subordinated Notes" means (i) the Subordinated Note of the
Company issued to News America Holdings Incorporated in the principal amount
(excluding accreted interest) of approximately $345.5 million outstanding on the
Issue Date (before giving effect to the use of proceeds from the Offering and
the Flextech Transaction (as defined in the Offering Memorandum) and (ii) the
Subordinated Notes of the Company to Fox Broadcasting Company issued in the
principal amount (excluding accreted interest) of approximately $108.6 million
and which is to be repaid in May 2008 (before giving effect to the use of
proceeds from the Offering). Notwithstanding anything herein to the contrary,
the Company may amend the term of the Existing Subordinated Notes to make them
Deeply Subordinated Shareholder Loans.
"Existing Subordinated Note Refinancing Debt" means Indebtedness the
proceeds of which is to purchase, redeem, acquire or retire all of the Existing
Subordinated Securities.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a
-14-
willing buyer, neither of which is under pressure or compulsion to complete the
transaction; provided, however, that, except with respect to any Asset Sale
-------- -------
which involves an asset or assets constituting less than $25,000,000, the
determination of the Fair Market Value of any asset or assets shall be approved
by the Board of Directors of the Company, acting in good faith and shall be
evidenced by resolutions of the Board of Directors of the Company delivered to
the Trustee.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States of America, which are applicable at the date of
this Indenture.
"Global Securities" means one or more Regulation S Global Securities
and 144A Global Securities.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of all or any
part of such obligation, including, without limiting the foregoing, the payment
of amounts available to be drawn down under letters of credit of another Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities and liabilities for entertainment programming,
participations or residuals incurred in the ordinary course of business, but
including, without limitation, all ob-
-15-
ligations, contingent or otherwise, of such Person in connection with any
letters of credit, banker's acceptance or other similar credit transaction, (b)
all obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade accounts payable arising in the ordinary
course of business, (d) all Capitalized Lease Obligations of such Person, (e)
all Indebtedness referred to in the preceding clauses of other Persons and all
dividends of other Persons, the payment of which is secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, (f) all
guarantees of Indebtedness referred to in this definition by such Person, (g)
all Redeemable Capital Stock of such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued dividends,
(h) all obligations under or in respect of Interest Rate Protection Obligations
of such Person, and (i) any amendment, supplement, modification, deferral,
renewal, extension, refinancing or refunding of any liability of the types
referred to in clauses (a) through (h) above. For purposes hereof, the "maximum
fixed repurchase price" of any Redeemable Capital Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Redeemable Capital Stock, such fair market value shall be approved
in good faith by the Board of Directors of the issuer of such Redeemable Capital
Stock. In the case of Indebtedness of other Persons, the payment of which is
secured by a Lien on property owned by a Person as referred to in clause (e)
above, the amount of the Indebtedness of such Person attributable to such Lien
at any date shall be the lesser of the Fair Market Value at such date of any
asset subject to such Lien and the amount of the Indebtedness secured. In no
event shall "Indebtedness" include (i) Deeply Subordinated Shareholder Loans so
long as they are issued to and held by a Permitted Holder or (ii) the Existing
Preferred to the extent the terms thereof are as in effect on the Issue Date.
-16-
"Indenture" means this instrument as originally executed or 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Independent Financial Advisor" means a nationally recognized
accounting, appraisal or investment banking firm (i) which does not, and whose
directors, officers and employees or Affiliates do not have, a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchasers" means Xxxxxxx Xxxxx, Citicorp Securities, Inc.,
Bear Xxxxxxx & Co. Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
and Xxxxxx Xxxxxxx & Co. Incorporated.
"Initial Securities" means the 10 1/4% Senior Discount Notes due 2007,
Series A, of the Company.
"Interest Payment Date" means May 1 and November 1 of each year,
provided that no cash interest shall be paid on any Interest Payment Date,
--------
except as provided in this Indenture and in the Securities.
"Interest Rate Protection Agreement" means, with respect to any
Person, any arrangement with any other Person whereby, directly or indirectly,
such Person is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any Interest Rate Protection Agreements.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contri-
-17-
bution to (by means of any transfer of cash or other property to others or any
payment for property or services for the account or use of others), or any
purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any other
Person.
"Issue Date" means the original date of issuance of the Securities.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A Person shall be deemed to own subject to a Lien any property which 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.
"Marketable Securities" means Government Securities maturing no later
than 30 days after the date of acquisition.
"Maturity Date" means November 1, 2007.
"Xxxxxxx Xxxxx" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Xxxxxxx Family" means one or more of (a) K. Xxxxxx Xxxxxxx, his wife,
parents, children or more remote issue, or brothers or sisters or children or
more remote issue of a brother or sister, (b) any person directly or indirectly
controlled by one or more of the persons referred to in clause (a) or (b) of
this definition or can be removed or replaced by one or more of the persons
referred to in clause (a) or (b) of this definition.
"Net Cash Proceeds" means, with respect to an Asset 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 cash or Cash
Equivalents (except to the extent that such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary of the Company) net of
(i) brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers) related
to such Asset
-18-
Sale, (ii) provisions for all taxes payable as a result of such Asset Sale and
relocation costs, (iii) amounts required to be paid to any Person (other than
the Company or any Restricted Subsidiary of the Company) owning a beneficial
interest in or a Lien upon the assets subject to the Asset Sale, (iv) payments
made to retire Indebtedness where payment of such Indebtedness is secured by the
assets or property the subject of such Asset Sale, and (v) appropriate amounts
to be provided by the Company or any Restricted Subsidiary of the Company, as
the case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary of the Company, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an officers' certificate delivered to the Trustee.
"News Corp." means The News Corporation Limited.
"Non-U.S. Person" has the meaning assigned to such term in Regulation
S.
"Notice of Default" means a written notice of the kind specified in
Section 5.2.
"NPAL" means News Publishing Australia Limited.
"Offer" has the meaning set forth in "Offer to Purchase" below.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
behalf of the Company by first-class mail, postage prepaid, to each Holder of
Securities at his address appearing in the register for the Securities on the
date of the Offer offering to purchase up to the principal amount or Accreted
Value of Securities specified in such Offer at the purchase price specified in
such Offer (as determined pursuant to this Indenture). Unless otherwise
provided in Section 10.13 or 10.14 or otherwise required by applicable law, the
Offer shall specify an expiration date (the "Expiration Date") of the Offer to
Purchase, which shall be not less than 20 Business Days nor more than 60 days
after the date of such Offer, and a settlement date (the "Purchase Date") for
purchase of Securities to occur no later than five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the
-19-
Trustee) prior to the mailing of the Offer of the Company's obligation to make
an Offer to Purchase, and the Offer shall be mailed by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
The Offer shall contain all the information required by applicable law to be
included therein. The Offer shall also contain information concerning the
business of the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed decision with respect to
the Offer to Purchase (which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
document required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
--- -----
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein). The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000 of
Accreted Value (if the Purchase Date is prior to the earlier of November 1,
2002 or the Cash Interest Election Date) or $1,000 aggregate principal
amount at maturity (if the Purchase Date is on or after such earlier date)
of Securities accepted for payment (as specified pursuant to this
Indenture) (the "Purchase Price");
-20-
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal face
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(9) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender
such Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
--- ----
-21-
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 principal amount at maturity or integral multiples
thereof shall be purchased); and
(12) that in the case of a Holder whose Security is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with the
provisions pertaining to the type of Offer to which it relates. References
above to principal amount shall mean and refer to principal amount at maturity
unless the context otherwise requires.
"Offering Memorandum" means the Offering Memorandum dated October 22,
1997 pursuant to which the Securities were offered.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, 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. One of the officers
signing an Officers' Certificate given pursuant to Section 10.20 shall be the
principal executive, financial or accounting officer of the Company.
"144A Global Security" means a permanent global security in registered
form representing the aggregate principal amount at maturity of Securities sold
in reliance on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Other Senior Debt Pro Rata Share" means under this Indenture the
amount of the applicable Excess Proceeds obtained by multiplying the amount of
such Excess Proceeds by a fraction, (i) the numerator of which is the aggregate
accreted value and/or principal amount, as the case may be, of all Indebtedness
(other than (x) the Securities and (y) Subordinated
-22-
Indebtedness) of the Company outstanding at the time of the applicable Asset
Sale with respect to which the Company is required to use Excess Proceeds to
repay or make an offer to purchase or repay and (ii) the denominator of which is
the sum of (a) the aggregate principal amount of all Securities that are
outstanding at the time of the offer to purchase or repay with respect to the
applicable Asset Sale and (b) the aggregate principal amount or the aggregate
accreted value, as the case may be, of all other Indebtedness (other than
Subordinated Indebtedness) of the Company outstanding at the time of the
applicable Asset Sale Offer with respect to which the Company is required to use
the applicable Excess Proceeds to offer to repay or make an offer to purchase or
repay.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities 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 Securities; provided that, if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee, has been made;
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities as to which Defeasance has been effected pursuant to
Section 12.2;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount at maturity of the Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, Securities owned by the Company
-23-
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Holder" means any member of the Xxxxxxx Family, The News
Corporation Limited, Xxxx Xxxxx and their respective Affiliates.
"Permitted Indebtedness" means, without duplication:
(a) Indebtedness of the Company evidenced by the Securities;
(b) Indebtedness of the Company and its Restricted Subsidiaries under
the Bank Facility in an aggregate principal amount at any one time
outstanding not to exceed $725 million, less any amounts permanently repaid
in accordance with Section 10.14;
(c) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Issue Date;
(d) Indebtedness to third parties for the production of television
programming by one or more special purpose partnerships, corporations,
joint ventures or similar structures (in which any interest of the Company
is held through a Special Purpose Vehicle), the production decisions in
respect of which are controlled by the Company or a Restricted Subsidiary;
(e) Indebtedness consisting of the liabilities and obligations,
contingent or otherwise, incurred by the Company or its Restricted
Subsidiaries in the ordinary course
-24-
of business (other than for borrowed money) to acquire, produce, license or
distribute television programming;
(f) Indebtedness of the Company or any Restricted Subsidiary of the
Company incurred in respect of performance bonds, bankers' acceptances and
letters of credit in the ordinary course of business, including
Indebtedness evidenced by letters of credit issued in the ordinary course
of business to support the insurance or self-insurance obligations of the
Company or any of its Restricted Subsidiaries (including to secure workers'
compensation and other similar insurance coverages), in the aggregate
amount not to exceed $10 million at any time; but excluding letters of
credit issued to secure money borrowed;
(g) (i) Interest Rate Protection Obligations of the Company covering
Indebtedness of the Company and (ii) Interest Rate Protection Obligations
of any Restricted Subsidiary of the Company covering Indebtedness of such
Restricted Subsidiary; provided that in the case of either clause (i) or
--------
(ii) the notional principal amount of any such Interest Rate Protection
Obligations that exceeds the principal amount of the Indebtedness to which
such Interest Rate Protection Obligations relate is otherwise permitted to
be incurred under this Indenture;
(h) Indebtedness of the Company or any Restricted Subsidiaries under
Currency Agreements; provided that (x) such Currency Agreements relate to
--------
Indebtedness or the purchase price of goods purchased or sold by the
Company or any Restricted Subsidiary in the ordinary course of its business
and (y) such Currency Agreements do not increase the Indebtedness or other
obligations of the Company or a Restricted Subsidiary outstanding other
than as a result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;
(i) Indebtedness of a Restricted Subsidiary owed to and held by the
Company or another Restricted Subsidiary, except that (i) any transfer of
such Indebtedness by the Company or a Restricted Subsidiary (other than to
the Company or another Restricted Subsidiary) and (ii) the sale, transfer
or other disposition by the Company or any Restricted Subsidiary of the
Company of Capital Stock of a Restricted Subsidiary (other than to the
Company or a Restricted Subsidiary) which is owed Indebtedness of another
-25-
Restricted Subsidiary shall, in each case, be an incurrence of Indebtedness
by such Restricted Subsidiary subject to the other provisions of this
Indenture;
(j) Indebtedness of the Company owed to and held by a Restricted
Subsidiary which is unsecured and subordinated in right of payment to the
payment and performance of the obligations of the Company under this
Indenture and the Securities, except that (i) any transfer of such
Indebtedness by the Company or a Restricted Subsidiary (other than to
another Restricted Subsidiary) and (ii) the sale, transfer or other
disposition by the Company or any Restricted Subsidiary of the Company of
Capital Stock of a Restricted Subsidiary (other than to the Company or a
Restricted Subsidiary) which is owed Indebtedness of the Company shall, in
each case, be an incurrence of Indebtedness by the Company, subject to the
other provisions of this Indenture;
(k) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
-------- -------
Indebtedness is extinguished within five Business Days of incurrence;
(l) Indebtedness of the Company, in addition to that described in
clauses (a) through (k) of this definition, in an aggregate principal
amount outstanding at any time not to exceed $150 million;
(m) Indebtedness represented by obligations to purchase Capital Stock
of the Company pursuant to agreements, as in effect on the Issue Date, with
employees of the Company and its Restricted Subsidiaries upon the
termination of their employment in an aggregate principal amount not to
exceed $30 million during the term of this Indenture; and
(n) (i) Indebtedness of the Company the proceeds of which are used
solely to refinance (whether by amendment, renewal, extension or refunding)
Indebtedness of the Company or any of its Restricted Subsidiaries and (ii)
Indebtedness of any Restricted Subsidiary of the Company the proceeds of
which are used solely to refinance (whether by amendment, renewal,
extension or refunding) Indebtedness of any Restricted Subsidiary (in each
case other than the
-26-
Indebtedness to be refinanced, redeemed or retired as described under "Use
of Proceeds" in the Offering Memorandum, and Indebtedness under clause (b)
or (g) through (m) of this definition); provided, however, that (x) the
-------- -------
principal amount of Indebtedness incurred pursuant to this clause (n) (or,
if such Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof, the original issue price of such Indebtedness) shall not
exceed the sum of the principal amount of Indebtedness so refinanced, plus
the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of such Indebtedness or the amount of any
premium reasonably determined by the Company as necessary to accomplish
such refinancing by means of a tender offer or privately negotiated
purchase, plus the amount of expenses in connection therewith, and (y) in
the case of Indebtedness incurred pursuant to this clause (n) to refinance
Subordinated Indebtedness, such Indebtedness (A) has no scheduled principal
payment prior to the 91st day after the Maturity Date, (B) has an Average
Life to Stated Maturity greater than the remaining Average Life to Stated
Maturity of the Securities and (C) is subordinated to the Securities in the
same manner and to the same extent that the Subordinated Indebtedness being
refinanced is subordinated to the Securities. Nothing in this clause (n)
shall restrict the ability of the Company or any Restricted Subsidiary to
refinance any Indebtedness pursuant to the terms of any other clause or
provision of this Indenture, such as any refinancing contemplated by the
definition "Bank Facility."
"Permitted Investments" means any of the following: (i) Investments in
the Company or in a Restricted Subsidiary; (ii) Investments in another Person,
if as a result of such Investment (A) such other Person becomes a Restricted
Subsidiary or (B) 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; (iii) Investments representing Capital Stock or
obligations issued to the Company or any of its Restricted Subsidiaries in
settlement of claims against any other Person by reason of a composition or
readjustment of debt or a reorganization of any debtor of the Company or such
Restricted Subsidiary; (iv) Investments in Interest Rate Protection Agreements
on commercially reasonable terms entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business in connection with
the operations of the business of the Company or its Restricted
-27-
Subsidiaries to hedge against fluctuations in interest rates on its outstanding
Indebtedness; (v) Investments in the Securities; (vi) Investments in Cash
Equivalents; (vii) Investments acquired by the Company or any Restricted
Subsidiary in connection with an Asset Sale permitted under Section 10.14 to the
extent such Investments are non-cash proceeds as permitted under such covenant;
(viii) advances to employees or officers of the Company in the ordinary course
of business; (ix) any Investment to the extent that the consideration therefor
is Capital Stock (other than Redeemable Capital Stock) of the Company; and (x)
Investments in any Person engaged in the Entertainment/Programming Business not
to exceed $65,000,000 at any time outstanding.
"Permitted Liens" means the following types of Liens:
(a) any Lien existing as of the date of this Indenture;
(b) Liens securing Indebtedness and other amounts owing under the
Bank Facility;
(c) any Lien securing Acquired Indebtedness created prior to (and not
created in connection with, or in contemplation of) the incurrence of such
Indebtedness by the Company or any Restricted Subsidiary, if such Lien does
not attach to any property or assets of the Company or any Restricted
Subsidiary other than the property or assets subject to the Lien prior to
such incurrence;
(d) Liens in favor of the Company or a Restricted Subsidiary;
(e) Liens on and pledges of the Capital Stock of any Unrestricted
Subsidiary securing any Indebtedness of such Unrestricted Subsidiary;
(f) Liens for taxes, assessments or governmental charges or claims
either (i) not delinquent for 90 days or more or (ii) contested in good
faith by appropriate proceedings and as to which the Company or its
Restricted Subsidiaries shall have set aside on its books such reserves as
may be required pursuant to GAAP;
(g) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent for
-28-
90 days of more or being contested in good faith and as to which reserves
or other appropriate provisions, if any, as shall be required by GAAP shall
have been made in respect thereof;
(h) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(i) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(j) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(k) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such lessor or
sublessor may be subject;
(l) purchase money Liens to finance property or assets of the Company
or any Restricted Subsidiary of the Company acquired in the ordinary course
of business; provided, however, that (i) the related purchase money
-------- -------
Indebtedness shall not be secured by any property or assets of the Company
other than the property and assets so acquired and (ii) the Lien securing
such Indebtedness shall be created within 180 days of such acquisition;
(m) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(n) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Re-
-29-
stricted Subsidiaries, including rights of offset and set-off;
(o) Liens securing Interest Rate Protection Obligations which
Interest Rate Protection Obligations relate to Indebtedness that is secured
by Liens otherwise permitted under this Indenture;
(p) Liens on assets of Unrestricted Subsidiaries;
(q) Liens securing Capitalized Lease Obligations or incurred in
connection with Sale-Leaseback Transactions;
(r) Liens securing other Indebtedness in an aggregate amount not to
exceed 10% of the Company's Consolidated Net Tangible Assets as of the last
day of the Company's most recently completed fiscal period for which
financial information is available;
(s) Liens in favor of the Screen Actors Guild, the Writers Guild of
America, the Directors Guild of America or any other unions, guilds or
collective bargaining units under the collective bargaining agreements,
which Liens are incurred in the ordinary course of business solely to
secure the payment of residuals and other collective bargaining obligations
required to be paid by the Company or any of its Restricted Subsidiaries
under any such collective bargaining agreement;
(t) Liens arising in connection with completion guarantees entered
into in the ordinary course of business and consistent with then current
industry practices, securing obligations (other than Indebtedness for
borrowed money) of the Company or any of its Restricted Subsidiaries not
yet due and payable;
(u) Liens in favor of suppliers and/or producers of any programming
that are incurred in the ordinary course of business solely to secure the
purchase price of such programming and such directly related rights or the
rendering of services necessary for the production of such programming;
provided, however, that no such Lien shall extend to or cover any property
-------- -------
or assets other than the programming and the rights directly related
thereto being so acquired or produced; and provided, further, that any
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payment obligations secured by such Liens shall be their terms by payable
solely from the revenues that are derived directly from the exhibition,
syndication, exploitation,
-30-
distribution or disposition of such item of programming and/or such
directly related rights;
(v) Liens upon any item of programming and rights directly related
thereto in favor of distributors of such item of programming that are
incurred in each case in the ordinary course of business solely to secure
delivery of such item of programming and the licensing of the rights in
such item of programming directly related thereto; provided, however, that
-------- -------
no such Lien shall extend to or cover any property or assets other than the
item of programming being so delivered and the rights directly related
thereto; and provided, further, that any payment obligations secured by
-------- -------
such Liens shall by their terms by payable solely from the revenues that
are derived directly from the exhibition, syndication, exploitation,
distribution or disposition of such item of Product and/or such directly
related rights; and
(w) Liens on assets or Capital Stock of a Special Purpose Vehicle.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock," as applied to any Person, means Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"principal amount at maturity" means, with respect to the Securities,
$1,000 per $1,000 face amount of Securities; provided, however, that if the
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Company shall have made a Cash Interest Election, the principal amount at
maturity with respect to each Security shall be the Accreted Value of such
Security as of the Cash Interest Election Date.
"Private Exchange Securities" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" shall mean the legend initially set forth
on the Securities in the form set forth on Exhibit B-1.
-31-
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Redeemable Capital Stock) for the Company pursuant to
a registration statement filed with the Commission in accordance with the
Securities Act, which public equity offering results in net cash proceeds to the
Company of not less than $100 million.
"Purchase Amount," when used with respect to an Offer to Purchase,
shall mean the aggregate principal amount of the Outstanding Securities offered
to be purchased by the Company pursuant to the Offer to Purchase.
"Purchase Date" shall have the meaning set forth in the definition of
"Offer to Purchase."
"Qualified Equity Interest" in a Person means any interest in Capital
Stock of such Person, other than Redeemable Capital Stock.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A under the Securities Act.
"Record Expiration Date" has the meaning specified in Section 1.4.
"Redeemable Capital 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, is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the Maturity Date or is redeemable at the option of the Holder thereof at any
time prior to the Maturity Date, or is convertible into or exchangeable for debt
securities at any time prior to the Maturity Date.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Securities" has the meaning set forth in the Registration
Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement with respect to the Securities dated as
-32-
of October 28, 1997 by and among the Company and the Initial Purchasers, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the April 15 or October 15 (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.
"Regulation S Global Security" means a permanent global Security in
registered form representing the aggregate principal amount at maturity of
Securities sold in reliance on Regulation S under the Securities Act.
"Replacement Assets" has the meaning specified in Section 10.14.
"Required Filing Dates" has the meaning specified in Section 10.19.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Office, including, any vice president,
any assistant vice president, any assistant secretary, any assistant treasurer,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Payments" has the meaning specified in Section 10.9.
"Restricted Period" has the meaning set forth in Section 3.14.
"Restricted Security" means a Security that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
-------- -------
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.
-33-
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Restricted Subsidiary Indebtedness" means Indebtedness of any
Restricted Subsidiary (i) which is not subordinated to any other Indebtedness of
such Restricted Subsidiary and (ii) in respect of which the Company is not also
obligated (by means of a guarantee or otherwise) other than, in the case of this
clause (ii), Indebtedness under the Bank Facility.
"Revocation" has the meaning set forth in Section 10.18.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale-Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person after the acquisition
thereof or the completion of construction or commencement of operation thereof
to such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last payment of
rent or any other amount due under such arrangement prior to the first date on
which such arrangement may be terminated by the lessee without payment of a
penalty.
"S&P" means Standard & Poor's Ratings Group, and its successors.
"Securities" means securities designated in the first paragraph of the
RECITALS OF THE COMPANY.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Notes" means the 9 1/4% Senior Notes due 2007 issued by the
Company, pursuant to an indenture dated as of the date hereof.
"Series A Preferred Stock" means the Series A Preferred Stock of the
Company.
-34-
"Significant Subsidiary" of any Person means a Restricted Subsidiary
of such Person which would be a significant subsidiary of such Person as
determined in accordance with the definition in Section 210.1-02(w) of
Regulation S-X promulgated by the Commission and as in effect on the date of
this Indenture.
"Special Purpose Vehicle" means a Person which is, or was,
established: (i) with separate legal identity and limited liability; (ii) as an
Affiliate of the Company; and (iii) for the sole purpose of a single
transaction, or series of related transactions, and which has no assets and
liabilities other than those directly acquired or incurred in connection with
such transaction(s).
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
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.
"Strategic Equity Investor" means a corporation or entity with an
equity market capitalization, a net asset value or annual revenues of at least
$1.0 billion that primarily owns and operates businesses in the entertainment,
cable television, programming or similar or related industries.
"Subordinated Indebtedness" means, with respect to the Company,
Indebtedness of the Company which is expressly subordinated in right of payment
to the Securities.
"Subsidiary" means, with respect to any Person, (i) a corporation at
least 50% of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a partnership, limited liability
company, business trust or a joint venture, in which such Person, one or more
Subsidiaries thereof or such Person and one or more Subsidiaries thereof,
directly or indi-
-35-
rectly, at the date of determination thereof, has at least a 50% ownership
interest entitled to vote in the election of directors, managers or trustees
thereof (or other Person performing similar functions). For purposes of this
definition, any directors' qualifying shares or investments by foreign nationals
mandated by applicable law shall be disregarded in determining the ownership of
a Subsidiary.
"Trustee" means the Person named as the "Trustee, in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Securities" means one or more Securities that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A, including, without limitation, the Exchange Securities.
---------
"Unrestricted Subsidiary" means each Subsidiary of the Company
designated as such pursuant to and in compliance with the covenant described
under Section 10.18.
"U.S. Government Obligation" has the meaning specified in Section
12.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"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 50% 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 shall have, or might have, voting power by reason of
the happening of any contingency).
-36-
SECTION 1.2. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3. 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.
-37-
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 1.4. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted 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 agent 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 (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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.
-38-
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 his 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 which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities, provided that the Company may not set a record date for, and the
--------
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
--------
hereunder unless taken on or prior to the applicable Record Expiration Date by
Holders of the requisite principal amount at maturity of Outstanding Securities
on such record date; and provided, further, that for the purpose of determining
-------- -------
whether Holders of the requisite principal amount at maturity of such Securities
have taken such action, no Security shall be deemed to have been Outstanding on
such record date unless it is also Outstanding on the date such action is to
become effective. Nothing in this paragraph shall prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no
effect), nor shall anything in this paragraph be construed to render ineffective
any action
-39-
taken pursuant to or in accordance with any other provision of this Indenture by
Holders of the requisite principal amount at maturity of Outstanding Securities
on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Record Expiration
Date to be given to the Trustee in writing and to each Holder of Securities in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
--------
effective hereunder unless taken on or prior to the applicable Record Expiration
Date by Holders of the requisite principal amount at maturity of Outstanding
Securities on such record date; and provided, further, that for the purpose of
-------- -------
determining whether Holders of the requisite principal amount at maturity of
such Securities have taken such action, no Security shall be deemed to have been
Outstanding on such record date unless it is also Outstanding on the date such
action is to become effective. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action (whereupon the
record date previously set shall automatically and without any action by any
Person be cancelled and of no effect), nor shall anything in this paragraph be
construed to render ineffective any action taken pursuant to or in accordance
with any other provision of this Indenture by Holders of the requisite principal
amount at maturity of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the matter(s)
to be submitted for potential action by Holders and the applicable Record
Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Record
Expiration Date" and from time to
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time may change the Record Expiration Date to any earlier or later day, provided
--------
that no such change shall be effective unless notice of the proposed new Record
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities in the manner set forth in Section 1.6, on or before the
existing Record Expiration Date. If a Record Expiration Date is not designated
with respect to any record date set pursuant to this Section, the party hereto
that set such record date shall be deemed to have initially designated the 180th
day after such record date as the Record Expiration Date with respect thereto,
subject to its right to change the Record Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Record Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount at maturity of such Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount at maturity.
SECTION 1.5. Notices 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,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
and mailed, first-class postage prepaid, to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Trustee Administration;
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, with a copy to The News Corporation
Limited at 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxxx, Esq., or at any other address previously
furnished in writing to the Trustee by the Company.
-41-
SECTION 1.6. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
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. 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter 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 to be excluded, as the case
may be.
SECTION 1.8. 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.
-42-
SECTION 1.9. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by each of the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
SECTION 1.13. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect (including with respect to the accrual of interest) as if made on the
Interest Payment Date, Redemption Date or Purchase Date, or at the Stated
Maturity.
-43-
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth or referenced in Exhibit B-1 and Exhibit
B-2 annexed hereto, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
---------------
The aggregate principal amount at maturity of Securities which may be
authenticated and delivered under this Indenture is limited to $618,670,000
principal face amount at maturity of Initial Securities and up to $618,670,000
principal face amount at maturity of Securities exchanged therefor in accordance
with the Registration Rights Agreement, except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.8 or in connection
with an Offer pursuant to Section 10.13 or 10.14.
The Securities shall be known and designated as the "10 1/4% Senior
Discount Notes due 2007" of the Company. Their
-44-
Stated Maturity shall be November 1, 2007. Cash interest on the Securities will
not accrue prior to November 1, 2002, except as provided below. Cash interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from November 1, 2002; provided, however,
-------- -------
that at any time prior to November 1, 2002, the Company may elect on any
Interest Payment Date to commence the accrual of cash interest from and after
the Cash Interest Election Date, in which case the principal amount at maturity
of each Security will on such Cash Interest Election Date be reduced to the
Accreted Value of such Security as of such Cash Interest Election Date, and cash
interest (accruing at a rate of 10 1/4% per annum from the Cash Interest
Election Date) shall be payable with respect to such Security on each Interest
Payment Date thereafter. The Company will pay interest semiannually in arrears
on each Interest Payment Date, commencing on the earlier of November 1, 2003 and
the May 1 or November 1 immediately after the Cash Interest Election Date (if
any). Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
-------- -------
that, at the option of the Company, payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Company may be required to make a Change of Control Offer as
provided in Section 10.13, or an Asset Sale Offer as provided in Section 10.14.
The Securities shall be redeemable as provided in Article II and
Article XI.
The Securities shall be subject to Defeasance and/or Covenant
Defeasance as provided in Article XII.
SECTION 3.2. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal face amount at maturity
and any integral multiple thereof.
-45-
SECTION 3.3. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Initial Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 hereto. The Exchange
-----------
Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-2 hereto.
-----------
The terms and provisions contained in the Securities annexed hereto as
Exhibits A-1 and A-2 shall constitute, and are hereby expressly made, a part of
------------ ---
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A and Securities
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Securities, substantially in the form set forth in
Exhibit A-1, deposited with the Trustee, as custodian for the Depository, duly
-----------
executed by the Company and authenticated by the Trustee as hereinafter provided
and shall bear the legend set forth in Exhibit B. The aggregate principal amount
---------
at maturity of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
All Securities shall remain in the form of a Global Security, except
as provided herein.
The Securities shall be executed on behalf of each of the Company by
its Chairman of the Board, its Chief Executive Officer, its President or one of
its Vice Presidents, attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and the
seal may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication,
-46-
together with a Company Order for the authentication and delivery of such
Securities; and the Trustee in accordance with such Company Order shall
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
The Trustee shall have the right to decline to authenticate and make
available for delivery any Securities under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and made available for delivery hereunder.
SECTION 3.4. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall exe-
-47-
cute and the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount at maturity of definitive Securities
of authorized denominations and of a like tenor. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.5. 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 10.2 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as the Company may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Subject to Sections 3.13 and 3.14 of this Indenture, upon surrender
for registration of transfer of any Security at an office or agency of the
Company designated pursuant to Section 10.2 for such purpose, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one more or more new
Securities of any authorized denominations and of a like aggregate principal
amount at maturity and tenor.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount at maturity and tenor, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by
-48-
a written instrument of transfer in form satisfactory to the Company and the
Security 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 of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.8 or in accordance with any Change
of Control Offer pursuant to Section 10.13 or any Asset Sale Offer pursuant to
Section 10.14 and in any such case not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 11.4 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount at
maturity and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of each of them harmless, then, in the absence of actual
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute, and upon their request the
Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount at maturity and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the
-49-
Company in its discretion may, instead of, issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Rights Preserved.
-------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more predecessor securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at their election in each case,
as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
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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 to each
Holder in the manner specified in Section 1.6, 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
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
-51-
any) and (subject to Section 3.7) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.9. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Change of Control Offer pursuant
to Section 10.13 or any Asset Sale Offer pursuant to Section 10.14 shall, if
surrendered to any Person other than the Trustee, be made available for delivery
to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order; provided,
--------
however, that the Trustee shall not be required to destroy canceled Securities.
-------
SECTION 3.10. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.11. CUSIP and CINS Numbers.
----------------------
The Company in issuing the Securities may use "CUSIP" and "CINS"
numbers (if then generally in use), and, if so, the Trustee shall use the CUSIP
or CINS numbers in notices of redemption or repurchase as a convenience to
Holders; provided that any such notice may state that no representation is made
--------
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption or repurchase and that reliance may be
placed only on the other identification numbers printed on the Securities, and
any such redemption or repurchase shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the CUSIP or CINS numbers.
-52-
SECTION 3.12. Deposits of Monies.
------------------
(a) The Company may from time to time appoint one or more Paying
Agents under this Indenture and the Securities.
(b) Unless the Company shall be acting as Paying Agent as provided in
Section 10.3 hereof, prior to 1:00 p.m. New York City time on each Interest
Payment Date on and after the first Interest Payment Date following the Cash
Interest Election Date or, if no Cash Interest Election shall occur, on and
after May 1, 2003, and each Redemption Date, Stated Maturity, and Purchase Date,
the Company shall deposit with the Paying Agent in immediately available funds
money sufficient to make cash payments, if any, due on such Interest Payment
Date, Redemption Date, Stated Maturity and Purchase Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such Interest Payment Date, Redemption Date, Stated Maturity, and Purchase
Date, as the case may be.
SECTION 3.13. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit C hereto.
---------
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under any
Global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Securities 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 Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfer of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may not be
transferred or
-53-
exchanged for physical securities, except that physical securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in Global Securities if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Security, or that
it will cease to be a "Clearing Agency" under the Exchange Act, and in either
case a successor Depository is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue physical
securities.
(c) the Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 3.14. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-U.S. Persons. The following additional
-----------------------------
provisions shall apply with respect to the registration of any proposed transfer
of an Initial Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement Legend,
if (x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company, nor any Affiliate of the
-------- -------
Company, has held any beneficial interest in such Security, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise be lawfully made under the Securities
Act without registering such Initial Security thereunder or (y) the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto;
---------
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a 144A Global Security, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the Registrar
shall register the transfer and reflect on its books and records the date
and (A) a decrease in the principal amount at maturity of the 000X Xxxxxx
Xx-
-00-
curity from which such interests are to be transferred in an amount equal
to the principal amount at maturity of the Securities to be transferred and
(B) an increase in the principal amount at maturity of the Regulation S
Global Security in an amount equal to the principal amount at maturity of
the Global Security to be transferred; and
(iii) subject to Section 3.14(b), until the 41st day after the
Issue Date (the "Restricted Period"), an owner of a beneficial interest in
the Regulation S Global Security may not transfer such interest to a
transferee that is a U.S. Person or for the account or benefit of a U.S.
Person within the meaning of Rule 902(o) of the Securities Act. Subject to
Section 3.14(b), during the Restricted Period, all beneficial interests in
the Regulation S Global Security shall be transferred only through Cedel or
Euroclear, either directly if the transferor and transferee are
participants in such systems, or indirectly through organizations that are
participants therein.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of an Initial Security to a
QIB (excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement Legend,
if (x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of the
-------- -------
Company has held any beneficial interest in such Security, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise be lawfully made under the Securities
Act without registering such Initial Security thereunder or (y) such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a 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 in
-55-
formation 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; and
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Regulation S Global Security, upon receipt by the
Registrar of written instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall register the transfer
and reflect on its books and records the date and (A) a decrease in the
principal amount at maturity of the Regulation S Global Security from which
interests are to be transferred in an amount equal to the principal amount
at maturity of the Securities to be transferred and (B) an increase in the
principal amount at maturity of the 144A Global Security in an amount equal
to the principal amount at maturity of the Global Security to be
transferred.
(c) Transfers to Non-QIB Institutional Accredited Investors. The
-------------------------------------------------------
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to any Institutional Accredited
Investor that is not a QIB (excluding Non-U.S. persons):
(iii) The Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement Legend,
if (x) the requested transfer is subsequent to a date that is two years
after the later of the Issue Date and the last date on that the Company or
any of its Affiliates was the owner of such Security or (y) the proposed
transferee has delivered to the Security Registrar a certificate
substantially in the form of Exhibit D hereto.
(iv) If the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security seeking to transfer a Physical
Security to another person, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y) instructions given in
accordance with the Depository'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 such Global Security in an amount equal
to the principal amount of the beneficial interest in such Global Security
to be transferred, and the Company shall execute,
-56-
and the Trustee shall authenticate and deliver, one or more Physical
Certificates of like tenor and amount.
(d) Private Placement Legend. Upon the registration of transfer,
------------------------
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless (i) the
circumstances contemplated by paragraph (a)(i)(x) of this Section 3.14 exists,
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act.
(e) Other Transfers. If a Holder proposes to transfer a Security
---------------
constituting a Restricted Security pursuant to any exemption from the
registration requirements of the Securities Act other than as provided for by
Section 3.14(a), (b), (c) and (d), the Registrar shall only register such
transfer or exchange if such transferor delivers an Opinion of Counsel
satisfactory to the Company and the Registrar that such transfer is in
compliance with the Securities Act and the terms of this Indenture.
(f) General. By its acceptance of any Security bearing the
-------
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.13 or this Section 3.14.
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 prior written notice to the Registrar.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or repaid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation (other than Securities which have been destroyed,
lost or stolen and which have been replaced or repaid as provided in
Section 3.6),
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) 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 (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to pay and
discharge
-58-
the entire Indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any)
and interest on the Securities to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be, together with
irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as
the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article IV, the obligations of the Company to the Trustee under Section
6.7, the obligations of the Company to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
-59-
ARTICLE V
REMEDIES
SECTION 5.1. 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 the principal of or premium, if any,
when due and payable, on any of the Securities (at Stated Maturity, upon
optional redemption, required purchase or otherwise); or
(2) default in the payment of an installment of interest on any of
the Securities, when due and payable, for 30 days; or
(3) (a) default in the performance, or breach, of any covenant or
agreement of the Company under the Indenture (other than a default in the
performance or breach of a covenant or agreement which is specifically
dealt with in clauses (1) or (2) or subclauses (b), (c) or (d) of this
clause (3)) and such default or breach shall continue for a period of 45
days after written notice has been given, by certified mail, (x) to the
Company by the Trustee or (y) to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount at maturity of the
Outstanding Securities; (b) there shall be a default in the performance or
breach of the provisions of Article VIII; (c) the Company shall have failed
to make or consummate a Change of Control Offer in accordance with the
provisions of the Indenture described under Section 10.13; or (d) the
Company shall have failed to make or consummate an Asset Sale Offer in
accordance with the provisions of this Indenture described under Section
10.14; or
(4) default or defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which
the Company or any Significant Subsidiary of the Company then has
outstanding Indebtedness in excess of $20,000,000, individually or in
-60-
the aggregate, and either (a) such Indebtedness is already due and payable
in full or (b) such default or defaults have resulted in the acceleration
of the maturity of such Indebtedness; or
(5) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $20,000,000 (net of any amounts covered by
insurance therefor of which the insurance provider has been notified and
not challenged coverage) either individually or in the aggregate, shall be
entered against the Company or any Significant Subsidiary of the Company or
any of their respective properties and shall not be discharged and there
shall have been a period of 60 days after the date on which any period for
appeal has expired and during which a stay of enforcement of such judgment,
order or decree, shall not be in effect; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises (A) for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal, state or foreign bankruptcy,
insolvency, reorganization or similar law or (B) adjudging the Company or
any Significant Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under the Federal Bankruptcy Code
or any other similar federal, state or foreign law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any Significant Subsidiary or of any
substantial part of any of their properties, or ordering the winding up or
liquidation of any of their affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
(7) the institution by the Company or any Significant Subsidiary of a
voluntary case or proceeding under the Federal Bankruptcy Code or any other
similar federal, state or foreign law or any other case or proceedings to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in any involuntary
case or proceeding under the Federal Bankruptcy Code or any other similar
federal, state or foreign law or to the institu-
-61-
tion of bankruptcy or insolvency proceedings against the Company or any
Significant Subsidiary, or the filing by the Company or any Significant
Subsidiary of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other similar federal,
state or foreign law, or the consent by it to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or other similar
official) of any 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 the taking of
corporate action by the Company or any Significant Subsidiary in
furtherance of any such action.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than those covered by clause (6) or (7)
of Section 5.1 with respect to the Company) shall occur and be continuing, the
Trustee, by notice to the Company, or the Holders of at least 25% in aggregate
principal amount at maturity of the Securities then Outstanding, by notice to
the Trustee and the Company, may declare the Default Amount to be due and
payable immediately, upon which declaration, the Default Amount shall be
immediately due and payable, provided, however, that so long as the Bank
-------- -------
Facility shall be in full force and effect, any acceleration arising from any
Event of Default (other than an Event of Default with respect to the Company
described in clause (6) or (7) of the preceding paragraph) shall not become
effective until the earlier of (x) five Business Days following delivery of
written notice of such acceleration of the Securities to the agent under the
Bank Facility and (y) the acceleration (ipso facto or otherwise) of any
---- -----
Indebtedness under the Bank Facility. If an Event of Default specified in
clause (6) or (7) of Section 5.1 with respect to the Company occurs and is
continuing, then the Default Amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder of Securities.
After a declaration of acceleration under the 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 at maturity of
the Outstanding
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Securities, by written notice to the Company and the Trustee, may rescind such
declaration if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) 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,
(B) all overdue interest on all Securities,
(C) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities,
and
(D) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the rate borne
by the Securities which has become due otherwise than by such
declaration of acceleration;
(2) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction; and
(3) all Events of Default, other than the nonpayment of principal of,
premium, if any, and interest on the Securities that has become due solely
by such declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to a Change of Control
Offer or an
-63-
Asset Sale Offer made by the Company, at the purchase date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
In addition to the rights and powers set forth in Section 317(a) of
the Trust Indenture Act, the Trustee shall be entitled to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities allowed in any judicial proceeding
relative to the Company or other obligor upon the Securities, its creditors, or
its property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Holders 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 to the Trustee any
amount due it for compensation and expenses, including counsel fees and expenses
incurred by it up to the date of such distribution.
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 5.4. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take
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any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized 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 other 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 to 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 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
-------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities.
------------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
distributions and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
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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
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 5.7. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount at maturity
of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 15 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 15-day period by the Holders of a majority in
principal amount at maturity of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or
-66-
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
---------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or in the case of a Change of Control Offer or an Asset Sale Offer made by
the Company and required to be accepted as to such Security, on the relevant
purchase 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 5.9. 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 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, 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.
-67-
SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount at maturity of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount at
maturity of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to a Change of Control Offer or an Asset Sale Offer
which has been made by the Company), or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
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
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such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, including reasonable attorneys' fees and expenses, in
the manner and to the extent provided in the Trust Indenture Act; provided, that
--------
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, in any suit instituted by the Trustee, in any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount at maturity of the Outstanding Securities, or
in any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity expressed in such Security (or, in the case of redemption, on or
after the Redemption Date or, in the case of a Change of Control Offer or an
Asset Sale Offer, made by the Company and required to be accepted as to such
Security, on the Change of Control Purchase Date or the Asset Sale Offer date,
as the case may be).
SECTION 5.15. 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 usury, 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.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by the provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent misconduct, except that
(1) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or 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;
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(2) this subsection (c) shall not be construed to limit the effect of
Subsection (a) of this Section 6.1;
(3) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(4) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount at maturity of the
Outstanding Securities determined as provided in Sections 1.1, 1.4 and
5.12, relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.1.
SECTION 6.2. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
-------- -------
the case of a Default in the payment of the principal of, premium, if any, or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders and provided, further, that in the case of any Default
-------- -------
of the character specified in Section 5.1(4), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
SECTION 6.3. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely as to the truth of the
statements and correctness of the opinions expressed therein and shall be
fully protected in acting
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or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other 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 and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(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 which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled (subject to reasonable confidentiality arrangements as
may be proposed by the Company) to ex-
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amine the books, records and premises of the Company, personally or by
agent or attorney at the sole expense of the Company and, in the absence of
negligence and bad faith, shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(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 or custodians or nominees and the Trustee shall not be
responsible for the supervision of, or 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 to be taken by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(i) in the event that the Trustee is also acting as Authenticating
Agent, Paying Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI shall also
be afforded to such Authenticating Agent, Paying Agent and Security
Registrar; 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 Securities.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
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SECTION 6.5. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 6.6. 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 6.7. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, 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 (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
(3) to indemnify each of the Trustee or any predecessor trustee, its
directors, officers, agents and employees for, and to hold them harmless
against, any and all loss, damage, claim, liability or expense incurred
without negligence or bad faith on its part, including taxes (other than
taxes based upon, measured by or determined by the revenue or income of the
Trustee), arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connec-
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tion with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing to it or any
predecessor trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(6) or Section 5.1(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the 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 any termination of this
Indenture.
SECTION 6.8. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $100,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person 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.
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SECTION 6.10. 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 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
in accordance with the applicable requirements of Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, at the expense of the Company the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount at maturity at Stated Maturity of the Outstanding
Securities, delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee in accordance with the applicable requirements
of Section 6.11 shall not have been delivered to the Trustee within 30 days
after the giving of notice of such removal, at the expense of the Company the
removed Trustee may petition 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 Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, 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,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount at maturity at Stated Maturity of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
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 accordance with the
applicable requirements of Section 6.11, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
(g) The resignation or removal of the Trustee pursuant to this
Section 6.10 shall not affect the obligation of the Company to indemnify the
Trustee pursuant to Section 6.7(3) in connection with the exercise or
performance by the Trustee prior to its resignation or removal of any of its
powers or duties hereunder.
(h) No Trustee under this Indenture shall be liable for any action or
omission of any successor Trustee.
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SECTION 6.11. 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. 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 6.12. 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or partial purchase or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $100,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent 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 an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially
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all of the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing
of any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
The Bank of New York,
As Trustee
By _______________________________
As Authenticating Agent
By:_______________________________
Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
----------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each May 1 and
November 1, commencing May 1, 1998, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such
Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
---------
capacity as Security Registrar.
SECTION 7.2. Preservation of Information; Communications to Holders.
-------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of
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information as to the names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 7.3. Reports by Trustee.
------------------
(a) Within 60 days after May 1 of each year commencing May 1, 1998,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture to the extent required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee in writing when the Securities are
listed on any stock exchange or any delisting thereof.
SECTION 7.4. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with 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 VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc. Only on Certain Terms.
---------------------------------------------------
The Company (x) shall not, in any transaction or series of
transactions, merge or consolidate with or into, or
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sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to, any Person or
Persons, and (y) shall not permit any of its Restricted Subsidiaries to enter
into any such transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless, in each
case (x) or (y), at the time and after giving effect thereto
(1) either:
(A) if the transaction or transactions is a merger or
consolidation, the Company or such Restricted Subsidiary, as the case
may be, shall be the surviving Person of such merger or consolidation,
or
(B) the Person formed by such consolidation or into which the
Company or such Restricted Subsidiary, as the case may be, is merged
or to which the properties and assets of the Company or such
Restricted Subsidiary, as the case may be, substantially as an
entirety, are transferred (any such surviving Person or transferee
Person being the "Surviving Entity") shall be a corporation organized
and existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company, under
the Securities and this Indenture and the Registration Rights
Agreement, and in each case, this Indenture shall remain in full force
and effect;
(2) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including,
--- -----
without limitation, any Indebtedness incurred or anticipated to be incurred
in connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and be
continuing; and
(3) the Company or the Surviving Entity, as the case may be, after
giving effect to such transaction or series of transactions on a pro forma
--- -----
basis (including, without limitation, any Indebtedness incurred or
anticipated to be
-83-
incurred in connection with or in respect of such transaction or series of
transactions), could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under Section 10.8.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the foregoing
provisions of this Section 8.1, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposition and the indenture supplemental hereto in respect thereof
(required under clause (1)(B) of this Section 8.1) comply with the requirements
of this Indenture. Each such Officers' Certificate shall set forth the manner
of determination of the ability to Incur Debt in accordance with clause (3) of
this Section 8.1.
SECTION 8.2. Successor Substituted.
---------------------
Upon any transaction or series of transactions that are of the type
described in clause (x) or (y) of, and are effected in accordance with, Section
8.1, the Surviving Entity shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Securities, this
Indenture and/or the Registration Rights Agreement with the same effect as if
such Surviving Entity had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
AMENDMENTS; WAIVERS; SUPPLEMENTAL INDENTURES
SECTION 9.1. Amendments, Waivers and Supplemental Indentures Without Consent
---------------------------------------------------------------
of Holders.
----------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may amend,
waive or supplement this Indenture, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of
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the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities pursuant to the requirements of Section
10.12 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture,
provided that the Company shall have delivered to the Trustee an Opinion of
--------
Counsel stating that such action pursuant to clauses (1), (2), (3), (4) or (5)
above does not adversely affect the rights of any Holder of Securities.
SECTION 9.2. Modifications, Amendments and Supplemental Indentures with
----------------------------------------------------------
Consent of Holders.
-------------------
With the consent of the Holders of not less than a majority in
principal amount at maturity of the Outstanding Securities, by Act of said
Holders delivered to the Company, and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may modify, amend or supplement this
Indenture for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
-------- -------
no such modification, amendment or supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) reduce the principal amount at maturity of, extend the Stated
Maturity of or alter the Redemption provisions of, the Securities,
(2) change the currency in which any Securities or any premium or the
interest thereon is payable,
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(3) reduce the percentage in principal amount at maturity of
Outstanding Securities that must consent to an amendment, supplement or
waiver or consent to take any action under the Indenture or the Securities,
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities,
(5) waive a default in payment with respect to the Securities,
(6) amend, change or modify the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control or
make and consummate the offer with respect to any Asset Sale or modify any
of the provisions or definitions with respect thereto,
(7) reduce or change the rate or time for payment of interest on the
Securities, or amend or modify the definition of Accreted Value; or
(8) modify or change any provision of this Indenture affecting the
ranking of the Securities in a manner adverse to the Holders of the
Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment or supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto
in accordance with Section 1.4 hereof.
SECTION 9.3. 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 (subject to Section 6.1) 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
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.4. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of
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the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the 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. In the event any such notice or demands are so made or
served on the Trustee, the Trustee will promptly forward copies thereof to the
Company.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; 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 Borough of Manhattan,
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 of any change in
the location of any such other office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and 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, the Company
will, prior to 1:00 p.m. New York City time on each due date of the principal of
(and premium, if any) or interest on any Securities, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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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: (i) comply with the provisions of the Trust Indenture
Act applicable to it as Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
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 such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by such Paying Agent; and, upon
such payment by any Paying Agent (other than the Company) to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
-------- -------
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The 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 10.4. Existence.
---------
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full
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force and effect its existence, rights (charter and statutory) and material
franchises; provided, however, that the Company shall not be required to
-------- -------
preserve any such right or franchise if the Board of Directors in good faith
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.5. Maintenance of Properties.
-------------------------
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Restricted 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 operation or maintenance of any of such material properties if
such discontinuance is desirable in the conduct of its business or the business
of any Restricted Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 10.6. 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, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Restricted
Subsidiaries or upon the income, profits or property of the Company or any of
its Restricted Subsidiaries, and (2) 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 of its Restricted Subsidiaries; provided, however, that the
-------- -------
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 10.7. Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Restricted Subsidiaries to,
keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured
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by corporations similarly situated and owning like properties in accordance with
good business practice. Subject to the terms of any agreement relating to
Indebtedness of the Company, including the Bank Facility, the Company shall, and
shall cause its Restricted Subsidiaries to, use the proceeds from any such
insurance policy to repair, replace or otherwise restore all material properties
to which such proceeds relate, provided, however, that the Company shall not be
-------- -------
required to repair, replace or otherwise restore any such material property if
such inaction is desirable in the conduct of the business of the Company or any
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 10.8. Limitation on Indebtedness.
--------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or in any manner become directly or indirectly liable, contingently or otherwise
(in each case, to "incur"), for the payment of any Indebtedness (including any
Acquired Indebtedness) other than Permitted Indebtedness unless the ratio of (i)
the aggregate consolidated principal amount of Indebtedness of the Company and
its Restricted Subsidiaries outstanding as reflected on the most recent
available quarterly or annual balance sheet, after giving pro forma effect to
--- -----
the incurrence of such Indebtedness and any other Indebtedness incurred since
such balance sheet date and the receipt and application of the proceeds thereof,
to (ii) Consolidated Cash Flow of the Company and its Restricted Subsidiaries
for the four full fiscal quarters next preceding the incurrence of such
Indebtedness for which consolidated financial statements are available,
determined on a pro forma basis as if any such Indebtedness had been incurred
--- -----
and the proceeds thereof had been applied at the beginning of such four fiscal
quarters, would be less than 6.0 to 1.
SECTION 10.9. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Company or any of its
Restricted Subsidiaries or make any payment to the direct or indirect
holders (in their capacities as such) of Capital Stock of the Company or
any of its Restricted Subsidiaries (other than dividends or distributions
payable solely in Capital Stock of the Company (other than Redeemable
Capital Stock) or in options, warrants or other rights to purchase Capital
Stock of
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the Company (other than Redeemable Capital Stock)) (other than the
declaration or payment of dividends or other distributions to the extent
declared or paid to the Company or any Restricted Subsidiary),
(2) purchase, redeem, defease or otherwise acquire or retire for value
any Capital Stock (other than Redeemable Capital Stock) of the Company (or
of any Restricted Subsidiaries of the Company if such Capital Stock is
owned by an Affiliate of the Company) or any options, warrants, or other
rights to purchase any such Capital Stock (other than any such securities
owned by a Restricted Subsidiary),
(3) make any principal payments on, or purchase, defease, repurchase,
redeem or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment, scheduled sinking fund payment or other
Stated Maturity, any Redeemable Capital Stock or Subordinated Indebtedness
of the Company (other than any such Redeemable Capital Stock or
Subordinated Indebtedness owned by the Company or a Restricted Subsidiary),
(4) make any Investment (other than any Permitted Investment) in any
Person
(5) (i) make any principal, interest or other payments on or in
respect of Deeply Subordinated Shareholder Loans or (ii) make any
principal, interest (other than interest payments after November 1, 2002)
or other payments on or in respect of the Existing Subordinated Securities
or any Existing Subordinated Note Refinancing Debt
(such payments or Investments described in the preceding clauses (1), (2),
(3),(4) and (5) are collectively referred to as "Restricted Payments"), unless,
at the time of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, shall be the Fair
Market Value of the asset(s) proposed to be transferred by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment),
(A) no Default or Event of Default shall have occurred and be continuing, (B)
immediately prior to and after giving effect to such Restricted Payment, the
Company would be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) and (C) the
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aggregate amount of all Restricted Payments declared or made from and after the
Issue Date would not exceed the sum of:
(i) the excess of the aggregate Consolidated Cash Flow of the
Company minus the product of 1.5 times the Consolidated Interest Expense of
the Company accrued on a cumulative basis during the period beginning on
the Issue Date and ending on the last day of the fiscal quarter of the
Company immediately preceding the date of such proposed Restricted Payment;
(ii) the aggregate net cash proceeds received by the Company as
capital contributions to the Company after the Issue Date and which
constitute shareholders' equity of the Company in accordance with GAAP;
(iii) the aggregate net cash proceeds received by the Company from
the issuance or sale of Capital Stock (excluding Redeemable Capital Stock)
of the Company to any Person (other than to a Subsidiary of the Company)
after the Issue Date;
(iv) the aggregate net cash proceeds received by the Company from
any Person (other than a Subsidiary of the Company) upon the exercise of
any options, warrants or rights to purchase shares of Capital Stock (other
than Redeemable Capital Stock) of the Company after the Issue Date;
(v) the aggregate net cash proceeds received after the Issue Date
by the Company from any Person (other than a Subsidiary of the Company) for
debt securities that have been converted or exchanged into or for Capital
Stock of the Company (other than Redeemable Capital Stock) (to the extent
such debt securities were originally sold for cash) plus the aggregate
amount of cash received by the Company (other than from a Subsidiary of the
Company) in connection with such conversion or exchange;
(vi) the aggregate net cash proceeds received after the Issue Date
by the Company from the issuance of Deeply Subordinated Shareholder Loans
to a Permitted Holder (other than a Subsidiary of the Company);
(vii) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment after the Issue Date, an amount equal to
the lesser of the return of capital with respect to such Investment and the
initial
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amount of such Investment, in either case, less the cost of the disposition
of such Investment; and
(viii) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issue Date in accordance with Section 10.18 of this
Indenture, the Fair Market Value of the Company's interest in such
Subsidiary calculated in accordance with GAAP, provided that such amount
shall not in any case exceed the Designation Amount with respect to such
Restricted Subsidiary upon its Designation,
minus:
-----
the Designation Amount (measured as of the date of Designation) with
respect to any Subsidiary of the Company which has been designated as an
Unrestricted Subsidiary after the Issue Date in accordance with Section
10.18 of this Indenture.
For purposes of the preceding clause (C)(iv), the value of the
aggregate net proceeds received by the Company upon the issuance of Capital
Stock upon the exercise of options, warrants or rights will be the net cash
proceeds received upon the issuance of such options, warrants or rights plus the
incremental amount received by the Company upon the exercise thereof.
None of the foregoing provisions in this Section 10.9 will prohibit,
so long, in the case of clauses (2) to (5) and (8) below, as there is no Default
or Event of Default continuing, (1) the payment of any dividend or distribution
within 60 days after the date of its declaration, if at the date of declaration
such payment would be permitted by the foregoing paragraph; (2) the redemption,
repurchase or other acquisition or retirement of any shares of any class of
Capital Stock of the Company in exchange for, or out of the net cash proceeds
of, a substantially concurrent issue and sale of other shares of Capital Stock
(other than Redeemable Capital Stock) of the Company to any Person (other than
to a Subsidiary of the Company); provided, however, that such net cash proceeds
-------- -------
are excluded from clause (C) of the second preceding paragraph; (3) any
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale of (A) Capital Stock (other than
Redeemable Capital Stock) of the Com-
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pany to any Person (other than to a Subsidiary of the Company); provided,
--------
however, that any such net cash proceeds are excluded from clause (C) of the
-------
second preceding paragraph; or (B) Indebtedness of the Company so long as such
Indebtedness is Subordinated Indebtedness which (w) has no Stated Maturity
earlier than the 91st day after the Maturity Date, (x) has an Average Life to
Stated Maturity greater than the remaining Average Life to Stated Maturity of
the Securities and (y) is subordinated to the Securities in the same manner and
to the same extent as the Subordinated Indebtedness so purchased, exchanged,
redeemed, acquired or retired and (z) if the proceeds of such Indebtedness is to
purchase, redeem, acquire or retire all of the Existing Subordinated Notes
("Existing Subordinated Note Refinancing Debt"), such Existing Subordinated Note
Refinance Debt provides for no cash payments of interest prior to November 1,
2002 other than cash payments otherwise permitted by this covenant; (4) any
redemption, repurchase or other acquisition or retirement of Deeply Subordinated
Shareholder Loans by exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale of (1) Capital Stock (other than
Redeemable Capital Stock) of the Company to any person (other than a Subsidiary
of the Company) or (2) other Deeply Subordinated Shareholder Loans to any
Permitted Holder; provided, however, that, in either case, such net cash
-------- -------
proceeds are excluded from clause (C) of the preceding paragraph; (5)
Investments constituting Restricted Payments made as a result of the receipt of
non-cash consideration from any Asset Sale made pursuant to and in compliance
with this Indenture; (6) payments to purchase Capital Stock from management or
employees of the Company or any of its Subsidiaries, or their authorized
representatives, upon the happening of an event which provides for payment under
any applicable plan, or upon the death, disability or termination of employment
of such employees, in aggregate amounts under this clause (6) not to exceed
$8,000,000 in any fiscal year of the Company; (7) the payment of pro rata
dividends to holders of Capital Stock of Restricted Subsidiaries; (8) the
payment of dividends on the Existing Preferred in accordance with its terms as
in effect on the Issue Date (or payments in comparable amounts to such dividends
and at comparable times in respect of claims by The News Corporation Limited
("News Corp.") or News Publishing Australia Limited ("NPAL") arising from News
Corp. or NPAL having cured or avoided a default by the Company in respect of the
Existing Preferred or the Company's Wilshire Boulevard lease; provided amounts
--------
contributed to the Company by News Corp. or NPAL for such purpose shall not be
included in the calculation of clause (C) above; (9) the payment of in-kind
interest in respect of Deeply Subordinated Shareholder Loans and in respect of
Existing Subordinated Notes; (10) the repay-
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ment of the Existing Subordinated Notes contemplated under "Use of Proceeds" in
the Offering Memorandum. Any payments made pursuant to clauses (1), (5) and (7)
of this paragraph shall, without duplication, be taken into account in
calculating the amount of Restricted Payments made from and after the Issue
Date.
SECTION 10.10. Limitation on Preferred Stock of Restricted Subsidiaries.
--------------------------------------------------------
The Company shall not permit any Restricted Subsidiary to issue any
Preferred Stock other than Preferred Stock issued to the Company or a Restricted
Subsidiary. The Company shall not sell, transfer or otherwise dispose of
Preferred Stock issued by a Restricted Subsidiary of the Company or permit a
Restricted Subsidiary to sell, transfer or otherwise dispose of Preferred Stock
issued by a Restricted Subsidiary, other than to the Company or a Restricted
Subsidiary. Notwithstanding the foregoing, nothing in such covenant will
prohibit the ownership of Preferred Stock issued by a Person prior to the time
(A) such Person becomes a Restricted Subsidiary of the Company, (B) such Person
merges with or into a Restricted Subsidiary of the Company or (C) a Restricted
Subsidiary of the Company merges with or into such Person; provided, further,
-------- -------
that such Preferred Stock was not issued or incurred by such Person in
anticipation of a transaction contemplated by subclause (A), (B) or (C) above.
SECTION 10.11. Limitation on Transactions with Affiliates.
------------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, transfer,
disposition, purchase, exchange or lease of assets, property or services) with,
or for the benefit of, any of its Affiliates (other than Restricted
Subsidiaries), except (a) on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those which could have been
obtained in a comparable transaction at such time from Persons who are not
Affiliates of the Company, (b) with respect to a transaction or series of
related transactions involving aggregate payments or value equal to or greater
than $25,000,000, the Company shall have delivered an Officers' Certificate to
the Trustee certifying that such transaction or transactions comply with the
preceding clause (a) and that such transaction or transactions have been
approved by a majority of the Disinterested Members
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of the Board of Directors of the Company and (c) with respect to a transaction
or series of related transactions involving aggregate payments or value equal to
or greater than $50,000,000 (other than agreements whereby the Company or a
Restricted Subsidiary of the Company obtains or grants a license or other rights
to syndicated entertainment programs in the ordinary course of business), the
Company shall have obtained a written opinion from an Independent Financial
Advisor stating that the terms of such transaction or series of transactions are
fair, from a financial point of view, to the Company or the Restricted
Subsidiary involved, as the case may be.
Notwithstanding the foregoing, the restrictions set forth in this
covenant shall not apply to (i) transactions with or among the Company and the
Restricted Subsidiaries, (ii) customary directors' fees, indemnification and
similar arrangements, consulting fees, employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of the Company or any
Restricted Subsidiary entered into in the ordinary course of business, (iii) any
dividends made in compliance with Section 10.9 of this Indenture, (iv) Permitted
Investments, (v) loans and advances to officers, directors and employees of the
Company or any Restricted Subsidiary for travel, entertainment, moving and other
relocation expenses, in each case made in the ordinary course of business, (vi)
transactions pursuant to agreements existing on the date of this Indenture or
amendment thereto so long as not disadvantageous to the Holders of Securities,
(vii) Deeply Subordinated Shareholder Loans and loans and advances on the same
terms as the Existing Subordinated Notes or (viii) the incurrence of
intercompany Indebtedness which constitutes Permitted Indebtedness.
SECTION 10.12. Limitations on Liens.
--------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Liens of any kind against or
upon any of its property or assets, or any proceeds therefrom, unless the
Securities are equally and ratably secured (except that Liens securing
Subordinated Indebtedness shall not be permitted in any circumstances), except
for (a) Liens securing the Securities; (b) Liens securing Indebtedness which is
(i) incurred to refinance Indebtedness which has been secured by a Lien
permitted under this Indenture and (ii) incurred in accordance with the
provisions of this Indenture; provided, however, that such Liens do not extend
-------- -------
to or cover any property or assets of the Company or
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any of its Restricted Subsidiaries not securing the Indebtedness so refinanced;
and (c) Permitted Liens.
SECTION 10.13. Change of Control.
-----------------
Upon the occurrence of a Change of Control (the "Change of Control
Date"), the Company shall make an Offer to Purchase (a "Change of Control
Offer") on a business day (the "Change of Control Purchase Date") not more than
60 nor less than 30 days following the occurrence of the Change of Control all
of the then Outstanding Securities tendered at a purchase price in cash (the
"Change of Control Purchase Price") equal to 101% of the Accreted Value on the
Change of Control Purchase Date, unless the Change of Control Purchase Date is
on or after the earlier to occur of November 1, 2002 and the Cash Interest
Election Date, in which case such Change of Control Purchase Price shall be
equal to 101% of the aggregate principal amount at maturity thereof, plus
accrued and unpaid interest thereon, if any, to the Change of Control Purchase
Date. The Company shall be required to purchase all Securities tendered into
the Change of Control Offer and not withdrawn. The Change of Control offer is
required to remain open for at least 20 business days and until the close of
business on the Change of Control Purchase Date.
In order to effect such Change of Control Offer, the Company shall,
not later than the 30th day after the Change of Control, mail to each holder of
Securities notice of the Change of Control Offer, which notice shall govern the
terms of the Change of Control Offer and shall state, among other things, the
procedures that holders of Securities must follow to accept the Change of
Control Offer. Prior to mailing a notice of a Change of Control Offer, but in
any event within 30 days following a Change of Control, the Company shall either
permanently repay all outstanding amounts under the Bank Facility and terminate
all commitments of the lenders thereunder or offer to permanently repay in full
all outstanding amounts under the Bank Facility and permanently repay the
Obligations held by each lender who has accepted such offer or obtain the
requisite consents, if any, under the Bank Facility to permit the repurchase of
the Securities required hereby. The failure to mail notice of the Change of
Control Offer when required will nonetheless constitute a Default hereunder.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds,
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sufficient to pay the purchase price of all Securities or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Securities so
accepted together with an Officers' Certificate setting forth the Securities or
portions thereof tendered to and accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to the Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and make available for delivery to such Holders a new Security of
like tenor equal in principal amount at maturity to any unpurchased portion of
the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Change of Control Offer not later than the
first Business Day following the Change of Control Purchase Date.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.
The Company shall comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder, to the extent such laws or
regulations are applicable, in the event that a Change of Control occurs and the
Company is required to purchase Securities as described above.
SECTION 10.14. Disposition of Proceeds of Asset Sales.
--------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any Asset Sale unless (a) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the shares or assets sold or
otherwise disposed of and (b) at least 75% of such consideration consists of
cash or Cash Equivalents or properties or assets that will be used in the
business of the Company and its Restricted Subsidiaries; provided that the
--------
amount of any liabilities (other than Subordinated Indebtedness or Indebtedness
of a Restricted Subsidiary that would not constitute Restricted Subsidiary
Indebtedness) that are assumed by the transferee of any such assets pursuant to
an agreement that unconditionally releases the Company or such Restricted
Subsidiary, as the case may be, from further liability shall be treated as cash
for purposes of clause (b) above. The Company or the applicable
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Restricted Subsidiary, as the case may be, shall, at the Company's option, (i)
apply the Net Cash Proceeds from any such Asset Sale within 365 days of the
receipt thereof to repay Indebtedness under the Bank Facility and elect to
permanently reduce the commitments thereunder by the amount of Indebtedness so
repaid, (ii) apply the Net Cash Proceeds from any such Asset Sale within 365
days of the receipt thereof to repay an amount of other Indebtedness (other than
Subordinated Indebtedness) of the Company in an amount not exceeding the Other
Senior Debt Pro Rata Share and, in such case, elect to permanently reduce the
amount of the commitments thereunder by the amount of the Indebtedness so
repaid, (iii) apply the Net Cash Proceeds from any such Asset Sale by the
Company or a Restricted Subsidiary to repay any Restricted Subsidiary
Indebtedness and elect to permanently reduce the commitments thereunder by the
amount of the Indebtedness so repaid and/or (iv) apply the Net Cash Proceeds
from any Asset Sale by the Company or a Restricted Subsidiary, (x) to repay
Indebtedness incurred not more than 90 days before such Asset Sale to purchase,
or (y) to the purchase price for any acquisition consummated not more than 90
days before such Asset Sale of, or (z) within 365 days after such Asset Sale to
an investment in, properties and assets that replace the properties and assets
that were the subject of such Asset Sale or in properties and assets that will
be used in the business of the Company and its Restricted Subsidiaries existing
on the Issue Date or in businesses reasonably related thereto ("Replacement
Assets"). Pending the final application of any such Net Cash Proceeds, the
Company or such Restricted Subsidiary may temporarily reduce Indebtedness under
a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds
in Cash Equivalents. Any Net Cash Proceeds from any Asset Sale that are neither
used to repay, and permanently reduce the commitments under, any Restricted
Subsidiary Indebtedness as set forth in clause (iii) of the second preceding
sentence or invested in Replacement Assets within the 365-day period as set
forth in clause (iii) and (iv) shall constitute "Excess Proceeds." Any Excess
Proceeds not used as set forth in clause (i) or (ii) of the third preceding
sentence shall constitute "Offer Excess Proceeds" subject to disposition as
provided below.
When the aggregate amount of Offer Excess Proceeds equals or exceeds
$15,000,000, the Company shall make an Offer to Purchase (an "Asset Sale
Offer"), from all Holders of the Securities, an aggregate principal amount of
Securities equal to such Offer Excess Proceeds, at a price (the "Asset Sale
Purchase Price") in cash equal to 100% of the Accreted Value on the purchase
date, unless the purchase date is on or after the
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earlier to occur of November 1, 2002 and the Cash Interest Election Date, in
which case such purchase price shall be equal to 100% of the principal amount at
maturity thereof, plus accrued and unpaid interest, if any, to the purchase
date, and from all Holders of the Company's Senior Notes, 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
to the purchase date (and at a price in cash for the Senior Notes as provided in
the Senior Notes). To the extent that the aggregate principal amount of
Securities tendered pursuant to an Asset Sale Offer is less than the Offer
Excess Proceeds, the Company may use such deficiency for any purpose not
prohibited hereunder. The Securities shall be purchased by the Company, at the
option of the Holder thereof, in whole or in part in integral multiples of
$1,000 principal amount, on a date that is not earlier than 30 days and not
later than 60 days from the date the notice is given to holders, or such later
date as may be necessary for the Company to comply with the requirements under
the Exchange Act. If the aggregate purchase price of Securities validly tendered
and not withdrawn by holders thereof exceeds the Offer Excess Proceeds,
Securities to be purchased will be selected on a pro rata basis, based on the
Asset Sale Purchase Price. Upon completion of such Asset Sale Offer, the amount
of Excess Proceeds shall be reset to zero.
Notwithstanding the two immediately preceding paragraphs, the Company
and its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent (i) at least 75% of the
consideration of such Asset Sale constitutes Replacement Assets, cash or Cash
Equivalents (including obligations deemed to be cash under this covenant) and
(ii) such Asset Sale is for Fair Market Value; provided that (i) any
--------
consideration constituting (or deemed to constitute) Cash Equivalents received
by the Company or any of its Restricted Subsidiaries in connection with any
Asset Sale permitted to be consummated under this paragraph shall constitute Net
Cash Proceeds subject to the provisions of the two preceding paragraphs and (ii)
to the extent such replacement Assets include any Capital Stock of any Person,
such Person becomes a Restricted Subsidiary.
On the Asset Sale Offer Purchase Date, the Company shall (i) accept
for payment (subject to proration as described in the Offer to Purchase)
Securities or portions thereof tendered pursuant to the Asset Sale Offer, (ii)
deposit with the Paying Agent money, in immediately available funds, sufficient
to pay the purchase price of all Securities or portions thereof so tendered and
accepted and (iii) deliver to the Trustee the
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Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and make available for delivery to such
Holders a new Security of like tenor equal in principal amount at maturity to
any unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale Offer
not later than the first Business Day following the Asset Sale Offer Purchase
Date.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, create or permit to exist or become effective any restriction
(other than restrictions existing under Indebtedness outstanding on the date of
this Indenture and in the Bank Facility as of the date of its execution) that
would materially impair the ability of the Company to make an Asset Sale Offer
or, if such an offer is made, to pay for the Securities tendered for purchase.
The Company shall comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder, to the extent such laws
and regulations are applicable, in the event that an Asset Sale occurs and the
Company is required to purchase Securities as described above.
SECTION 10.15. Limitation on Dividends and Other Payment Restrictions Affecting
----------------------------------------------------------------
Restricted Subsidiaries.
------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to
(1) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock or any other interest
or participation in, or measured by, its profits,
(2) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary of the Company,
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(3) make loans or advances to the Company or any other Restricted
Subsidiary of the Company,
(4) transfer any of its properties or assets to the Company or any
other Restricted Subsidiary of the Company or
(5) guarantee any Indebtedness of the Company or any other Restricted
Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of
(A) applicable law,
(B) customary non-subletting, non-assignment or other non-transfer
provisions of any license, contract, or any lease governing a leasehold
interest of the Company or any Restricted Subsidiary of the Company,
(C) customary restrictions on transfers of property subject to a Lien
permitted under the Indenture,
(D) the Bank Facility, but only if the Bank Facility permits payments
to the Company by its Restricted Subsidiaries in amounts sufficient to make
interest payments on the Securities unless there is a continuing default
under the Bank Facility or the making of any such interest payment would
(with or without the giving of notice or passage of time or both) result in
a default under the Bank Facility,
(E) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary of the Company 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 any of its
Subsidiaries, or the property or assets of the Person or any of its
Subsidiaries, so acquired,
(F) an agreement entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of a Restricted Subsidiary
or an agreement entered into for the sale of specified assets (in either
case, so long as such encumbrance or restriction, by its terms, terminates
on the earlier of the termination of such
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agreement or the consummation of such agreement and so long as such
restriction applies only to the Capital Stock or assets to be sold),
(G) any encumbrance or restriction in effect on the Issue Date, and
(H) any agreement that amends, extends, refinances, renews or replaces
any agreement described in the foregoing clauses, provided that the terms
--------
and conditions of any such agreement are not materially less favorable to
the Holders of the Securities than those under or pursuant to the agreement
amended, extended, refinanced, renewed or replaced.
SECTION 10.16. Limitations on Sale-Leaseback Transactions.
------------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any Sale-Leaseback Transaction with respect to any
property of the Company or any of its Restricted Subsidiaries. Notwithstanding
the foregoing, the Company and its Restricted Subsidiaries may enter into Sale-
Leaseback Transactions, provided, that (a) the Attributable Value of such Sale-
--------
Leaseback Transaction shall be deemed to be Indebtedness of the Company or a
Restricted Subsidiary and (b) after giving pro forma effect to any such Sale-
--- -----
Leaseback Transaction and the foregoing clause (a), the Company or a Restricted
Subsidiary would be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 10.8 of this Indenture.
SECTION 10.17. Limitations on Designation of Unrestricted Subsidiaries.
-------------------------------------------------------
(a) The Company may designate after the Issue Date any Restricted
Subsidiary as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default shall have occurred and be continuing at the time of
or after giving effect to such Designation;
(ii) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to the first paragraph of
Section 10.9 in an amount (the "Designation Amount") equal to the Fair
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Market Value of the Company's interest in such Subsidiary on such date
calculated in accordance with GAAP; and
(iii) the Company would be permitted under the Indenture to incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 10.8 at the time of such Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
10.9 for all purposes of this Indenture in the Designation Amount. Each of the
Subsidiaries conducting the business identified as assets held for disposition
or discontinuance in the Offering Memorandum shall constitute "Unrestricted
Subsidiaries" on the Issue Date.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, at any time (x) provide credit support other than guarantees or
pledges under the Bank Facility for or subject any of its property or assets
(other than the Capital Stock of any Unrestricted Subsidiary) to the
satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except
any non-recourse guarantee given solely to support the pledge by the Company or
any Restricted Subsidiary of the Capital Stock of an Unrestricted Subsidiary.
No Unrestricted Subsidiary shall at any time guarantee or otherwise provide
credit support for any obligation of the Company or any Restricted Subsidiary,
except as provided in the Bank Facility. All Subsidiaries of Unrestricted
Subsidiaries shall automatically be deemed to be Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation;
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(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time by a Restricted Subsidiary, have been permitted to be incurred
for all purposes of this Indenture; and
(iii) any transaction (or series of related transactions) between
such Subsidiary and any of its Affiliates that occurred on or after the
Issue Date while such Subsidiary was an Unrestricted Subsidiary would be
permitted by Section 10.11 as if such transaction (or series of related
transactions) had occurred at the time of such Revocation.
(c) In the event the Company or a Restricted Subsidiary makes any
Investment in any Person which was not previously a Subsidiary and such Person
thereby becomes a Subsidiary, such Person shall automatically be an Unrestricted
Subsidiary and the Company may designate such Subsidiary as a Restricted
Subsidiary only if it meets the foregoing requirements of clauses (i) and (ii)
of paragraph (b).
(d) All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
SECTION 10.18. Provision of Financial Information.
----------------------------------
For as long as the Securities are outstanding whether or not the
Company is subject to Section 13(a) or 15(d) of the Exchange Act, or any
successor provision thereto, the Company shall file with the Commission the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission (if permitted by Commission
practice and applicable law and regulations) pursuant to such Section 13(a) or
15(d) or any successor provision thereto if the Company were subject thereto,
such documents to be filed with the Commission on or prior to the respective
dates (the "Required Filing Dates") by which the Company would have been
required to file them. The Company shall also in any event (a) within 15 days
after each Required Filing Date (i) transmit, or cause to be transmitted, by
mail to all Holders, as their names and addresses appear in the Security
Register, without cost to such Holders, and (ii) file with the Trustee copies of
the annual reports, quarterly reports and other documents which the Company is
required to file with the Commission pursuant to the preceding sentence or, if
such filing is not so permitted, information of a similar nature and (b) if
filing such documents
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by the Company with the Commission is not permitted by Commission practice and
applicable law and regulations, promptly upon written request supply copies of
such documents to any prospective Holder. In addition, for so long as any
Securities remain outstanding, the Company will furnish to the Holders of
Securities and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act, and, to any beneficial Holder of Securities, if not
obtainable from the Commission, information of the type that would be filed with
the Commission pursuant to the foregoing provisions upon the request of any such
Holder.
SECTION 10.19. Statement by Officers as to Default; Compliance Certificates.
------------------------------------------------------------
(a) The Company shall deliver to the Trustee, prior to May 1 in each
year, an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within five days after the Company becomes aware of the occurrence
of a Default or an Event of Default, an Officers' Certificate setting forth the
details of such Default or Event of Default, and the action which the Company
proposes to take with respect thereto.
SECTION 10.20. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 8.1, provided pursuant to Section
9.1(2) and set forth in Sections 10.4 to 10.12 and 10.15 to 10.17, inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount at maturity of the Outstanding Securities shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant 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 covenant or condition shall
remain in full force and ef-
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fect; provided, however, with respect to an Offer as to which an Offer to
-------- -------
Purchase has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer, and the Company
may not omit to comply with the terms of such Offer as to such Holder.
Notwithstanding anything set forth in this Indenture to the contrary,
if no Default shall have occurred and be continuing on any day when the
Securities are rated by both Xxxxx'x and S&P in one of its generic rating
categories which signifies investment grade (which at the date of this Indenture
are the four highest rating categories (within which there are sub-categories
indicating relative standing)), the limitations set forth in Sections 10.4 to
10.11 and 10.14 to 10.17, inclusive and clause (c) in Section 8.1 shall no
longer be applicable.
SECTION 10.21. 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
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Company, in the
amounts, at the times, at the Redemption Prices (together with any applicable
accrued and unpaid interest to the Redemption Date), and subject to the
conditions specified in the form of Security hereinafter set forth.
SECTION 11.2. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company, as permitted
by this Indenture and the provisions of the Securities, shall be made in
accordance with such provisions and this Article.
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SECTION 11.3. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 11.1, shall be evidenced by a Board Resolution. In the event of any
redemption at the election of the Company pursuant to Section 11.1, the Company
shall notify the Trustee, in case of a redemption of less than all the
Securities, at least 60 days, and in the case of a redemption of all the
Securities, at least 40 days, prior to the Redemption Date fixed by the Company
(in each case, unless a shorter notice shall be satisfactory to the Trustee)of
such Redemption Date and of the principal amount at maturity of Securities to be
redeemed.
SECTION 11.4. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
In the event that less than all of the Securities are to be redeemed
at any time, selection of such Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, if the Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
--- ----
or by such method as the Trustee shall deem fair and appropriate; provided,
--------
however, that Securities shall only be redeemable in amounts of $1,000 principal
-------
amount at maturity or an integral multiple of $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount at
maturity thereof to be redeemed.
For all purposes of this Indenture and of the Securities, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount at maturity of
such Securities which has been or is to be redeemed.
SECTION 11.5. Notice of Redemption.
--------------------
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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All notices of redemption shall identify the Securities to be redeemed
(including, if used, CUSIP or CINS numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amount at maturity) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after such Redemption Date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) if the redemption is being made pursuant to the provisions of the
Securities regarding a Public Equity Offering or a sale of Qualified Equity
Interests of the Company to Strategic Equity Investors, a brief description
of the transaction or transactions giving rise to such redemption, the
nature and amount of Qualified Equity Interests sold by the Company thereto
in such transaction or transactions, the aggregate purchase price thereof
and the net cash proceeds therefrom available for such redemption, the date
or dates on which such transaction or transactions were completed and the
percentage of the aggregate principal amount at maturity of Outstanding
Securities being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 11.6. Deposit of Redemption Price.
---------------------------
Prior to 1:00 p.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Inter-
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est Payment Date) any applicable accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 11.7. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any applicable
accrued interest) such Securities shall not bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with any
applicable accrued and unpaid interest to the Redemption Date; provided,
--------
however, that installments of interest whose Stated Maturity is on or prior to
-------
the Redemption Date shall be payable to the Holders of such Securities, or one
or more predecessor securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
3.7.
If any Security called for redemption in accordance with the election
of the Company made pursuant to Section 11.1 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 provided by the Security.
SECTION 11.8. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 10.2 (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 his attorney duly authorized
in writing), and the Company and shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount at
maturity equal to and in exchange for the unredeemed portion of the principal
amount at maturity of the Security so surrendered.
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ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1. Company's Option to Effect Defeasance or Covenant Defeasance.
-------------------------------------------------------------
The Company may elect, at its option at any time, to have Section 12.2
or Section 12.3 applied to the Outstanding Securities (as a whole and not in
part) upon compliance with the conditions set forth below in this Article. Any
such election shall be evidenced by a Board Resolution.
SECTION 12.2. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole and not in part), the Company shall be
deemed to have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 12.4 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Outstanding Securities to receive,
solely from the trust fund described in Section 12.4 and as more fully set forth
in such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when payments are due, (2) the Company's obligations
with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, the Company may
exercise its option to have this Section applied to the Outstanding Securities
(as a whole and not in part) notwithstanding the prior exercise of its option to
have Section 12.3 applied to such Securities.
SECTION 12.3. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole
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and not in part), (i) the Company shall be released from its obligations under
Section 8.1(3), Sections 10.5 through 10.19, inclusive, and any covenant
provided pursuant to Section 9.1(2) and (ii) the occurrence of any event
specified in Section 5.1(3) (with respect to Section 8.1(3) and any of Sections
10.5 through 10.18, inclusive, and any such covenants provided pursuant to
Section 9.1(2)), shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 12.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, 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 specified Section (to the extent so specified
in the case of Section 5.1(3)), whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 12.4. Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to the application of Section
12.2 or Section 12.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and any installment of interest on such Securities on
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the respective Stated Maturities thereof, in accordance with the terms of
this Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation 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 (ii) an obligation 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 (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt 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 (x) 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 of 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 evidenced by
such depositary receipt.
(2) In the event of an election to have Section 12.2 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 12.3 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a re-
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xxxx of the deposit and Covenant Defeasance to be effected with respect to
such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
(4) No Default or Event of Default with respect to the Outstanding
Securities shall have occurred and be continuing at the time of such
deposit.
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of
the Company.
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company or any Subsidiary is a party or by which
it is bound.
(7) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to any
rights of holders of Indebtedness, including, without limitation, those
arising under this Indenture, after the 121st day following the deposit and
(B) after the 121st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(9) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on
the Securities on the date of such deposit or at any time ending on the
121st day after the date of such deposit.
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent under this Indenture to either Defeasance or Covenant Defeasance,
as the case may be, have been complied with.
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SECTION 12.5. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
--------------------------------------------------------------
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 12.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 12.4 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust 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. Government Obligations
deposited pursuant to Section 12.4 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 Outstanding Securities.
Anything in this Article 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 12.4
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 the Defeasance or Covenant Defeasance, as the case may be,
with respect to the Outstanding Securities.
SECTION 12.6. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining,
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 12.2 or 12.3 shall
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be revived and reinstated (commencing with the date such order or judgment
becomes final and binding and not subject to further appeal) as though no
deposit had occurred pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 12.5 with respect to such Securities in
accordance with this Article; provided, however, that if the Company makes any
-------- -------
payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust. No action taken or omitted to be taken by the
Company, or any Subsidiary of the Company subsequent to compliance with the
provisions of Section 12.4 hereof and prior to any order or judgment of a court
or governmental authority described in the immediately preceding sentence shall
cause an Event of Default under this Indenture (other than under Section 5.1(1)
or 5.1(2) hereof), unless such order or judgment was obtained by or on behalf
of, or with the cooperation of, the Company, or a Subsidiary of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested as of the day and year first above written.
FOX KIDS WORLDWIDE, INC.
By: /s/ Xxx Xxxxx
_____________________________________
Name: Xxx Xxxxx
Title: President
Attest:
/s/ Xxxxxxx Xxxxx
______________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxx Xx Xxxxxx
_____________________________________
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
EXHIBIT A-1
[FORM OF SERIES A SECURITY]
---------------------------
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY 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 THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT
IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF
THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT 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-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY,
THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SAT-
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ISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
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FOX KIDS WORLDWIDE, INC.
10 1/4% Senior Discount Note due 2007, Series A
No. $__________
CUSIP NO. 000000XX0-144A
X00000XX0-Reg S
Fox Kids Worldwide, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of Dollars (or, if the Cash Interest Election
has been made, the Accreted Value of this Security as of the Cash Interest
Election Date) on November 1, 2007 and to pay cash interest thereon semi-
annually on May 1 and November 1 in each year, commencing on the earlier of May
1, 2003 and the May 1 or November 1 immediately after the Cash Interest Election
Date (if any) at the rate of 10 1/4% per annum, until the principal hereof is
paid or duly provided for, provided that any principal and premium, and any such
--------
installment of interest, which is overdue shall bear interest at the rate of 10
1/4% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly
provided for. Cash interest on the Securities will not accrue until the earlier
of the Cash Interest Election Date or November 1, 2002. The interest so payable
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on
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which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
-------- -------
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and attested.
FOX KIDS WORLDWIDE, INC.
By:_________________________________
Name:
Title:
Attest:
________________________
Name:
Title:
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Securities referred to in the within mentioned
Indenture.
The Bank of New York,
as Trustee
Dated: By:_________________________________
Authorized Signatory
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Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as 10 1/4% Senior Discount Notes due 2007, Series A (herein
called the "Initial Securities"), limited in aggregate principal amount at
maturity to $618,670,000 issued and to be issued under an Indenture, dated as of
October 28, 1997 (herein called the "Indenture," which term shall have the
meaning assigned to it in such instrument), among the Company, and The Bank of
New York, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities include the Initial Securities, the
Private Exchange Securities and the Exchange Securities, issued in exchange for
the Initial Securities pursuant to the Registration Rights Agreement. The
Initial Securities, the Private Exchange Securities and the Exchange Securities
are treated as a single class of securities under the Indenture.
The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. (S)(S) 7aaa - 77bbbb (the "TIA")), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
This Security is redeemable at the option of the Company, in whole or
in part, at any time on or after November 1, 2002, at the Redemption Prices
(expressed as percentages of principal amount at maturity) set forth below, plus
accrued and unpaid interest, if any, to the Redemption Date, if redeemed during
the 12-month period beginning on November 1 of the years indicated below:
Redemption
Year Price
---- ----------
2002.............................. 105.125%
2003.............................. 103.417%
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2004.............................. 101.708%
2005 and thereafter............... 100.000%
In addition, at any time, or from time to time, on or prior to,
November 1, 2000, the Company may, at its option, use the net cash proceeds of
(a) one or more Public Equity offerings or (b) sales of Qualified Equity
Interests of the Company to Strategic Equity Investors resulting in gross cash
proceeds to the Company of at least $100,000,000 in the aggregate to redeem up
to 35% of the originally issued principal amount at maturity of the Securities,
at a redemption price equal to 110.25% of the Accreted Value thereof or, if a
Cash Interest election has been made, 110.25% of the principal amount at
maturity thereof plus accrued and unpaid interest, if any, to the Redemption
Date; provided that at least 65% of the originally issued principal amount at
--------
maturity of Securities remains outstanding immediately after the occurrence of
such redemption. In order to effect the foregoing redemption with the proceeds
of any Public Equity Offering or sale of Qualified Equity Interests to Strategic
Equity Investors, the Company shall send the redemption notice not later than 60
days after the consummation of such Public Equity Offering or sale of Qualified
Equity Interests to Strategic Equity Investors.
The Securities are not subject to any sinking fund.
The Indenture provides that the Company is obligated (a) upon the
occurrence of a Change in Control, to make an offer to purchase all outstanding
Securities at a purchase price of 101% of the Accreted Value on the Change of
Control Purchase Date, unless the Change of Control Purchase Date is on or after
the earlier to occur of November 1, 2002 and the Cash Interest Election Date, in
which case such purchase price shall be equal to 101% of the aggregate principal
amount at maturity thereof, plus accrued and unpaid interest, if any, to the
date of purchase and (b) to make an offer to purchase Securities with a portion
of the net cash proceeds of certain sales or other dispositions of assets at a
purchase price of 100% of the Accreted Value on the Purchase Date, unless the
Purchase Date is on or after the earlier to occur of November 1, 2002 and the
Cash Interest Election Date, in which case such purchase price shall be equal to
100% of the principal amount at maturity thereof plus accrued and unpaid
interest, if any, to the date of purchase.
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In the event of redemption or purchase of this Security in part only
pursuant to a Change of Control Offer or an Asset Sale Offer or a Deposit Offer,
a new Security or Securities for the unredeemed or unpurchased portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount on all of the outstanding
Securities, in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount at maturity of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount at maturity at Stated
Maturity of the Securities at the time Outstanding, on behalf of the Holders of
all the Securities, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less
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than 25% in principal amount at maturity of the Securities at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount at maturity of Securities at the time
outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding for 15 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits described
in the Indenture, including any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein (or, in
the case of redemption, on or after the Redemption Date or, in the case of any
purchase of this Security required to be made pursuant to a Change of Control
Offer or an Asset Sale Offer or a Deposit Offer, on or after the relevant
purchase date).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount at maturity, will be issued to the designated transferee or
transferees.
This Security is issuable only in registered form without coupons in
denominations of $1,000 principal amount at maturity and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount at maturity of Securities of like tenor of a different
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authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company, or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Pursuant to the Registration Rights Agreement by and among the
Company, and the Initial Purchasers, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for 10 1/4% Senior Discount Notes due 2007,
Series B, of the Company (herein called the "Exchange Notes"), which have been
registered under the Securities Act, in like principal amount at maturity and
having identical terms as the Initial Securities (other than as set forth in
this paragraph). The Holders of Initial Securities shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I (or we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration settlement under the
Securities Act of 1933, as amended (the "Securities Act"), covering resales of
--------------
this Security (which effectiveness shall not have been suspended or terminated
at the date of the transfer) and (ii) the date two years (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) after the later of the original issuance date appearing on
the face of this Security (or any predecessor thereto) or the last date on which
the Company or any affiliate of the Company was the owner of this Security (or
any predecessor thereto), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that:
[Check One]
----------
[_] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by
Rule 144A thereunder.
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[_] (b) this Security is being transferred other than in accordance with
(a) above and documents, including a transferor certificate
substantially in the form of Exhibit D to the Indenture in the
---------
case of a transfer pursuant to Regulation S, are being furnished
which comply with the conditions of transfer set forth in this
Security and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obliged to register this Security in the name
of any Person other than the Holder hereof unless and until the conditions to
any such transfer of registration set forth herein and in Section 3.14 of the
Indenture shall have been satisfied.
________________________________________________________________________________
Date: __________ Your signature _____________________________________________
(Sign exactly as your name appears on the
other side of this Security)
By: _________________________________________
NOTICE: To be executed by an executive
officer
Signature Guarantee: __________________________________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon
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the undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ________________ _______________________________________________
NOTICE: To be executed by an executive officer
A-1-13
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 10.13 or 10.14 of the Indenture, check the
box:
[_]
If you want to elect to have only a part of the principal amount at
maturity of this Security purchased by the Company pursuant to Section 10.13 or
10.14 of the Indenture, state the portion of such amount: $_____________.
Dated: ________________ Your Signature:_________________________________
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
X-0-00
XXXXXXX X-0
FOR KIDS WORLDWIDE, INC.
10 1/4% Senior Discount Note due 2007, Series B
No. _____ $_____________
CUSIP NO. 351383ABO-144A
X00000XX0-Reg S
Fox Kids Worldwide, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to)
promises to pay to Cede & Co. or registered assigns, the principal sum of
Dollars (or, if the Cash Interest Election has been made, the Accreted Value of
this Security as of the Cash Interest Election Date) on November 1, 2007 and to
pay cash interest thereon semi-annually on May 1 and November 1 in each year,
commencing on the earlier of May 1, 2003 and the May 1 or November 1 immediately
after the Cash Interest Election Date (if any), at the rate of 10 1/4% per
annum, until the principal hereof is paid or duly provided for, provided that
--------
any principal and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of 10 1/4% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or duly provided for. The interest so
payable and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the April
15 or October 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the re-
A-2-1
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quirements of any securities exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
-------- -------
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-2-2
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and
FOX KIDS WORLDWIDE, INC.
By: _________________________________________
Name:
Title:
Attest:
____________________________________
Name:
Title:
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Securities referred to in the within mentioned
Indenture.
The Bank of New York,
as Trustee
Dated: By: _________________________________________
Authorized Signatory
A-2-3
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Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company and designated as 10 1/4% Senior Discount Notes due 2007, Series B
(herein called the "Initial Securities"), limited in aggregate principal amount
at maturity to $618,670,000 issued and to be issued under an Indenture, dated as
of October 28, 1997 (herein called the "Indenture," which term shall have the
meaning assigned to it in such instrument), among the Company, and The Bank of
New York, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, , the Trustee and the Holders
of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities include the Initial Securities, the
Private Exchange Securities and the Exchange Securities, issued in exchange for
the Initial Securities pursuant to the Registration Rights Agreement. The
Initial Securities, the Private Exchange Securities and the Exchange Securities
are treated as a single class of securities under the Indenture.
The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. (S)(S) 7aaa - 77bbbb (the "TIA")), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
This Security is redeemable at the option of the Company, in whole or
in part, at any time on or after November 1, 2002, at the Redemption Prices
(expressed as percentages of principal amount at maturity) set forth below, plus
accrued and unpaid interest, if any, to the Redemption Date, if redeemed during
the 12-month period beginning on November 1 of the years indicated below:
Redemption
Year Price
---- ----------
A-2-4
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2002............................. 105.125%
2003............................. 103.417%
2004............................. 101.708%
2005 and thereafter.............. 100.000%
In addition, at any time, or from time to time, on or prior to
November 1, 2000, the Company may, at its option, use the net cash proceeds of
(a) one or more Public Equity Offerings or (b) sales of Qualified Equity
Interests of the Company to Strategic Equity Investors resulting in gross cash
proceeds to the Company of at least $100,000,000 in the aggregate to redeem up
to 35% of the originally issued principal amount at maturity of the Securities,
at a redemption price equal to 110.25% of the Accreted Value thereof or, if a
Cash Interest election has been made, 110.25% of the principal amount at
maturity thereof plus accrued and unpaid interest, if any, to the Redemption
Date; provided that at least 65% of the originally issued principal face amount
--------
at maturity of Securities remains outstanding immediately after the occurrence
of such redemption. In order to effect the foregoing redemption with the
proceeds of any Public Equity Offering or sale of Qualified Equity Interests to
Strategic Equity Investors, the Company shall send the redemption notice not
later than 60 days after the consummation of such Public Equity Offering or sale
of Qualified Equity Interests to Strategic Equity Investors.
The Securities are not subject to any sinking fund.
The Indenture provides that the Company is obligated (a) upon the
occurrence of a Change in Control, to make an offer to purchase all outstanding
Securities at a purchase price of 101% of the Accreted Value on the Change of
Control Purchase Date, unless the Change of Control Purchase Date is on or after
the earlier to occur of November 1, 2002 and the Cash Interest Election Date, in
which case such purchase price shall be equal to 101% of the aggregate principal
amount at maturity thereof, plus accrued and unpaid interest, if any, to the
date of purchase and (b) to make an offer to purchase Securities with a portion
of the net cash proceeds of certain sales or other dispositions of assets at a
purchase price of 100% of the Accreted Value on the Purchase Date, unless the
Purchase Date is on or after the earlier to occur of November 1, 2002 and the
Cash Interest Election Date, in which case such purchase price shall be equal to
100% of the principal amount at maturity thereof
A-2-5
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plus accrued and unpaid interest, if any, to the date of purchase.
In the event of redemption or purchase of this Security in part only
pursuant to a Change of Control Offer or an Asset Sale Offer or a Deposit Offer,
a new Security or Securities for the unredeemed or unpurchased portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount on all of the outstanding
Securities, in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount at maturity of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount at maturity at Stated
Maturity of the Securities at the time Outstanding, on behalf of the Holders of
all the Securities, to waive compliance by the Company and with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other
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remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in principal amount at maturity of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount at maturity of
Securities at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding for 15 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply to
certain suits described in the Indenture, including any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein (or, in the case of redemption, on or after the Redemption Date or, in
the case of any purchase of this Security required to be made pursuant to a
Change of Control Offer or an Asset Sale Offer or a Deposit Offer, on or after
the relevant purchase date).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount at maturity, will be issued to the designated transferee or
transferees.
This Security is issuable only in registered form without coupons in
denominations of $1,000 principal amount at maturity and any integral multiple
thereof. As provided in the
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Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount at maturity of Securities of
like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, , the Trustee and any agent of the Company, or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, , the Trustee nor any such agent shall be affected by
notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form
below and have your signature guaranteed:
I (or we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
Date: ___________ Your signature ____________________________________________
(Sign exactly as your name appears on the
other side of this Security)
By: _________________________________________
NOTICE: To be executed by
an executive officer
Signature Guarantee: ___________________________________________________________
A-2-9
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 10.13, or 10.14 of the Indenture, check the
box:
[_]
If you want to elect to have only a part of the principal amount at
maturity of this Security purchased by the Company pursuant to Section 10.13 or
10.14 of the Indenture, state the portion of such amount: $_____________.
Dated: Your Signature: __________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
A-2-10
EXHIBIT B
---------
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THIS
SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL
AMOUNT OF THIS SECURITY, (1) THE ISSUE PRICE IS $606.14; (2) THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT IS $393.86; (3) THE ISSUE DATE IS OCTOBER 28, 1997; AND
(4) THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 10-1/4%.
B-1
EXHIBIT C
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------------------------------
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Fox Kids Worldwide, Inc. (the "Company")
10 1/4% Senior Discount Notes due 2007 (the "Securities")
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $618,670,000 aggregate
principal amount at maturity of the Securities, we confirm that such sale has
been effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
--------------
represent that:
(1) the offer of the Securities was not made to a Person in the United
States;
(1) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market described in Rule
902(a) of Regulation S and neither we nor any Person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(2) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(3) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
C-1
(4) we have advised the transferee of the transfer restrictions
applicable to the Securities;
(5) if the circumstances set forth in rule 904(c) under the Securities
Act are applicable, we have complied with the additional conditions
therein, including (if applicable) sending a confirmation or other notice
stating that the Securities may be offered and sold during the restricted
period specified in Rule 903(c)(2) or (3), as applicable, only in
accordance with the provisions of Regulation S; pursuant to registration of
the Securities under the Securities Act; or pursuant to another available
exemption from the registration requirements under the Securities Act; and
(6) if the sale is made during a restricted period and the provisions
of Rule 903(c)(3) are applicable thereto, we confirm that such sale has
been made in accordance with such provisions.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________
Authorized Signature
C-2
EXHIBIT D
---------
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
------------------------------------------
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Fox Kids Worldwide, Inc. (the
"Company") 10 1/4% Senior
Discount Notes due 2007
-----------------------
Ladies and Gentlemen:
We are delivering this letter in connection with our proposed purchase
of 10 1/4% Senior Discount Notes due 2007 (the "Notes") of Fox Kids Worldwide,
Inc., a Delaware corporation (the "Company").
We hereby confirm that:
(i) we are an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act") (an "Accredited Investor"), or a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act (a
"QIB") purchasing Notes for the account of one or more Accredited
Investors;
(ii) any purchase of Notes by us will be for our own account or for
an account with respect to which we exercise sole investment discretion and
that we are and any such account are (a) a QIB, and aware that the sale is
being made in reliance on Rule 144A under the Securities Act, (b) an
Accredited Investor, or (c) a person other than a U.S. person ("foreign
purchasers", which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for
foreign beneficial owners (other than an estate or trust)) in off-
D-1
shore transactions meeting the requirements of Rule 903 or 904 of
Regulation S under the Securities Act;
(iii) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risk of purchasing
Notes and we and any accounts for which we are acting are able to bear the
economic risks of and an entire loss of our or their investment in the
Notes;
(iv) we are not acquiring Notes with a view to any distribution of
Notes in a transaction that would violate the Securities Act or the
securities laws of any state of the United States or any other applicable
jurisdiction; provided that the disposition of our property and the
property of any accounts for which we are acting as fiduciary shall remain
at all times within our and their control;
(v) we have had access to such financial and other information, and
have been afforded the opportunity to ask such questions of representatives
of the Company and receive answers thereto, as we deem necessary in order
to evaluate our proposed investment in the Notes; and
(vi) we acknowledge that the Notes have not been registered under
the Securities Act and that none of the Notes may be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons
except as set forth below.
We agree, on our own behalf and on behalf of each account for which we
acquire any Notes, that, prior to (x) the date which is two years (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) after the later of the date of original
issuance of the Notes and the last date on which the Company or any affiliate of
the Company was the owner of such Notes, or any predecessors thereto and (y)
such later date, if any, as may be required by applicable laws, the Notes may be
offered, resold, pledged or otherwise transferred only (a) to Multicanal or any
of its subsidiaries, (b) inside the United States to a QIB in compliance with
Rule 144A under the Securities Act, (c) inside the United States to an
Accredited Investor that, prior to such transfer, furnishes to the trustee under
the Indenture relating to the Notes (the "Trustee") a signed letter
D-2
substantially in the form of this letter, (d) outside the United States to
foreign purchasers in offshore transactions meeting the requirements of Rule
903 or Rule 904 of Regulation S under the Securities Act, (e) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), (f) pursuant to an effective registration statement under the
Securities Act or (g) pursuant to another available exemption from the
registration requirements of the Securities Act.
We understand that the Trustee will not be required to accept for
registration of transfer any Notes acquired by us, except upon presentation of
evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that
the Notes purchased by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
substance of this paragraph. We further agree to provide to any person
acquiring any of the Notes from us a notice advising such person that transfers
of such Notes are restricted as stated herein and that certificates representing
such Notes will bear a legend to that effect.
We acknowledge that the Company and the Trustee and others will rely
upon the truth and accuracy of our acknowledgments, representations and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our acknowledgments, representations or agreements herein cease to be
accurate and complete.
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as a fiduciary or agent.
As used herein, the terms "offshore transaction," "United States" and
"U.S. person" have the respective meanings given to them in Regulation S under
the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
D-3
EXHIBIT E-1
-----------
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
PAYMENT IN FULL IN CASH OF ALL OF THE SENIOR INDEBTEDNESS (AS DEFINED BELOW)
PURSUANT TO THE TERMS OF THIS SUBORDINATED NOTE AND TO THE EXTENT PROVIDED
HEREIN.
FORM OF SUBORDINATED NOTE
Dated: ________ __, ____
FOR VALUE RECEIVED, the undersigned FOX KIDS WORLDWIDE, INC., a
Delaware corporation ("FOX KIDS"), HEREBY PROMISES TO PAY TO THE ORDER OF
______________, ____________ [lender] or its permitted registered assigns (the
"SUBORDINATED LENDER"), the principal amount of [SPECIFY PRINCIPAL AMOUNT
EVIDENCED BY THIS NOTE IN WORDS] DOLLARS ($____________) on __________ __,
____/1/. Interest shall accrue on the principal amount outstanding from time to
time under this Subordinated Note, from and including the date of issuance
hereof until such principal amount is paid in full, at a rate per annum
(computed on the basis of a 365/366-day year) equal to ___%. Accrued and unpaid
interest shall be added automatically to the principal amount outstanding under
this Subordinated Note and shall become a part thereof unless, at any time, Fox
Kids elects to pay all or a portion of such interest in cash and is permitted to
make such payment in cash under Section 8(d)(i)(D) of Fox Kids Guarantee dated
October 28, 1997 made by Fox Kids in favor of the Secured Parties referred to in
the Credit Agreement (as hereinafter defined) and under Sections 10.8 and 10.9
of the Indentures (as hereinafter defined). Capitalized terms not otherwise
defined in this Subordinated Note shall have the same meanings as specified
therefor in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Subordinated Lender, at its offices at _______________,
________, _____________ (or at such other location as shall be designated by
the Subordinated Lender in a written notice to Fox Kids and the Senior
Representative (as hereinafter defined)), in same day funds. The loan made by
the Subordinated Lender to Fox Kids
__________________________
/1/ The stated maturity date of each of the Subordinated Notes shall be no
earlier than the later of (a) May 1, 1998 and (b) the payment in full cash
of all Senior Notes. None of the Subordinated Notes shall have any other
scheduled or mandatory redemption or repurchase dates.
E-1-1
hereunder, and all payments and prepayments made on account of principal hereof,
shall be recorded by the Subordinated Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto that is part of this Subordinated Note;
provided that the failure of the Subordinated Lender to make any such
recordation or endorsement shall not affect the obligations of Fox Kids under
this Subordinated Note.
Subject to the provisions of the Credit Agreement, the Fox Kids
Guarantee and the Indentures, the principal amount outstanding under this
Subordinated Shareholder Note may, at the option of Fox Kids, be prepaid at any
time, in whole or in part, without penalty or premium.
The aggregate principal amount owing to the Subordinated Lender from
time to time under this Subordinated Note, all accrued and unpaid interest
thereon, and any other indebtedness evidenced by or otherwise owing in respect
of this Subordinated Note (collectively, the "Subordinated Indebtedness") is and
shall be subordinate and junior in right of payment and otherwise, to the extent
and in the manner hereinafter set forth, to the prior payment in full of all of
the Senior Indebtedness (as hereinafter defined), whether now or hereafter
existing. For all purposes of this Subordinated Note, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and the plural forms of the terms defined):
(a) "Administrative Agent" means Citicorp USA, Inc., as the
administrative agent and the collateral agent for the Senior Lenders and
the other Secured Parties, together with any successor thereto appointed
pursuant to Article VIII of the Credit Agreement.
(b) "Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of October 28, 1997 among FCN Holding, Inc.,
International Family Entertainment, Inc. and Saban Entertainment, Inc., as
the Borrowers thereunder, Fox Kids Holdings, LLC, as a guarantor
thereunder, the Senior Lenders, Citicorp Securities, Inc., Chase
Securities, Inc. and BankBoston, N.A., as the Co-Arrangers for the
Facilities referred to therein, and the Administrative Agent, as such
agreement may be amended, supplemented or otherwise modified from time to
time.
(c) "Indentures" means, collectively, (a) the Indenture dated as of
October 28, 1997 between Fox Kids and The Bank of New York, as Trustee,
relating to the 9- 1/4% Senior Notes due 2007, and the Indenture dated as
of October 28, 1997 between Fox Kids and The Bank of New York, as Trustee,
relating to the 10- 1/4% Senior Discount Notes due
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2007, as such agreements may be amended, supplemented or otherwise modified
from time to time.
(d) "Senior Creditors" means, collectively, the Senior Secured
Creditors, the Senior Notes Creditors and the other holders, if any, of any
of the Senior Indebtedness.
(e) "Senior Indebtedness" means, collectively, the Senior Secured
Indebtedness and the Senior Notes Indebtedness.
(f) "Senior Lenders" means the banks, financial institutions and other
institutional lenders from time to time party to the Credit Agreement.
(g) "Senior Notes" means, collectively, the 9- 1/4% Senior Notes due
2007 and the 10- 1/4% Senior Discount Notes due 2007 issued under the
Indentures, in each case may be amended, supplemented or otherwise modified
from time to time.
(h) "Senior Notes Creditors" means, collectively, the trustees under
each of the Indentures and the holders from time to time of Senior Notes
Indebtedness.
(i) "Senior Notes Indebtedness" means (i) all Obligations of Fox
Kids, whether now or hereafter existing, under or in respect of the
Indentures and the Senior Notes, whether direct or indirect, absolute or
contingent, and whether for principal, interest (including, without
limitation, interest accruing after the filing of a petition initiating any
Insolvency Proceeding (as hereinafter defined), whether or not such
interest accrues after the filing of such petition for purposes of any
applicable Insolvency Laws (as hereinafter defined), or is an allowed claim
in such Insolvency Proceeding), premium, fees, indemnification payments,
contract causes of action, costs, expenses or otherwise and (ii) any and
all extensions, modifications, substitutions, amendments, renewals,
refinancings, replacements and refundings of any or all of the Obligations
referred to in clause (i) of this definition, and any instrument or
agreement evidencing or otherwise setting forth the terms of any
Indebtedness or other Obligations incurred in any such extension,
modification, substitution, amendment, renewal, refinancing, replacement or
refunding.
(j) "Senior Representative" means (i) the Administrative Agent or (ii)
after the payment in full of all of the Senior Secured Obligations and the
termination or ex-
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piration of all of the commitments of the Senior Secured Creditors in
respect thereof, either of the trustees for the Senior Notes or the holders
of a majority in aggregate principal amount of the outstanding Senior Notes
of either issue.
(k) "Senior Secured Creditors" means, collectively, the Administrative
Agent, the Senior Lenders and the other Secured Parties and any other
holder of any of the Senior Secured Indebtedness.
(l) "Senior Secured Indebtedness" means (i) all Obligations of Fox
Kids, whether now or hereafter existing, under or in respect of the Credit
Agreement, the Notes and the other Loan Documents, whether direct or
indirect, absolute or contingent, and whether for principal, interest
(including, without limitation, interest accruing after the filing of a
petition initiating any Insolvency Proceeding, whether or not such interest
accrues after the filing of such petition for purposes of any applicable
Insolvency Laws, or is an allowed claim in such Insolvency Proceeding),
premium, fees, indemnification payments, contract causes of action, costs,
expenses or otherwise and (ii) any and all extensions, modifications,
substitutions, amendments, renewals, refinancings, replacements and
refundings of any or all of the Obligations referred to in clause (i) of
this definition, and any instrument or agreement evidencing or otherwise
setting forth the terms of any Indebtedness or other Obligations incurred
in any such extension, modification, substitution, amendment, renewal,
refinancing, replacement or refunding.
Furthermore, for all purposes of this Subordinated Note, the Senior Indebtedness
shall not be deemed to have been paid in full until the latest of (A) the
payment in full in cash of all of the Senior Indebtedness and the expiration or
termination of all of the commitments of the Secured Parties and the other
holders thereof, (B) the expiration or termination of all of the Bank Hedge
Agreements and (C) the Termination Date.
In the event of any dissolution, winding up, liquidation, arrangement,
reorganization, adjustment, protection, relief or composition of Fox Kids or its
debts, whether voluntary or involuntary, in any bankruptcy, insolvency,
arrangement, reorganization, receivership, relief or other similar action or
proceeding under the United States Federal Bankruptcy Code or any other federal
or state bankruptcy or insolvency laws or any similar Requirements of Law of any
other jurisdiction covering the protection of creditors' rights or the relief of
debtors (collectively, the "INSOLVENCY LAWS"), or upon an assignment for the
benefit of creditors or any other marshalling of the
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property, assets and liabilities of Fox Kids or otherwise (each, an "Insolvency
Proceeding"), the Senior Creditors shall be entitled to receive payment in full
of all of the Senior Indebtedness before the Subordinated Lender is entitled to
receive any payment or distribution of any kind or character on account of all
or any of the Subordinated Indebtedness, and, to that end, any payment or
distribution of any kind or character (whether in cash, property or securities)
that otherwise would be payable or deliverable upon or with respect to the
Subordinated Indebtedness in any such Insolvency Proceeding (including, without
limitation, any payment that may be payable by reason of any other Indebtedness
of Fox Kids being subordinated to payment of the Subordinated Indebtedness)
shall be paid or delivered forthwith directly to the Senior Representative, for
the ratable account of the Senior Secured Creditors and the Senior Notes
Creditors, in the same form as so received (with any necessary endorsement or
assignment), for application (in the case of cash) to, or to be held as
collateral (in the case of noncash property or securities) for, the payment or
prepayment of the Senior Indebtedness until all of the Senior Indebtedness shall
have been paid in full.
No payment or distribution of any property or assets of Fox Kids of
any kind or character (including, without limitation, any payment that may be
payable by reason of any other Indebtedness of Fox Kids being subordinated to
payment of the Subordinated Indebtedness) shall be made by or on behalf of Fox
Kids for or on account of any Subordinated Indebtedness, unless and until all of
the Senior Indebtedness shall have been paid in full or unless such payment is
expressly permitted to be made under Section 8(d)(i)(D) of the Fox Kids
Guarantee and Sections 10.8 and 10.9 of the Indentures. Furthermore, so long as
the Senior Indebtedness shall not have been paid in full, the Subordinated
Lender shall not (a) ask, demand, xxx for, take or receive from Fox Kids,
directly or indirectly, in cash or other property or by setoff or in any manner
(including, without limitation, from or by way of collateral), payment of all or
any of the Subordinated Indebtedness, except to the extent that such payment is
expressly permitted to be made under Section 8(d)(i)(D) of the Fox Kids
Guarantee and Sections 10.8 and 10.9 of the Indentures, (b) commence, or join
with any creditor other than the Senior Representative in commencing, or
directly or indirectly cause Fox Kids to commence, or assist Fox Kids in
commencing, any Insolvency Proceeding, or (c) request or accept any collateral
or other security for the Subordinated Indebtedness. If the Subordinated
Lender, in contravention hereof, shall commence, prosecute or participate in any
Insolvency Proceeding, then the Senior Representative may intervene and
interpose as a defense or plea the terms of this Subordinated Note in its own
name or in the name of the Subordinated Lender.
E-1-5
Until such time as all of the Senior Indebtedness has been paid in
full, if any Insolvency Proceeding is commenced by or against Fox Kids:
(a) the Senior Representative is hereby irrevocably authorized and
empowered (in its own name or in the name of the Subordinated Lender or
otherwise), but shall have no obligation, to demand, xxx for, collect and
receive every payment or distribution otherwise payable to the Subordinated
Lender in respect of this Subordinated Note and give acquittance therefor,
and to file claims and proofs of claim and take such other actions
(including, without limitation, voting the Subordinated Indebtedness or
enforcing any security interest or other lien securing payment of the
Subordinated Indebtedness) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of the Senior
Representative or any of the other Senior Creditors under this Subordinated
Note; and
(b) the Subordinated Lender shall duly and promptly take such action
as the Senior Representative may reasonably request (i) to collect the
Subordinated Indebtedness for the account of the Senior Representative, for
the ratable benefit of the Senior Secured Creditors and the Senior Notes
Creditors, and to file appropriate claims or proofs of claim in respect of
the Subordinated Indebtedness, (ii) to execute and deliver to the Senior
Representative such powers of attorney, assignments or other instruments as
the Senior Representative may reasonably request in order to enable the
Senior Representative to enforce any and all claims with respect to, and
any security interests and other liens securing payment of, the
Subordinated Indebtedness and (iii) to collect and receive any and all
payments or distributions that may be payable or deliverable upon or with
respect to the Subordinated Indebtedness.
All payments or distributions upon or with respect to the Subordinated
Indebtedness that are received by the Subordinated Lender contrary to the
provisions of this Subordinated Note shall be received in trust for the benefit
of the Senior Representative and the Senior Creditors, shall be segregated from
other property or funds of the Subordinated Lender and shall be paid or
delivered forthwith directly to the Senior Representative, for the account of
the Senior Secured Creditors and the Senior Notes Creditors, in the same form as
so received (with any necessary endorsement or assignment), to be applied (in
the case of cash) to, or held as collateral (in the case of noncash property or
securities) for, the payment or prepayment
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of the Senior Indebtedness until all of the Senior Indebtedness shall have been
paid in full.
To the extent that Fox Kids, the Subordinated Lender or any of their
respective Subsidiaries or any other guarantor of or provider of collateral for
the Senior Indebtedness shall make any payment on the Senior Indebtedness that
is subsequently invalidated, declared to be fraudulent or preferential or set
aside or is required to be repaid to a trustee, receiver or any other party
under any applicable Insolvency Law or equitable cause (any such payment being a
"VOIDED PAYMENT"), then to the extent of such Voided Payment, that portion of
the Senior Indebtedness that had been previously satisfied by such Voided
Payment shall be reinstated and continue in full force and effect as if such
Voided Payment had never been made. To the extent that the Subordinated Lender
shall have received any payments subsequent to the date of the initial receipt
of such Voided Payment by the Senior Representative or any of the other Senior
Creditors and such payments have not been invalidated, declared to be fraudulent
or preferential or set aside or required to be repaid to a trustee, receiver or
any other party under any applicable Insolvency Law or equitable cause, the
Subordinated Lender shall be obligated and hereby agrees that any such payment
so made or received shall be deemed to have been received in trust for the
benefit of the Senior Representative and the other Senior Creditors, and the
Subordinated Lender hereby agrees to pay to the Senior Representative, upon
demand, the full amount so received by the Subordinated Lender during such
period of time to the extent necessary to fully restore to the Senior
Representative and the other Senior Creditors the amount of such Voided Payment,
which amount shall be applied as set forth in the immediately preceding
paragraph.
The Senior Representative is hereby authorized to demand specific
performance of the subordination provisions of this Subordinated Note, whether
or not Fox Kids shall have complied with any of the provisions hereof applicable
to it, at any time when the Subordinated Lender shall have failed to comply with
any of the subordination provisions of this Subordinated Note. The Subordinated
Lender hereby irrevocably waives any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of specific performance.
The Subordinated Lender will not:
(a) (i) Cancel or otherwise discharge any of the Subordinated
Indebtedness (except upon payment in full of all of the Senior Indebtedness
or, at any time and from time to time prior thereto, to the extent that
such payment is expressly permitted to be made under Sec-
E-1-7
tion 8 (d) (i) (D) of the Fox Kids Guarantee and under Sections 10.8 and
10.9 of the Indentures), (ii) convert or exchange any of the Subordinated
Indebtedness into or for any other Indebtedness (except to the extent
expressly permitted by the Indentures), (iii) convert or exchange any of
the Subordinated Indebtedness into or for any Equity Interest in Fox Kids
or otherwise (except to the extent expressly permitted by the Indentures)
or (iv) subordinate any of the Subordinated Indebtedness to any
Indebtedness of Fox Kids other than the Senior Indebtedness (except that no
consent of the holders of the Senior Notes or either of the trustees for
the Senior Notes shall be required to subordinate any of the Subordinated
Indebtedness to any other Indebtedness of Fox Kids (although nothing herein
shall limit the obligation of any holder of Indebtedness of Fox Kids to
turn over or otherwise subordinate itself to any or all of the Senior
Creditors in accordance with any subordination provisions applicable to
such Indebtedness);
(b) Sell, assign, pledge, encumber or otherwise dispose of any of the
Subordinated Indebtedness; or
(c) Permit the terms of any of the Subordinated Indebtedness to be
amended, waived, supplemented or otherwise modified in such a manner as
could have an adverse effect upon the rights or interests of the Senior
Representative or any of the other Senior Creditors under this Subordinated
Note, any of the Loan Documents, either of the Indentures or any of the
other agreements, instruments or other documents evidencing or otherwise
setting forth the terms of any of the Senior Indebtedness.
No payment or distribution to the Senior Representative or any of the
other Senior Creditors pursuant to the provisions of this Subordinated Note
shall entitle the Subordinated Lender to exercise any rights of subrogation in
respect thereof, nor shall the Subordinated Lender have any right of
reimbursement, restitution, exoneration, contribution or indemnification
whatsoever from any property or assets of Fox Kids or any of the other
guarantors, sureties or providers of collateral security for the Senior
Indebtedness, or any right to participate in any claim or remedy of the Senior
Representative or any of the other Senior Creditors against Fox Kids or any of
the Collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law (including, without limitation, the right
to take or receive from Fox Kids, directly or indirectly, in cash or other
property or by setoff or in any other manner, payment or security on account of
such claim, remedy or right), until (i) all of the Senior Indebtedness shall
have been paid in full and all of
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the commitments of the Secured Parties and the other holders thereof shall have
expired or been terminated, (ii) all of the Bank Hedge Agreements shall have
expired or been terminated and (iii) the Termination Date shall have occurred.
The holders of the Senior Indebtedness may, at any time and from time
to time, without any consent of or notice to the Subordinated Lender or any
other holder of the Subordinated Indebtedness and without impairing or releasing
the obligations of the Subordinated Lender hereunder:
(a) change the manner, place or terms of payment of, or change or
extend the time of payment of, or renew payment or change or extend the
time or payment of, or renew or alter, the Senior Indebtedness (including
any change in the rate of interest thereon), or amend, supplement or
otherwise modify in any manner any instrument, agreement or other document
under which any of the Senior Indebtedness is outstanding;
(b) sell, exchange, release, not perfect and otherwise deal with any
of the property or assets of any Person at any time pledged, assigned or
mortgaged to secure the Senior Indebtedness;
(c) release any Person liable in any manner under or in respect of the
Senior Indebtedness;
(d) exercise or refrain from exercising any rights against Fox Kids,
any of the other Loan Parties or any of their respective Subsidiaries or
any other Person;
(e) apply to the Senior Indebtedness any sums from time to time
received by or on behalf of the Senior Representative or any of the other
Senior Creditors; and
(f) sell, assign, transfer or exchange any of the Senior Indebtedness.
Each of Fox Kids and the Subordinated Lender will, if reasonably
requested by the Senior Representative or either of the trustees for the Senior
Notes, further xxxx their respective books of account in such a manner as shall
be effective to give proper notice of the effect of the subordination provisions
of this Subordinated Note. Each of Fox Kids and the Subordinated Lender will,
at its sole expense and at any time and from time to time, promptly execute and
deliver all further instruments and documents, and take all further actions,
that may be necessary or that the Senior Representative or either of the
trustees for the Senior Notes may reasonably deem desirable and may request in
order to protect any right or interest granted
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or purported to be granted under the subordination provisions of this
Subordinated Note or to enable the Senior Representative or any of the other
Senior Creditors to exercise and enforce its rights and remedies hereunder.
The foregoing provisions regarding subordination are and are intended
solely for the purpose of defining the relative rights of the holders of the
Senior Indebtedness, on the one hand, and the holders of the Subordinated
Indebtedness, on the other hand. Such provisions are for the benefit of the
holders of the Senior Indebtedness and shall inure to the benefit of, and shall
be enforceable by, the Senior Representative, on behalf of itself and the other
Senior Creditors, directly against the holders of the Subordinated Indebtedness,
and no holder of the Senior Indebtedness shall be prejudiced in its right to
enforce the subordination of any of the Subordinated Indebtedness by any act or
failure to act by Fox Kids or any Person in custody of its property or assets.
The subordination provisions herein shall constitute a continuing offer to each
and every holder of Senior Indebtedness from time to time and such holders are
intended third party beneficiaries hereof. Nothing contained in the foregoing
provisions is intended to or shall impair, as between Fox Kids and the holders
of the Subordinated Indebtedness, the obligations of Fox Kids to such holders.
Fox Kids agrees to pay, upon demand therefor, all of the reasonable
and properly documented out-of-pocket costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Senior
Representative or any of the other Senior Creditors in enforcing the provisions
of this Subordinated Note.
Fox Kids hereby waives promptness, diligence, presentment for payment,
demand, notice of dishonor and protest and any other notice with respect to this
Subordinated Note.
None of the rights or interests of the Subordinated Lender in this
Subordinated Note may be assigned or otherwise transferred thereby to any Person
other than a member of the TNCL Group or the Saban Group (each as defined in the
Credit Agreement on the Effective Date) without the prior written consent of Fox
Kids and the Senior Representative.
No amendment, waiver or modification of this Subordinated Note
(including, without limitation, the subordination provisions hereof), and no
consent to any departure herefrom, shall be effective unless the same shall be
in writing and signed by the Subordinated Lender and, if any such amendment,
waiver or modification of this Subordinated Note (including, without limitation,
the subordination provisions hereof) could
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adversely affect the rights or interests of the Senior Representative or any of
the other Senior Creditors under or in respect of this Subordinated Note, any of
the Loan Documents, either of these Indentures or any of the other agreements,
instruments or other documents evidencing or otherwise setting forth the terms
of any of the Senior Indebtedness in any manner, signed by the Senior
Representative and/or each of the trustees for the Senior Notes, and then, in
each case, such waiver, modification or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that
neither of the trustees for the Senior Notes shall be required to consent to any
such amendment, waiver or modification that would not adversely affect the
rights or interests of any of the Senior Notes Creditors.
No failure on the part of the Subordinated Lender or the Senior
Representative or any of the other Senior Creditors to exercise, and no delay in
exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided herein
are cumulative and are not exclusive of any remedies provided by applicable law.
This Subordinated Note shall be governed by, and construed in
accordance with, the laws of the State of New York, excluding (to the fullest
extent a New York court would permit) any rule of law that would cause
application of the laws of any jurisdiction other than the State of New York.
FOX KIDS WORLDWIDE, INC.
By __________________________________
Name:
Title:
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LOAN AND PAYMENTS AND PREPAYMENTS OF PRINCIPAL
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Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Loan or Prepaid Balance Made by
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X-0-00
XXXXXXX X-0
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Form of Opinion of Counsel Relating to
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Subordinated Loan/2/
--------------------
Each of Fox Kids and the Subordinated Lender has all requisite power
and authority to execute, deliver and perform its respective obligations under
the subordination terms of the Subordinated Loan, and the Subordinated Loan
(including the subordination terms thereof) has been duly and validly
authorized, executed and delivered by Fox Kids and the subordination terms of
the Subordinated Loan constitute the valid and binding agreement of each of Fox
Kids and each Subordinated Lender enforceable against each of Fox Kids and the
Subordinated Lender in accordance with the terms thereof, except that (a) the
enforceability thereof against such person may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally in the case of
a bankruptcy or insolvency involving such person and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability [Note: language in clauses (a) and (b) may be varied on a basis
consistent with such language and the opinions delivered to the Underwriters in
connection with the issuance of the Securities depending upon actual
jurisdictions involved].
___________________________
/2/ May take the form of one or more opinions.
E-2-1
