EXECUTION COPY
UNITED VIDEO SATELLITE GROUP, INC.
(to be renamed TV Guide, Inc.), Issuer
81/8% Senior Subordinated Notes due 2009
INDENTURE
Dated as of March 1, 1999
The Bank of New York,
Trustee
4.3-1
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions............................................................... 1
SECTION 1.02.
Other Definitions.........................................................22
SECTION 1.03.
Incorporation by Reference of Trust
Indenture Act.........................................................23
SECTION 1.04.
Rules of Construction.....................................................23
ARTICLE II
The Securities
SECTION 2.01.
Form and Dating...........................................................24
SECTION 2.02.
Execution and Authentication..............................................24
SECTION 2.03.
Registrar and Paying Agent................................................25
SECTION 2.04.
Paying Agent to Hold Money in Trust.......................................25
SECTION 2.05.
Securityholder Lists......................................................26
SECTION 2.06.
Replacement Securities....................................................26
SECTION 2.07.
Outstanding Securities....................................................26
SECTION 2.08.
Temporary Securities......................................................26
SECTION 2.09.
Cancelation...............................................................27
SECTION 2.10.
Defaulted Interest........................................................27
SECTION 2.11.
CUSIP Numbers.............................................................27
ARTICLE III
Redemption
SECTION 3.01.
Notices to Trustee........................................................27
SECTION 3.02.
Selection of Securities To Be Redeemed....................................28
SECTION 3.03.
Notice of Redemption......................................................28
SECTION 3.04.
Effect of Notice of Redemption............................................29
SECTION 3.05.
Deposit of Redemption Price...............................................29
SECTION 3.06.
Securities Redeemed in Part...............................................29
ARTICLE IV
Covenants
SECTION 4.01.
Payment of Securities.....................................................29
SECTION 4.02.
SEC Reports...............................................................30
SECTION 4.03.
Limitation on Debt........................................................30
SECTION 4.04.
Limitation on Restricted Payments.........................................32
SECTION 4.05.
Limitation on Liens.......................................................34
SECTION 4.06.
Limitation on Asset Sales.................................................35
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SECTION 4.07.
Limitation on Restrictions on Distributions from Restricted Subsidiaries..38
SECTION 4.08.
Limitation on Transactions with
Affiliates..............................................................39
SECTION 4.09.
Limitation on Layered Debt................................................41
SECTION 4.10.
Designation of Subsidiaries...............................................41
SECTION 4.11.
Change of Control.........................................................44
SECTION 4.12.
Future Subsidiary Guarantors..............................................45
SECTION 4.13.
Maintenance of Non-Investment
Company Status..........................................................46
SECTION 4.14.
Compliance Certificate....................................................46
SECTION 4.15.
Covenant Suspension.......................................................46
SECTION 4.16.
Further Instruments and Acts..............................................47
ARTICLE V
Successor Company
SECTION 5.01.
When Company May Merge or Transfer
Assets..................................................................47
SECTION 5.02.
When a Subsidiary Guarantor May Merge
or Transfer Assets........................................................48
ARTICLE VI
Defaults and Remedies
SECTION 6.01.
Events of Default.........................................................50
SECTION 6.02.
Acceleration..............................................................52
SECTION 6.03.
Other Remedies............................................................52
SECTION 6.04.
Waiver of Past Defaults...................................................52
SECTION 6.05.
Control by Majority.......................................................52
SECTION 6.06.
Limitation on Suits.......................................................53
SECTION 6.07.
Rights of Holders to Receive Payment......................................53
SECTION 6.08.
Collection Suit by Trustee................................................53
SECTION 6.09.
Trustee May File Proofs of Claim..........................................54
SECTION 6.10.
Priorities................................................................54
SECTION 6.11.
Undertaking for Costs.....................................................54
SECTION 6.12.
Waiver of Stay or Extension Laws..........................................55
ARTICLE VII
Trustee
SECTION 7.01.
Duties of Trustee.........................................................55
SECTION 7.02.
Rights of Trustee.........................................................56
SECTION 7.03.
Individual Rights of Trustee..............................................57
SECTION 7.04.
Trustee's Disclaimer......................................................57
SECTION 7.05.
Notice of Defaults........................................................57
SECTION 7.06.
Reports by Trustee to Holders.............................................57
SECTION 7.07.
Compensation and Indemnity................................................58
SECTION 7.08.
Replacement of Trustee....................................................58
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SECTION 7.09.
Successor Trustee by Merger...............................................59
SECTION 7.10.
Eligibility; Disqualification.............................................60
SECTION 7.11.
Preferential Collection of Claims Against
Company.................................................................60
SECTION 7.12.
Trustee's Application for
Instructions from the Company...........................................60
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01.
Discharge of Liability on Securities;
Defeasance............................................................60
SECTION 8.02.
Conditions to Defeasance..................................................61
SECTION 8.03.
Application of Trust Money................................................63
SECTION 8.04.
Repayment to Company......................................................63
SECTION 8.05.
Indemnity for Government Obligations......................................63
SECTION 8.06.
Reinstatement.............................................................63
ARTICLE IX
Amendments
SECTION 9.01.
Without Consent of Holders................................................63
SECTION 9.02.
With Consent of Holders...................................................64
SECTION 9.03.
Compliance with Trust Indenture Act.......................................66
SECTION 9.04.
Revocation and Effect of Xxxxxxxx and
Waivers...............................................................66
SECTION 9.05.
Notation on or Exchange of Securities.....................................66
SECTION 9.06.
Trustee to Sign Amendments................................................66
SECTION 9.07.
Payment for Consent.......................................................67
ARTICLE X
Subordination
SECTION 10.01.
Agreement To Subordinate..................................................67
SECTION 10.02.
Liquidation, Dissolution, Bankruptcy......................................67
SECTION 10.03.
Default on Senior Debt....................................................67
SECTION 10.04.
Acceleration of Payment of Securities.....................................68
SECTION 10.05.
When Distribution Must Be Paid Over.......................................68
SECTION 10.06.
Subrogation...............................................................68
SECTION 10.07.
Relative Rights...........................................................69
SECTION 10.08.
Subordination May Not Be Impaired
by Company..............................................................69
SECTION 10.09.
Rights of Trustee and Paying Agent........................................69
SECTION 10.10.
Distribution or Notice to
Representative............................................................69
SECTION 10.11.
Article X Not To Prevent Events of Default
or Limit Right To Accelerate..........................................69
SECTION 10.12.
Trust Moneys Not Subordinated.............................................70
SECTION 10.13.
Trustee Entitled To Rely..................................................70
SECTION 10.14.
Trustee to Effectuate Subordination.......................................71
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SECTION 10.15.
Trustee Not Fiduciary for Holders of Senior
Debt..................................................................70
SECTION 10.16.
Reliance by Holders of Senior Debt on
Subordination Provisions..............................................71
ARTICLE XI
Subsidiary Guarantees
SECTION 11.01.
Subsidiary Guarantees.....................................................71
SECTION 11.02.
Contribution..............................................................73
SECTION 11.03.
Successors and Assigns....................................................73
SECTION 11.04.
No Waiver.................................................................73
SECTION 11.05.
Modification..............................................................74
SECTION 11.06.
Execution of Supplemental Indenture for
Future Subsidiary Guarantors .........................................74
ARTICLE XII
Subordination of Subsidiary Guarantees
SECTION 12.01.
Agreement to Subordinate..................................................74
SECTION 12.02.
Liquidation, Dissolution, Bankruptcy......................................74
SECTION 12.03.
Default on Senior Debt of Subsidiary
Guarantor.............................................................75
SECTION 12.04.
Demand for Payment........................................................75
SECTION 12.05.
When Distribution Must Be Paid Over.......................................76
SECTION 12.06.
Subrogation...............................................................76
SECTION 12.07.
Relative Rights...........................................................76
SECTION 12.08.
Subordination May Not Be Impaired by
Subsidiary Guarantor..................................................76
SECTION 12.09.
Rights of Trustee and Paying Agent........................................76
SECTION 12.10.
Distribution or Notice to Representative..................................77
SECTION 12.11.
Article XII Not To Prevent Events of Default
under a Subsidiary Guarantee or Limit
Right to Accelerate...................................................77
SECTION 12.12.
Trustee Entitled to Rely..................................................77
SECTION 12.13.
Trustee to Effectuate Subordination.......................................78
SECTION 12.14.
Trustee Not Fiduciary for Holders of Senior
Debt of a Subsidiary Guarantor........................................78
SECTION 12.15.
Reliance by Holders of Senior Debt of a
Subsidiary Guarantor on Subordination
Provisions............................................................78
4.3-iv
ARTICLE XIII
Miscellaneous
SECTION 13.01.
Trust Indenture Act Controls..............................................78
SECTION 13.02.
Notices...................................................................78
SECTION 13.03.
Communication by Holders with
Other Holders...........................................................79
SECTION 13.04.
Certificate and Opinion as to Conditions
Precedent.............................................................79
SECTION 13.05.
Statements Required in Certificate or
Opinion...............................................................80
SECTION 13.06.
When Securities Disregarded...............................................80
SECTION 13.07.
Rules by Trustee, Paying Agent and
Registrar.................................................................80
SECTION 13.08.
Legal Holidays............................................................80
SECTION 13.09.
Governing Law.............................................................80
SECTION 13.10.
No Recourse Against Others................................................81
SECTION 13.11.
Successors................................................................81
SECTION 13.12.
Multiple Originals........................................................81
SECTION 13.13.
Table of Contents; Headings...............................................82
Schedule I - Initial Subsidiary Guarantors
Appendix A - Provisions Relating to Initial Securities
and Exchange Securities
Exhibit 1 to Appendix A - Form of Initial Security
Exhibit A - Form of Exchange Security
Exhibit B - Form of Supplemental Indenture
4.3-v
4.3-1
INDENTURE dated as of March 1, 1999, among
UNITED VIDEO SATELLITE GROUP, INC. (to be renamed TV
Guide, Inc.), a Delaware corporation (the "Company"),
each Subsidiary listed on Schedule I hereto
(collectively, the "Subsidiary Guarantors") and THE
BANK OF NEW YORK, a New York banking corporation, as
Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
81/8% Senior Subordinated Notes due 2009, to be issued as in this Indenture
provided (the "Initial Securities") and, if and when issued pursuant to a
registered or private exchange for the Initial Securities, the Company's 81/8%
Senior Subordinated Notes due 2009 (the "Exchange Securities" and, together with
the Initial Securities, the "Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means (a) any Property (other than cash,
cash equivalents and securities) to be owned by the Company or any Restricted
Subsidiary and used in a Related Business; or (b) Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary from any Person other than
the Company or an Affiliate of the Company; provided, however, that such
Restricted Subsidiary is primarily engaged in a Related Business.
"Affiliate" of any specified Person means: (a) any other
Person directly or indirectly controlling or controlled by (including under
direct or indirect common control with) such specified Person, or (b) any other
Person who is a director or officer of: (1) such specified Person, (2) any
Subsidiary of such specified Person, or (3) any Person described in clause (a)
above. For the purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. For purposes of Sections 4.06 and 4.08
and the definition of "Additional Assets" only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Asset Sale" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any
4.3-2
Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "disposition"), of: (a) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares), or (b) any
other assets of the Company or any Restricted Subsidiary outside of the ordinary
course of business of the Company or such Restricted Subsidiary, other than, in
the case of clause (a) or (b) above, (1) any disposition by a Restricted
Subsidiary to the Company or another Restricted Subsidiary or by the Company to
a Restricted Subsidiary, (2) any disposition to the extent the Property received
in exchange therefor constitutes a Permitted Investment or Restricted Payment
permitted by Section 4.04 and (3) any disposition effected in compliance with
Section 5.01(a).
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, at any date of determination, (a) if such Sale and Leaseback
Transaction is a Capital Lease Obligation, the amount of Debt represented
thereby according to the definition of "Capital Lease Obligation", and (b) in
all other instances, the greater of: (1) the Fair Market Value of the Property
subject to such Sale and Leaseback Transaction, and (2) the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale and Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of any date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing: (a)
the sum of the product of the numbers of years (rounded to the nearest
one-twelfth of one year) from the date of determination to the dates of each
successive scheduled principal payment of such Debt or redemption or similar
payment with respect to such Preferred Stock multiplied by the amount of such
payment by (b) the sum of all such payments.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means each day that is not a Legal
Holiday.
"Capital Lease Obligations" means any obligation under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of Debt represented by such obligation
shall be the capitalized amount of such obligations determined in accordance
with GAAP; and the Stated Maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without
4.3-3
payment of a penalty. For purposes of Section 4.05, a Capital Lease Obligation
shall be deemed secured by a Lien on the Property being leased.
"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash
proceeds received by the Company from the issuance or sale (other than to a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or any such Subsidiary for the benefit of their
employees) by the Company of its Capital Stock (other than Disqualified Stock)
after the Issue Date, net of attorneys' fees, accountants' fees, underwriters'
or placement agents' fees, discounts or commissions and brokerage, consultant
and other fees actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof. For purposes of the foregoing,
the value of the aggregate cash proceeds received by the Company from the
issuance of Capital Stock upon the exercise of any participations, rights,
warrants, options or other interests, will be the cash proceeds received upon
the issuance of such participations, rights, warrants, options or other interest
plus any incremental amount received by the Company upon the exercise thereof.
"Change of Control" means the occurrence of any of the
following events: (a) if (1) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor provisions to
either of the foregoing), including any group acting for the purpose of
acquiring, holding, voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, other than any one or more of the Permitted
Holders, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, except that a person will be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of 35% or more of the total voting power of the Voting Stock of the
Company, and (2) the Permitted Holders are the "beneficial owners" (as defined
in Rule 13d-3 under the Exchange Act, except that a person will be deemed to
have "beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, in the aggregate of a lesser percentage of the
total voting power of the Voting Stock of the Company than such other person or
group (for purposes of this clause (a), such person or group shall be deemed to
beneficially own any Voting Stock of a corporation held by any other corporation
(the "parent corporation") so long as such person or group beneficially owns,
directly or indirectly, in the aggregate a majority of the total voting power of
the Voting Stock of such parent corporation); or (b) the sale, transfer,
4.3-4
assignment, lease, conveyance or other disposition, directly or indirectly, of
all or substantially all the assets of the Company and the Restricted
Subsidiaries, considered as a whole (other than a disposition of such assets as
an entirety or virtually as an entirety to a Wholly Owned Subsidiary or one or
more Permitted Holders) shall have occurred; or (c) the Company merges,
consolidates or amalgamates with or into any other Person (other than one or
more Permitted Holders) or any other Person (other than one or more Permitted
Holders) merges, consolidates or amalgamates with or into the Company, in any
such event pursuant to a transaction in which the outstanding Voting Stock of
the Company is reclassified into or exchanged for cash, securities or other
Property, other than any such transaction where (1) the outstanding Voting Stock
of the Company is reclassified into or exchanged for other Voting Stock of the
Company or for Voting Stock of the surviving corporation and (2) the holders of
the Voting Stock of the Company immediately prior to such transaction own not
less than a majority of the Voting Stock of the Company or the surviving
corporation immediately after such transaction; or (d) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (together with any new directors whose election or
appointment by such Board or whose nomination for election by the shareholders
of the Company was approved by a Permitted Holder or a vote of not less than
three-fourths of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors then in office; or (e) the shareholders of the Company shall
have approved any plan of liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commodity Price Protection Agreement" means, in respect of a
Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in commodity prices.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable provisions hereof and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries (including the amortization of capitalized interest), plus, to the
extent not included in such total interest expense, and to the extent Incurred
by the Company or its Restricted Subsidiaries, without duplication, (a) interest
expense attributable to leases constituting part of a Sale and Leaseback
Transaction and to Capital Lease Obligations, (b) amortization of debt discount
and debt issuance cost, including commitment fees, (c) capitalized interest, (d)
non-cash interest expense,
4.3-5
(e) commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, (f) net costs associated
with Hedging Obligations (including amortization of fees), (g) Disqualified
Stock Dividends, (h) Preferred Stock Dividends, (i) interest Incurred in
connection with Investments in discontinued operations, (j) interest accruing on
any Debt of any other Person to the extent such Debt is Guaranteed by the
Company or any Restricted Subsidiary, and (k) the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest or fees to any Person (other than
the Company) in connection with Debt Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its consolidated Subsidiaries; provided,
however, that there shall not be included in such Consolidated Net Income: (a)
any net income (loss) of any Person (other than the Company) if such Person is
not a Restricted Subsidiary, except that: (1) subject to the exclusion contained
in clause (d) below, the Company's equity in the net income of any such Person
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution (subject,
in the case of a dividend or other distribution to a Restricted Subsidiary, to
the limitations contained in clause (c) below), and (2) the Company's equity in
a net loss of any such Person other than an Unrestricted Subsidiary for such
period shall be included in determining such Consolidated Net Income, (b) for
purposes of Section 4.04 only, any net income (loss) of any Person acquired by
the Company or any of its consolidated Subsidiaries in a pooling of interests
transaction for any period prior to the date of such acquisition, (c) any net
income (loss) of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or
the making of distributions, directly or indirectly, to the Company, except
that: (1) subject to the exclusion contained in clause (d) below, the Company's
equity in the net income of any such Restricted Subsidiary for such period shall
be included in such Consolidated Net Income up to the aggregate amount of cash
distributed by such Restricted Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to another Restricted Subsidiary,
to the limitation contained in this clause), and (2) the Company's equity in a
net loss of any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income, (d) any gain (but not loss) realized
upon the sale or other disposition of any Property of the Company or any of its
consolidated Subsidiaries (including pursuant to any Sale and Leaseback
Transaction) that is not sold or otherwise disposed of in the ordinary course of
business, (e) any extraordinary gain or loss, (f) the cumulative effect of a
change in accounting principles, and (g) any non-cash compensation expense
realized for grants of performance shares, stock options or other rights to
officers, directors and employees of the Company or any Restricted Subsidiary,
provided that such
4.3-6
shares, options or other rights can be redeemed at the option of the holder only
for Capital Stock of the Company (other than Disqualified Stock).
Notwithstanding the foregoing, for purposes of Section 4.04 only, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under Section
4.04 pursuant to clause (c)(4) thereof.
"Credit Facility" means, with respect to the Company or any
Restricted Subsidiary, one or more debt or commercial paper facilities with
banks or other institutional lenders (including the New Credit Facility)
providing for revolving credit loans, term loans, receivables or inventory
financing (including through the sale of receivables or inventory to such
lenders or to special purpose, bankruptcy remote entities formed to borrow from
such lenders against such receivables or inventory) or trade letters of credit,
in each case together with any extensions, revisions, refinancings or
replacements thereof by a lender or syndicate of lenders.
"Cumulative EBITDA" means, as of any date of determination,
the cumulative EBITDA of the Company and its consolidated Restricted
Subsidiaries from and after the last day of the fiscal quarter of the Company
immediately preceding the Issue Date to the end of the fiscal quarter ending
prior to the date of determination for which financial statements are available
or required or, if such cumulative EBITDA for such period is negative, the
amount (expressed as a negative number) by which such cumulative EBITDA is less
than zero.
"Cumulative Interest Expense" means, at any date of
determination, the aggregate amount of Consolidated Interest Expense accrued
from and after the last day of the fiscal quarter of the Company immediately
preceding the Issue Date to the end of the fiscal quarter ending prior to the
date of determination for which financial statements are available or required.
"Currency Exchange Protection Agreement" means, in respect of
a Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"D6/SMATV Interest" means all the assets of Netlink USA
other than an approximate 40% interest in Superstar/Netlink Group
L.L.C. and 80% of the Fair Market Value of Netlink USA's Temporary
Cash Investments.
"Debt" means, with respect to any Person on any date of
determination (without duplication): (a) the principal of and premium (if any)
in respect of (1) debt of such Person for money borrowed, and (2) debt evidenced
by notes, debentures, bonds or other similar instruments for the payment of
which such Person is responsible or liable; (b) all Capital Lease Obligations of
such Person and all Attributable Debt in respect of Sale and Leaseback
4.3-7
Transactions entered into by such Person; (c) all obligations of such Person
issued or assumed as the deferred purchase price of Property, all conditional
sale obligations of such Person and all obligations of such Person under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (d) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (a) through (c)
above) entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit); (e) the amount of all obligations of such Person with respect
to the Repayment of any Disqualified Stock or, with respect to any Subsidiary of
such Person, any Preferred Stock (but excluding, in each case, any accrued
dividends); (f) all obligations of the type referred to in clauses (a) through
(e) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee; (g) all obligations of the type referred to in clauses (a) through
(f) of other Persons secured by any Lien on any Property of such Person (whether
or not such obligation is assumed by such Person), the amount of such obligation
being deemed to be the lesser of the value of such Property or the amount of the
obligation so secured; and (h) to the extent not otherwise included in this
definition, Hedging Obligations of such Person. The amount of Debt of any Person
at any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence of
the contingency giving rise to the obligation, of any contingent obligations of
a type described above at such date. The amount of Debt represented by a Hedging
Obligation shall be equal to: (1) zero if such Hedging Obligation has been
Incurred pursuant to clause (e) of the definition of Permitted Debt, or (2) the
notional amount of such Hedging Obligation if not Incurred pursuant to such
clause.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Rating" means a rating equal to or higher than Ba3
(or the equivalent) by Moody's and B+ (or the equivalent) by S&P.
"Designated Senior Debt" means: (a) any Senior Debt that has,
at the time of determination, an aggregate principal amount outstanding of at
least $25 million (including the amount of all undrawn commitments and matured
and contingent reimbursement obligations pursuant to letters of credit
thereunder) that is specifically designated in the instrument evidencing such
Senior Debt and is designated in a notice delivered by the Company to the
holders or a Representative of the holders of such Senior Debt and in an
Officers' Certificate
4.3-8
delivered to the Trustee as "Designated Senior Debt" of the Company for purposes
of this Indenture, and (b) the Credit Facility.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable, in either case at the option of
the holder thereof) or otherwise: (a) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (b) is or may become
redeemable or repurchaseable at the option of the holder thereof, in whole or in
part, or (c) is convertible or exchangeable at the option of the holder thereof
for Debt or Disqualified Stock, on or prior to, in the case of clause (a), (b)
or (c), the first anniversary of the Stated Maturity of the Securities.
"Disqualified Stock Dividends" means all dividends with
respect to Disqualified Stock of the Company held by Persons other than a Wholly
Owned Subsidiary. The amount of any such dividend shall be equal to the quotient
of such dividend divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the Company.
"EBITDA" means, for any period, an amount equal to, for the
Company and its consolidated Restricted Subsidiaries: (a) the sum of
Consolidated Net Income for such period, plus the following to the extent
reducing Consolidated Net Income for such period: (1) the provision for taxes
based on income or profits or utilized in computing net loss, (2) Consolidated
Interest Expense, (3) depreciation, (4) amortization of intangibles, and (5) any
other non-cash items (other than any such noncash item to the extent that it
represents an accrual of or reserve for cash expenditures in any future period),
minus (b) all non-cash items increasing Consolidated Net Income for such period
(other than any such non-cash item to the extent that it will result in the
receipt of cash payments in any future period). Notwithstanding the foregoing
clause (a), the provision for taxes and the depreciation, amortization and
non-cash items of a Restricted Subsidiary shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same proportion) that
the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its shareholders.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Fair Market Value" means, with respect to any Property, the
price that could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or
4.3-9
compulsion to complete the transaction. Fair Market Value shall be determined,
except as otherwise provided, (a) if such Property has a Fair Market Value equal
to or less than $5 million, by any Officer of the Company, or (b) if such
Property has a Fair Market Value in excess of $5 million, by a majority of the
Board of Directors and evidenced by a Board Resolution, dated within 30 days of
the relevant transaction, delivered to the Trustee.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary which is not organized under the laws of the United States of America
or any State thereof or the District of Columbia.
"GAAP" means United States generally accepted accounting
principles as in effect on the Issue Date, including those set forth: (a) in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (b) in the statements and
pronouncements of the Financial Accounting Standards Board, (c) in such other
statements by such other entity as approved by a significant segment of the
accounting profession, and (d) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person: (a)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise), or (b) entered into for the purpose of assuring in any
other manner the obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include: (1) endorsements
for collection or deposit in the ordinary course of business, or (2) a
contractual commitment by one Person to invest in another Person for so long as
such Investment will, when made, constitute a Permitted Investment under clause
(b) of the definition of "Permitted Investment". The term "Guarantee" used as a
verb has a corresponding meaning. The term "Guarantor" shall mean any Person
Guaranteeing any obligation.
"Hedging Obligation" of any Person means any obligation of
such Person pursuant to any Interest Rate Agreement, Currency Exchange
Protection Agreement, Commodity Price Protection Agreement or any other similar
agreement or arrangement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Security register described in Section 2.03 as the
registered holder of any Security.
4.3-10
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of such Debt
or other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Debt or obligation on the balance sheet of such Person (and
"Incurrence" and "Incurred" shall have meanings correlative to the foregoing);
provided, however, that a change in GAAP that results in an obligation of such
Person that exists at such time, and is not theretofore classified as Debt,
becoming Debt shall not be deemed an Incurrence of such Debt; provided further,
however, that solely for purposes of determining compliance with Section 4.03,
amortization of debt discount shall not be deemed to be the Incurrence of Debt,
provided that in the case of Debt sold at a discount, the amount of such Debt
Incurred shall at all times be the aggregate principal amount at Stated
Maturity.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Independent Financial Advisor" means an investment banking
firm of national standing or any third party appraiser of national standing,
provided that such firm or appraiser is not an Affiliate of the Company.
"Initial Unrestricted Subsidiaries" means (1) UV Ventures,
Inc., SNTV Holdings, Inc., Prevue Ventures, Inc., UV Acquisition Subsidiary,
Inc., TV Guide Technology Ventures, Inc., Superstar/Netlink Group L.L.C., SSDS,
Inc., SpaceCom Systems, Inc., ODS Technologies, LP, TV Guide Enterprises
Solutions, Inc., the IP Subsidiary and any of their respective subsidiaries and
(2) following the Company's exercise of its SNG-Netlink Option, SNG-Netlink and
any of its subsidiaries.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect against fluctuations in interest
rates.
"Investment" by any Person means any direct or indirect loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person), advance or
other extension of credit or capital contribution (by means of transfers of cash
or other Property to others or payments for Property or services for the account
or use of others, or otherwise) to, or Incurrence of a Guarantee of any
obligation of, or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Debt issued by, any other Person.
For purposes of Sections 4.04 and 4.10 hereof and the definition of "Restricted
Payment", "Investment" shall include the portion (proportionate to the Company's
equity interest in such Subsidiary) of the Fair Market Value of the net assets
of any Subsidiary of the Company (other than the Initial Unrestricted
Subsidiaries) at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue
4.3-11
to have a permanent "Investment" in an Unrestricted Subsidiary of an amount (if
positive) equal to: (a) the Company's "Investment" in such Subsidiary at the
time of such redesignation, less (b) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the Fair Market Value of the net assets
of such Subsidiary at the time of such redesignation. In determining the amount
of any Investment made by transfer of any Property other than cash, such
Property shall be valued at its Fair Market Value at the time of such
Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Xxxxx'x and BBB- (or the equivalent) by S&P.
"IP Agreements" means each of the Assignment and License
Agreements to which the Company or the IP Subsidiary is a party on the Issue
Date or any assignment or license agreement in substantially the same form and
scope and on substantially the same terms entered into subsequent to the Issue
Date in each case with respect to patents, patent applications and the
inventions disclosed therein.
"IP Subsidiary" means United Video Properties, Inc.
"Issue Date" means the date on which the Initial
Securities are initially issued.
"Leverage Ratio" means the ratio of: (a) the
outstanding Debt of the Company and the Restricted Subsidiaries on
a consolidated basis, to (b) the LTM Pro Forma EBITDA.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction). An operating lease that is not a Capital Lease
Obligation or Sale and Leaseback Transaction shall not be deemed to constitute a
Lien.
"LTM Pro Forma EBITDA" means Pro Forma EBITDA for the four
most recent consecutive fiscal quarters for which financial statements are
available or required.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"Net Available Cash" from any Asset Sale means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the
4.3-12
form of assumption by the acquiring Person of Debt or other obligations relating
to the Property that is the subject of such Asset Sale or received in any other
non-cash form), in each case net of: (a) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Sale, (b) all payments made on any
Debt that is secured by any Property subject to such Asset Sale, in accordance
with the terms of any Lien upon or other security agreement of any kind with
respect to such Property, or which must by its terms, or in order to obtain a
necessary consent to such Asset Sale, or by applicable law, be repaid out of the
proceeds from such Asset Sale, (c) all distributions and other payments required
to be made to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Sale, and (d) the deduction of appropriate amounts provided
by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed in such Asset Sale and retained by the
Company or any Restricted Subsidiary after such Asset Sale.
"New Credit Facility" means (i) the Facility A Loan Agreement
dated March 1, 1999 for $300,000,000 Revolving Credit Facility among the
Company, the financial institutions defined as lenders therein and Bank of
America National Trust and Savings Association, as administrative agent, with TD
Securities (USA) Inc., as syndication agent, and The Bank of New York Company,
Inc., as documentation agent, and (ii) the Facility B Loan Agreement dated March
1, 1999 for $300,000,000 364-day Credit Facility among the Company, the
financial institutions defined as lenders therein and Bank of America National
Trust and Savings Association, as administrative agent, with TD Securities (USA)
Inc., as syndication agent, and The Bank of New York Company, Inc., as
documentation agent.
"Non-Guarantor Subsidiary" means: (a) Sneak Prevue, L.L.C.;
(b) any Foreign Restricted Subsidiary; (c) any Subsidiary (other than a Wholly
Owned Subsidiary) that is designated after the Issue Date as a Non-Guarantor
Subsidiary as permitted pursuant to Section 4.10 and not thereafter redesignated
as a Subsidiary Guarantor as permitted pursuant thereto; and (d) any Subsidiary
of a Non-Guarantor Subsidiary; provided, however, that if any Subsidiary
referred to in the preceding clause (a), (b), (c) or (d) ceases to be a
Restricted Subsidiary, then it shall also cease to be a Non-Guarantor
Subsidiary.
"Offering Memorandum" means the Offering Memorandum dated
February 23, 1999, excluding any supplement or amendment thereto, relating to
the offering of the Securities.
"Officer" means the Chief Executive Officer, the
President, the Chief Financial Officer or any Executive Vice
President of the Company.
"Officers' Certificate" means a certificate signed by two
Officers of the Company, at least one of whom shall be a member of the Office of
the Chairman, the principal executive
4.3-13
officer or the principal financial officer of the Company, and, except for
purposes of clause (j) of "Permitted Investment", delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal
counsel. The counsel may be an employee of or counsel to the Company or the
Trustee.
"Permitted Holders" means The News Corporation Limited,
Tele-Communications, Inc., Liberty Media Corporation, AT&T Corp.
and any Person who is a controlled Affiliate of any of the
foregoing.
"Permitted Interactive Partner" means any Person (or any
controlled Affiliate of such Person) who, on the Issue Date, owns or has a
license to use and sell (excluding specifications to use or sell) intellectual
property used or usable in an interactive video programming guide.
"Permitted Investment" means any Investment by the Company or
a Restricted Subsidiary in: (a) any Restricted Subsidiary or any Person that
will, upon the making of such Investment, become a Restricted Subsidiary,
provided that the primary business of such Restricted Subsidiary is a Related
Business; (b) any Person if as a result of such Investment such Person is merged
or consolidated with or into, or transfers or conveys all or substantially all
its Property to, the Company or a Restricted Subsidiary, provided that such
Person's primary business is a Related Business; (c) Temporary Cash Investments;
(d) receivables owing to the Company or a Restricted Subsidiary, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided, however, that such trade terms
may include such concessionary trade terms as the Company or such Restricted
Subsidiary deems reasonable under the circumstances; (e) payroll, travel and
similar advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business; (f) loans and advances to employees made in
the ordinary course of business consistent with past practices of the Company or
such Restricted Subsidiary, as the case may be, provided that such loans and
advances do not exceed $3 million at any one time outstanding; (g) stock,
obligations or other securities received in settlement of debts created in the
ordinary course of business and owing to the Company or a Restricted Subsidiary
or in satisfaction of judgments; (h)(1) any Person to the extent such Investment
represents the non-cash portion of the consideration received in connection with
an Asset Sale consummated in compliance with Section 4.06 or (2) the IP
Subsidiary to the extent such Investment consists of intellectual property,
including patent applications and issued patents, required to be assigned to the
IP Subsidiary according to the IP Agreements, provided that such intellectual
property is, at the same time, licensed back to the Company and its Restricted
Subsidiaries in accordance with the IP Agreements; (i) any Person to the extent
such Investment is made with Capital Stock Sale Proceeds, provided such
Investment is made at substantially the same time such
4.3-14
Capital Stock Sale Proceeds are received; (j) any Person to the extent such
Investment is expressly made pursuant to this clause (j) (as evidenced by an
Officers' Certificate executed on or prior to the date such Investment is made)
unless either (1) the Securities are rated below a Designated Rating by at least
one of the Rating Agencies on the date such Investment would be made or (2) a
Rating Decline occurs, in which case such Investment shall be returned to the
Company or such Restricted Subsidiary within 20 days of such Rating Decline,
provided that if both Rating Agencies shall have made a public announcement
affirming that the Securities will retain their Designated Rating after giving
pro forma effect to such Investment, then such Investment may be maintained
notwithstanding a subsequent Rating Decline, provided further that, so long as
the Securities are rated below a Designated Rating by at least one of the Rating
Agencies, the Fair Market Value of all Investments made pursuant to this clause
(j) (in each case determined as of the date such Investment was originally made)
shall be included in the calculation of the amount of Restricted Payments except
to the extent such Investment may be made as a Permitted Investment pursuant to
clause (k) below; and (k) other Investments (including any Investments made
pursuant to clause (j) above not otherwise included in the calculation of the
amount of Restricted Payments) made for Fair Market Value that do not exceed
$100 million in the aggregate.
"Permitted Liens" means: (a) Liens to secure Debt (including
related Debt under any Interest Rate Agreements) permitted to be Incurred under
clause (b) (or clause (e) with respect to such Interest Rate Agreements) of the
definition of Permitted Debt; (b) Liens to secure Debt permitted to be Incurred
under clause (c) of the definition of Permitted Debt, provided that any such
Lien may not extend to any Property of the Company or any Restricted Subsidiary,
other than the Property acquired, constructed or leased with the proceeds of
such Debt and any improvements or accessions to such Property; (c) Liens for
taxes, assessments or governmental charges or levies on the Property of the
Company or any Restricted Subsidiary if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision that shall
be required in conformity with GAAP shall have been made therefor; (d) Liens
imposed by law, such as carriers', warehousemen's and mechanics' Liens and other
similar Liens, on the Property of the Company or any Restricted Subsidiary
arising in the ordinary course of business and securing payment of obligations
that are not more than 60 days past due or are being contested in good faith and
by appropriate proceedings; (e) Liens on the Property of the Company or any
Restricted Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory requirements,
performance or return-of-money bonds, surety bonds or other obligations of a
like nature and Incurred in a manner consistent with industry practice, in each
case which are not Incurred in connection with the borrowing of money, the
obtaining of advances or credit or the payment of the deferred purchase price of
Property and which do not in the aggregate impair in any material respect the
use of
4.3-15
Property in the operation of the business of the Company and the Restricted
Subsidiaries taken as a whole; (f) Liens on Property at the time the Company or
any Restricted Subsidiary acquired such Property, including any acquisition by
means of a merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that any such Lien may not extend to any other
Property of the Company or any Restricted Subsidiary; provided further, however,
that such Liens shall not have been Incurred in anticipation of or in connection
with the transaction or series of transactions pursuant to which such Property
was acquired by the Company or any Restricted Subsidiary; (g) Liens on the
Property of a Person at the time such Person becomes a Restricted Subsidiary;
provided, however, that any such Lien may not extend to any other Property of
the Company or any other Restricted Subsidiary that is not a direct Subsidiary
of such Person; provided further, however, that any such Lien was not Incurred
in anticipation of or in connection with the transaction or series of
transactions pursuant to which such Person became a Restricted Subsidiary; (h)
pledges or deposits by the Company or any Restricted Subsidiary under workmen's
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Debt) or leases to which the Company or any Restricted Subsidiary is
party, or deposits to secure public or statutory obligations of the Company, or
deposits for the payment of rent, in each case Incurred in the ordinary course
of business; (i) utility easements, building restrictions and such other
encumbrances or charges against real Property as are of a nature generally
existing with respect to properties of a similar character; (j) Liens existing
on the Issue Date not otherwise described in clauses (a) through (i) above; and
(k) Liens on the Property of the Company or any Restricted Subsidiary to secure
any Refinancing, in whole or in part, of any Debt secured by Liens referred to
in clause (b), (f), (g) or (j) above; provided, however, that any such Lien
shall be limited to all or part of the same Property that secured the original
Lien (together with improvements and accessions to such Property) and the
aggregate principal amount of Debt that is secured by such Lien shall not be
increased to an amount greater than the sum of: (1) the outstanding principal
amount, or, if greater, the committed amount, of the Debt secured by Xxxxx
described under clause (b), (f), (g) or (j) above, as the case may be, at the
time the original Lien became a Permitted Lien under this Indenture, and (2) an
amount necessary to pay any fees and expenses, including premiums and defeasance
costs, incurred by the Company or such Restricted Subsidiary in connection with
such Refinancing.
"Permitted Refinancing Debt" means any Debt that Refinances
any other Debt, including any successive Refinancings, so long as: (a) such Debt
is in an aggregate principal amount (or if Incurred with original issue
discount, an aggregate issue price) not in excess of the sum of: (1) the
aggregate principal amount (or if Incurred with original issue discount, the
aggregate accreted value) then outstanding of the Debt being Refinanced, and (2)
an amount necessary to pay any fees and expenses, including premiums and
defeasance costs, related to such Refinancing, (b) the Average Life of such Debt
is equal to or greater than the
4.3-16
Average Life of the Debt being Refinanced, (c) the Stated Maturity of such Debt
is no earlier than the Stated Maturity of the Debt being Refinanced, and (d) the
new Debt shall not be senior in right of payment to the Debt that is being
Refinanced; provided, however, that Permitted Refinancing Debt shall not
include: (x) Debt of a Subsidiary that is not a Subsidiary Guarantor that
Refinances Debt of the Company or a Subsidiary Guarantor, or (y) Debt of the
Company or a Restricted Subsidiary that Refinances Debt of an Unrestricted
Subsidiary.
"Person" means any individual, corporation, company (including
any limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Preferred Stock Dividends" means all dividends with respect
to Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Subsidiary. The amount of any such dividend shall be
equal to the quotient of such dividend divided by the difference between one and
the maximum statutory federal income rate (expressed as a decimal number between
1 and 0) then applicable to the issuer of such Preferred Stock.
"principal" of any Debt (including the Securities) means the
principal amount of such Debt plus the premium, if any, on such Debt.
"Priority Debt" means Senior Debt of the Company or any
Subsidiary Guarantor or Debt of any Non-Guarantor Subsidiary (excluding, in any
such case, any Debt owed to the Company or an Affiliate of the Company).
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms hereof, a calculation performed in
accordance with Article 11 of Regulation S-X promulgated under the Securities
Act, as interpreted in good faith by the Board of Directors after consultation
with the independent certified public accountants of the Company, or otherwise a
calculation made in good faith by the Board of Directors after consultation with
the independent certified public accountants of the Company, as the case may be.
"Pro Forma EBITDA" means, for any period, the EBITDA of the
Company and its consolidated Restricted Subsidiaries, after giving effect to the
following: if: (a) since the beginning of such period, the Company or any
Restricted Subsidiary shall have made any Asset Sale or an Investment (by merger
or otherwise) in any Restricted Subsidiary (or any Person that becomes a
Restricted
4.3-17
Subsidiary) or an acquisition of Property, (b) the transaction giving rise to
the need to calculate Pro Forma EBITDA is such an Asset Sale, Investment or
acquisition, or (c) since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made such an Asset Sale, Investment or acquisition, EBITDA for such period
shall be calculated after giving pro forma effect to such Asset Sale, Investment
or acquisition as if such Asset Sale, Investment or acquisition occurred on the
first day of such period.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock in, and other securities of,
any other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Public Equity Offering" means an underwritten public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Purchase Money Debt" means Debt: (a) consisting of the
deferred purchase price of property, conditional sale obligations, obligations
under any title retention agreement, other purchase money obligations and
obligations in respect of industrial revenue bonds, in each case where the
maturity of such Debt does not exceed the anticipated useful life of the
Property being financed, and (b) Incurred to finance the acquisition,
construction or lease by the Company or a Restricted Subsidiary of such
Property, including additions and improvements thereto; provided, however, that
such Debt is Incurred within 180 days after the acquisition, construction or
lease of such Property by the Company or such Restricted Subsidiary.
"Rating Agencies" means Moody's and S&P.
"Rating Decline" means that at least one of the Rating
Agencies shall have rated the Securities below a Designated Rating on, or within
90 days after, the earlier of the date of public announcement of the making of a
Permitted Investment pursuant to clause (j) of the definition thereof or of the
intention of the Company to make such a Permitted Investment (which period shall
be extended so long as either of the Rating Agencies shall have publicly
announced that the rating of the Securities is under consideration for possible
downgrade or for a possible change in rating that does not indicate the
direction of the possible change). For the Company to have "publicly announced"
a Permitted Investment, the Company must have issued a press release and, if the
Company is announcing its intention to make the Permitted Investment, the press
release must include the primary economic terms of the Permitted Investment.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, repurchase, redeem, defease or retire, or
to issue other Debt, in exchange or
4.3-18
replacement for, such Debt. "Refinanced" and "Refinancing" shall
have correlative meanings.
"Related Business" means any business that is related,
ancillary or complementary to the businesses of the Company and the Restricted
Subsidiaries on the Issue Date.
"Repay" means, in respect of any Debt, to repay, prepay,
repurchase, redeem, legally defease or otherwise retire such Debt. "Repayment"
and "Repaid" shall have correlative meanings. For purposes of Section 4.06, Debt
shall be considered to have been Repaid only to the extent the related loan
commitment, if any, shall have been permanently reduced in connection therewith.
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of Senior
Debt.
"Restricted Payment" means (a) any dividend or distribution
(whether made in cash, securities or other Property) declared or paid on or with
respect to any shares of Capital Stock of the Company or any Restricted
Subsidiary (including any payment in connection with any merger or consolidation
with or into the Company or any Restricted Subsidiary), except for any dividend
or distribution that is made solely to the Company or a Restricted Subsidiary
(and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to the
other shareholders of such Restricted Subsidiary on a pro rata basis or on a
basis that results in the receipt by the Company or a Restricted Subsidiary of
dividends or distributions of greater value than it would receive on a pro rata
basis) or any dividend or distribution payable solely in shares of Capital Stock
(other than Disqualified Stock) of the Company; (b) the purchase, repurchase,
redemption, acquisition or retirement for value of any Capital Stock of the
Company or any Restricted Subsidiary (other than from the Company or a
Restricted Subsidiary) or any securities exchangeable for or convertible into
any such Capital Stock, including the exercise of any option to exchange any
Capital Stock (other than for or into Capital Stock of the Company that is not
Disqualified Stock); (c) the purchase, repurchase, redemption, acquisition or
retirement for value, prior to the date for any scheduled maturity, sinking fund
or amortization or other installment payment, of any Subordinated Obligation
(other than the purchase, repurchase or other acquisition of any Subordinated
Obligation purchased in anticipation of satisfying a scheduled maturity, sinking
fund or amortization or other installment obligation, in each case due within
one year of the date of acquisition); or (d) any Investment (other than
Permitted Investments) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company
unless such Subsidiary is an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Service or any successor
to the rating agency business thereof.
4.3-19
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person and
the Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Debt" of the Company means: (a) all obligations
consisting of the principal, premium, if any, and accrued and unpaid interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company to the extent
post-filing interest is allowed in such proceeding) in respect of: (1) Debt of
the Company for borrowed money, including under the Credit Facility, and (2)
Debt of the Company evidenced by notes, debentures, bonds or other similar
instruments permitted under this Indenture for the payment of which the Company
is responsible or liable; (b) all Capital Lease Obligations of the Company and
all Attributable Debt in respect of Sale and Leaseback Transactions entered into
by the Company; (c) all obligations of the Company (1) for the reimbursement of
any obligor on any letter of credit, bankers' acceptance or similar credit
transaction, (2) under Hedging Obligations, or (3) issued or assumed as the
deferred purchase price of Property and all conditional sale obligations of the
Company and all obligations under any title retention agreement permitted under
this Indenture; and (d) all obligations of other Persons of the type referred to
in clauses (a), (b) and (c) for the payment of which the Company is responsible
or liable as Guarantor; provided, however, that Senior Debt shall not include:
(A) Debt of the Company that is by its terms subordinate or pari passu in right
of payment to the Securities, including any Senior Subordinated Debt or any
Subordinated Obligations; (B) any Debt Incurred in violation of the provisions
of this Indenture; (C) accounts payable or any other obligations of the Company
to trade creditors created or assumed by the Company in the ordinary course of
business in connection with the obtaining of materials or services (including
Guarantees thereof or instruments evidencing such liabilities); (D) any
liability for Federal, state, local or other taxes owed or owing by the Company;
(E) any obligation of the Company to any Subsidiary; or (F) any obligations with
respect to any Capital Stock of the Company. "Senior Debt" of any Subsidiary
Guarantor has a correlative meaning.
"Senior Subordinated Debt" of the Company means the Securities
and any other subordinated Debt of the Company that specifically provides that
such Debt is to rank pari passu with the Securities and is not subordinated by
its terms to any other subordinated Debt or other obligation of the Company
which is not Senior Debt. "Senior Subordinated Debt" of any Subsidiary Guarantor
has a correlative meaning.
"Significant Subsidiary" means any Subsidiary that
would be a "Significant Subsidiary" of the Company within the
4.3-20
meaning of Rule 1-02 under Regulation S-X promulgated by the
Commission.
"SNG Interest" means (1) an approximate 40% interest in
Superstar/Netlink Group L.L.C. and (2) Netlink USA's Temporary
Cash Investments.
"SNG-Netlink" means LMC Netlink, Inc., Westlink, Inc.
and Netlink USA (excluding, subject to the last paragraph of
Section 4.10, the D6/SMATV Interest).
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Debt of the Company or any
Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) that is subordinate or junior in right of payment to the Securities or
the applicable Subsidiary Guaranty pursuant to a written agreement to that
effect.
"Subsidiary" means, in respect of any Person, any corporation,
company (including any limited liability company), association, partnership,
joint venture or other business entity of which a majority of the total voting
power of the Voting Stock is at the time owned or controlled, directly or
indirectly, by: (a) such Person, (b) such Person and one or more Subsidiaries of
such Person, or (c) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Restricted Subsidiary of the
Company as of the Issue Date and any other Person that becomes a Subsidiary
Guarantor pursuant to Section 4.12 (except if such Restricted Subsidiary or
Person is a Non-Guarantor Subsidiary).
"Subsidiary Guaranty" means a Guarantee on the terms set forth
in this Indenture by a Subsidiary Guarantor of the Company's obligations with
respect to the Securities.
"Temporary Cash Investments" means any of the following: (a)
Investments in U.S. Government Obligations maturing within 365 days of the date
of acquisition thereof; (b) Investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company organized under the laws
of the United States of America or any state thereof having capital, surplus and
undivided profits aggregating in excess of $500 million and whose long-term debt
is rated "A-3" or "A-" or higher according to Xxxxx'x or S&P (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)); (c) repurchase
obligations with a term of not
4.3-21
more than 30 days for underlying securities of the types described in clause (a)
entered into with: (1) a bank meeting the qualifications described in clause (b)
above, or (2) any primary government securities dealer reporting to the Market
Reports Division of the Federal Reserve Bank of New York; (d) Investments in
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America with a rating at the
time as of which any Investment therein is made of "P-1" (or higher) according
to Xxxxx'x or "A-1" (or higher) according to S&P (or such similar equivalent
rating by at least one "nationally recognized statistical rating organization"
(as defined in Rule 436 under the Securities Act)); and (e) direct obligations
(or certificates representing an ownership interest in such obligations) of any
state of the United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of such state
(including any agency or instrumentality thereof) is pledged and which are not
callable or redeemable at the issuer's option, provided that: (1) the long-term
debt of such state is rated "A-3" or "A-" or higher according to Xxxxx'x or S&P
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)), and (2) such obligations mature within 180 days of the date of
acquisition thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that, in the event the TIA is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendments, the Trust Indenture Act of
1939 as so amended.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group of the trustee)
with direct responsibility for the administration of this Indenture 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.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means: (a) the Initial Unrestricted
Subsidiaries; (b) any Subsidiary of the Company that is designated after the
Issue Date as an Unrestricted Subsidiary as permitted or required pursuant to
Section 4.10 hereof and not thereafter redesignated as a Restricted Subsidiary
as permitted pursuant thereto; and (c) any Subsidiary of an Unrestricted
Subsidiary.
4.3-22
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of any Person means all classes of Capital
Stock or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means, at any time, a Restricted
Subsidiary all the Voting Stock of which (except directors' qualifying shares)
is at such time owned, directly or indirectly, by the Company and its other
Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction"............................... 4.08
"Allocable Excess Proceeds"........................... 4.06
"Bankruptcy Law"...................................... 6.01
"Change of Control Offer"............................. 4.11
"Change of Control Payment Date"...................... 4.11
"Change of Control Purchase Price".................... 4.11
"Claiming Guarantor".................................. 11.02
"Contributing Party".................................. 11.02
"covenant defeasance option".......................... 8.01
"Custodian"........................................... 6.01
"Events of Default"................................... 6.01
"Excess Proceeds"..................................... 4.06
"Exchange Security"................................... Appendix A
"Global Security"..................................... Appendix A
"legal defeasance option"............................. 8.01
"Legal Holiday"....................................... 13.08
"Notice of Default"................................... 6.01
"Obligations"......................................... 11.01
"Offer Amount"........................................ 4.06
"Offer Period"........................................ 4.06
"pay its Subsidiary Guaranty"......................... 12.03
"pay the Securities".................................. 10.03
"Paying Agent"........................................ 2.03
4.3-23
"Payment Blockage Notice"............................. 10.03
"Payment Blockage Period"............................. 10.03
"Permitted Debt"...................................... 4.03
"Prepayment Offer".................................... 4.06
"Purchase Date"....................................... 4.06
"Registered Exchange Offer............................ Appendix A
"Registrar"........................................... 2.03
"Shelf Registration Statement......................... Appendix A
"SNG-Netlink Option".................................. 4.10
"Surviving Person".................................... 5.01
"Suspended Covenants.................................. 4.14
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the
Subsidiary Guarantees.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Company, each
Subsidiary Guarantor and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
4.3-24
(5) words in the singular include the plural and words
in the plural include the singular;
(6) unsecured Debt shall not be deemed to be subordinate or
junior to secured Debt merely by virtue of its nature as unsecured
Debt;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock or
(ii) the maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. Provisions relating to the
Initial Securities and the Exchange Securities are set forth in Appendix A,
which is hereby incorporated in and expressly made part of this Indenture. The
Initial Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 1 to Appendix A which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is sub ject, if any, or usage, provided that any such
notation, legend or endorsement is in a form reasonably acceptable to the
Company. Each Security shall be dated the date of its authentication. The terms
of the Securities set forth in Exhibit 1 to Appendix A and Exhibit A are part of
the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
At any time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a written order of the Company in the
form of an Officers' Certificate for the authentication and delivery of such
Securities, and the
4.3-25
Trustee in accordance with such written order of the Company shall authenticate
and deliver such Securities.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Wholly Owned Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying
4.3-26
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that such
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.07. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.06, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.08. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the
4.3-27
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Securities and deliver them in exchange for temporary Securities.
SECTION 2.09. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
dispose of in its customary manner (subject to the record reten tion
requirements of the Exchange Act) all Securities surrendered for registration of
transfer, exchange, payment or cancelation and deliver a certificate of such
destruction to the Company unless the Company directs the Trustee to deliver
canceled Securities to the Company. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation.
SECTION 2.10. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that neither the Company nor the Trustee shall have
any responsibility for any defect in the "CUSIP" number that appears on any
Security, check, advice of payment or redemption notice, and any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee in the event of any change in the CUSIP numbers.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company
elects to redeem Securities pursuant to paragraph 5 of the
Securities, it shall notify the Trustee in writing of the
4.3-28
redemption date, the principal amount of Securities to be redeemed and that such
redemption is being made pursuant to paragraph 5 of the Securities.
The Company shall give each notice to the Trustee provided for
in this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities (including CUSIP
numbers) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(5) if fewer than all the outstanding Securities are to
be redeemed, the identification and principal amounts of the
particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date; and
4.3-29
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's written request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section at least 45 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date that is on or prior to
the date of redemption). Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Wholly Owned Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest (subject to the right of Holders of record on the relevant record date
to receive interest due on the related interest payment date that is on or prior
to the date of redemption) on all Securities to be redeemed on that date other
than Securities or portions of Securities called for redemption that have been
delivered by the Company to the Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture.
4.3-30
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the rate borne by the Securities to the extent
lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and provide the Trustee
and Holders of Securities with such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of the
Exchange Act and applicable to a U.S. corporation subject to such Sections, such
information, documents and reports to be so filed and provided at the times
specified for the filing of such information, documents and reports under such
Sections; provided, however, that the Company shall not be so obligated to file
such information, documents and reports with the Commission if the Commission
does not permit such filings. In addition, at such times as information is
delivered as required by the immediately preceding sentence, the Company shall
provide to the Trustee and the Holders of the Securities (i) the same line-item
financial information (excluding the ratio of earnings to fixed charges and the
line items from the statement of cash flows) on a consolidated basis (excluding
the Unrestricted Subsidiaries) with respect to the Company and its Restricted
Subsidiaries as set forth under the caption "Selected Historical Financial
Data--United Video Satellite Group, Inc." in the Offering Memorandum and (ii)
segment reporting information for its businesses. 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).
SECTION 4.03. Limitation on Debt. The Company shall not, and
shall not permit any Restricted Subsidiary to, Incur, directly or indirectly,
any Debt unless, after giving effect to the application of the proceeds thereof,
no Default or Event of Default would occur as a consequence of such Incurrence
or be continuing following such Incurrence and either:
(1) such Debt is Debt of the Company or a Subsidiary Guarantor and
after giving effect to the Incurrence of such Debt and the
application of the proceeds thereof, the Leverage Ratio of the
Company and the Restricted Subsidiaries (on a consolidated
basis) would not exceed 7.0 to 1, or
(2) such Debt is Permitted Debt.
The term "Permitted Debt" means: (a) Debt of the Company
evidenced by the Securities and of Subsidiary Guarantors evidenced by Subsidiary
Guaranties; (b) Debt of the Company or a Subsidiary Guarantor under the Credit
Facility, provided that the aggregate principal amount of all such Debt under
the Credit
4.3-31
Facility at any one time outstanding shall not exceed $600 million, which amount
shall be permanently reduced by the amount of Net Available Cash used to Repay
Debt under the Credit Facility, and not subsequently reinvested in Additional
Assets or used to purchase Securities or Repay other Debt, pursuant to Section
4.06 hereof; (c) Debt in respect of Capital Lease Obligations or Purchase Money
Debt of the Company or a Subsidiary Guarantor, provided that: (1) the aggregate
principal amount of such Debt does not exceed the Fair Market Value (on the date
of the Incurrence thereof) of the Property acquired, constructed or leased, and
(2) the aggregate principal amount of all Debt Incurred and then outstanding
pursuant to this clause (c) (together with all Permitted Refinancing Debt
Incurred and then outstanding in respect of Debt previously Incurred pursuant to
this clause (c)) does not exceed $75 million; (d) Debt of the Company owing to
and held by any Wholly Owned Subsidiary and Debt of a Restricted Subsidiary
owing to and held by the Company or any Wholly Owned Subsidiary; provided,
however, that any subsequent issue or transfer of Capital Stock or other event
that results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned
Subsidiary or any subsequent transfer of any such Debt (except to the Company or
a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Debt by the issuer thereof; (e) Debt under Interest Rate
Agreements and Currency Exchange Protection Agreements entered into by the
Company or a Restricted Subsidiary for the purpose of limiting risk in the
ordinary course of the financial management of the Company or such Restricted
Subsidiary and not for speculative purposes, provided that the obligations under
such agreements are directly related to payment obligations on Debt otherwise
permitted by the terms of this covenant; (f) Debt in connection with one or more
standby letters of credit or performance bonds issued by the Company or a
Restricted Subsidiary in the ordinary course of business or pursuant to
self-insurance obligations and not in connection with the borrowing of money or
the obtaining of advances or credit; (g) Debt of the Company or any Restricted
Subsidiary outstanding on the Issue Date not otherwise described in clauses (a)
through (f) above; (h) Debt of the Company or a Subsidiary Guarantor in an
aggregate principal amount outstanding at any one time not to exceed $150
million; and (i) Permitted Refinancing Debt Incurred in respect of Debt Incurred
pursuant to clause (1) of the first paragraph of this Section 4.03 and clauses
(a), (c) and (g) above.
Notwithstanding anything to the contrary contained in
this Section 4.03,
(a) the Company shall not, and shall not permit any Subsidiary
Guarantor to, Incur any Debt pursuant to this Section 4.03 if
the proceeds thereof are used, directly or indirectly, to
Refinance:
(1) any Subordinated Obligations unless such new Debt
shall be subordinated to the Securities or the
applicable Subsidiary Guaranty, as the case may be,
to at least the same extent as such Subordinated
Obligations, or
4.3-32
(2) any Senior Subordinated Debt unless such new Debt
shall be Senior Subordinated Debt or shall be
subordinated to the Securities or the applicable
Subsidiary Guaranty, as the case may be, and
(b) the Company shall not permit any Non-Guarantor Subsidiary to
Incur any Debt pursuant to this Section 4.03 if the proceeds
thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations or Senior Subordinated Debt of the
Company or any Subsidiary Guarantor.
SECTION 4.04. Limitation on Restricted Payments. The
Company shall not make, and shall not permit any Restricted
Subsidiary to make, directly or indirectly, any Restricted Payment
if at the time of, and after giving effect to, such proposed
Restricted Payment,
(a) a Default or Event of Default shall have occurred and
be continuing,
(b) the Company could not Incur at least $1.00 of additional Debt
pursuant to clause (1) of the first paragraph of Section 4.03,
or
(c) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made since the Issue Date (the
amount of any Restricted Payment, if made other than in cash,
to be based upon Fair Market Value) would exceed an amount
equal to the sum of:
(1) the result of:
(A) Cumulative EBITDA, minus
(B) the product of 1.5 and Cumulative Interest
Expense, plus
(2) Capital Stock Sale Proceeds (other than Capital Stock
Sale Proceeds used to make a Permitted Investment
pursuant to clause (i) of the definition thereof),
plus
(3) the sum of:
(A) the aggregate net cash proceeds received by
the Company or any Restricted Subsidiary
from the issuance or sale after the Issue
Date of convertible or exchangeable Debt
that has been converted into or exchanged
for Capital Stock (other than Disqualified
Stock) of the Company, and
(B) the aggregate amount by which Debt (other
than Subordinated Obligations) of the
Company or any Restricted Subsidiary is
reduced on the Company's consolidated
4.3-33
balance sheet on or after the Issue Date
upon the conversion or exchange of any Debt
issued or sold on or prior to the Issue Date
into Capital Stock (other than Disqualified
Stock) of the Company,
excluding, in the case of clause (A) or (B):
(x) any such Debt issued or sold to the
Company or a Subsidiary of the
Company or an employee stock
ownership plan or trust established
by the Company or any such
Subsidiary for the benefit of their
employees, and
(y) the aggregate amount of any cash or
other Property distributed by the
Company or any Restricted Subsidiary
upon any such conversion or
exchange,
plus
(4) an amount equal to the sum of:
(A) the net reduction in Investments in any
Person (other than the Company, a Restricted
Subsidiary or, with respect to any
Investment made on or prior to the Issue
Date, an Initial Unrestricted Subsidiary)
resulting from dividends, repayments of
loans or advances or other transfers of
Property, in each case to the Company or any
Restricted Subsidiary from such Person, plus
(B) the portion (proportionate to the Company's
equity interest in such Unrestricted
Subsidiary) of the Fair Market Value of the
net assets of an Unrestricted Subsidiary
(other than the Initial Unrestricted
Subsidiaries) at the time such Unrestricted
Subsidiary is designated a Restricted
Subsidiary; provided, however, that the
foregoing sum shall not exceed, in the case
of any Person, the amount of Investments
previously made (and treated as a Restricted
Payment) by the Company or any Restricted
Subsidiary in such Person.
Notwithstanding the foregoing limitation, the Company may:
(a) pay dividends on its Capital Stock within 60 days of the
declaration thereof if, on said declaration date, such
dividends could have been paid in compliance with this
Indenture; provided, however, that such dividend shall be
included in the calculation of the amount of Restricted
Payments;
4.3-34
(b) purchase, repurchase, redeem, legally defease, acquire
or retire for value Capital Stock of the Company or
Subordinated Obligations in exchange for, or out of the
proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified
Stock and other than Capital Stock issued or sold to a
Subsidiary of the Company or an employee stock
ownership plan or trust established by the Company or
any such Subsidiary for the benefit of their
employees); provided, however, that:
(1) such purchase, repurchase, redemption, legal
defeasance, acquisition or retirement shall be
excluded in the calculation of the amount of
Restricted Payments, and
(2) the Capital Stock Sale Proceeds from such exchange or
sale (i) shall be excluded from the calculation
pursuant to clause (c)(2) of the immediately
preceding paragraph and (ii) shall not be used to
make Investments pursuant to clause (i) of the
definition of Permitted Investments;
(c) purchase, repurchase, redeem, legally defease, acquire
or retire for value any Subordinated Obligations in
exchange for, or out of the proceeds of the
substantially concurrent sale of, Permitted Refinancing
Debt; provided, however, that such purchase,
repurchase, redemption, legal defeasance, acquisition
or retirement shall be excluded in the calculation of
the amount of Restricted Payments; and
(d) repurchase shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries
from current or former officers, directors or employees
of the Company or any of its Subsidiaries (or permitted
transferees of such current or former officers,
directors or employees), pursuant to the terms of
agreements (including employment agreements) or plans
(or amendments thereto) approved by the Board of
Directors under which such individuals purchase or
sell, or are granted the option to purchase or sell,
shares of such common stock; provided, however, that:
(1) the aggregate amount of such repurchases shall not
exceed $3 million in any calendar year, and
(2) at the time of such repurchase, no other Default or
Event of Default shall have occurred and be
continuing (or result therefrom);
provided further, however, that such repurchases shall be
included in the calculation of the amount of Restricted
Payments.
SECTION 4.05. Limitation on Liens. The Company shall
not, and shall not permit any Restricted Subsidiary to, directly
4.3-35
or indirectly, Incur or suffer to exist, any Lien (other than Permitted Liens or
Liens securing Senior Debt) upon any of its Property (including Capital Stock of
a Restricted Subsidiary), whether owned at the Issue Date or thereafter
acquired, or any interest therein or any income or profits therefrom, unless:
(a) if such Lien secures Senior Subordinated Debt, the Securities
or the applicable Subsidiary Guaranty are secured on an equal
and ratable basis with such Debt, and
(b) if such Lien secures Subordinated Obligations, such Lien shall
be subordinated to a Lien securing the Securities or the
applicable Subsidiary Guaranty in the same Property as that
securing such Lien to the same extent as such Subordinated
Obligations are subordinated to the Securities and the
Subsidiary Guaranties.
SECTION 4.06. Limitation on Asset Sales. (a) The
Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Sale unless:
(1) after giving effect to such Asset Sale, no Default or Event of
Default would occur as a result thereof;
(2) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to
the Fair Market Value of the Property subject to such Asset
Sale;
(3) at least 75% of the consideration paid to the Company
or such Restricted Subsidiary in connection with such
Asset Sale is in the form of (A) cash or cash
equivalents, (B) notes, obligations or other securities
(debt or equity) that are converted by the Company or
such Restricted Subsidiary into cash within 90 days of
the date of such Asset Sale, (C) Additional Assets, (D)
the assumption of Priority Debt (as a result of which
the Company and the Restricted Subsidiaries are no
longer liable with respect to such Priority Debt) or
(E) any combination of the foregoing; and
(4) the Company delivers an Officers' Certificate to the Trustee
certifying that such Asset Sale complies with the foregoing
clauses (1), (2) and (3).
(b) The Net Available Cash (or any portion thereof) from Asset Sales
may be applied by the Company or a Restricted Subsidiary, to the extent the
Company or such Restricted Subsidiary elects (or is required by the terms of any
Debt):
(1) to Repay Priority Debt; or
(2) to reinvest in Additional Assets (including by means of
an Investment in Additional Assets by a Restricted
4.3-36
Subsidiary with Net Available Cash received by the Company or
another Restricted Subsidiary).
Pending final application of any such Net Available Cash, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Available Cash in any Temporary Cash Investments that are not prohibited by this
Indenture.
(c) Any Net Available Cash from an Asset Sale not applied in accordance
with Section 4.06(b) within 18 months from the date of the receipt of such Net
Available Cash shall constitute "Excess Proceeds". When the aggregate amount of
Excess Proceeds exceeds $20 million (taking into account income earned on such
Excess Proceeds, if any), the Company will be required to make an offer to
purchase (the "Prepayment Offer") the Securities which offer shall be in the
amount of the Allocable Excess Proceeds, on a pro rata basis according to
principal amount, at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the purchase date (subject
to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date), in accordance with the
procedures (including prorating in the event of oversubscription) set forth
below. To the extent that any portion of the amount of Net Available Cash
remains after compliance with the preceding sentence and provided that all
holders of Securities have been given the opportunity to tender their Securities
for purchase in accordance with this Section 4.06, the Company or such
Restricted Subsidiary may use such remaining amount for any purpose permitted by
this Indenture and the amount of Excess Proceeds will be reset to zero.
The term "Allocable Excess Proceeds" means the product of:
(a) the Excess Proceeds, and
(b) a fraction,
(1) the numerator of which is the aggregate principal
amount of the Securities outstanding on the date
of the Prepayment Offer, and
(2) the denominator of which is the sum of the aggregate
principal amount of the Securities outstanding on the
date of the Prepayment Offer and the aggregate
principal amount of other Debt of the Company
outstanding on the date of the Prepayment Offer that
is pari passu in right of payment with the Securities
and subject to terms and conditions in respect of
Asset Sales similar in all material respects to this
Section 4.06 and requiring the Company to make an
offer to purchase such Debt at substantially the same
time as the Prepayment Offer.
(d)(1) Within five business days after the Company is
obligated to make a Prepayment Offer as described in this
4.3-37
Section 4.06, the Company shall send a written notice, by first-class mail, to
the holders of Securities, accompanied by such information regarding the Company
and its Subsidiaries as the Company in good faith believes will enable such
holders to make an informed decision with respect to such Prepayment Offer. Such
notice shall state, among other things, the purchase price and the purchase
date, which shall be, subject to any contrary requirements of applicable law, a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed (the "Purchase Date").
(2) Not later than the date upon which written notice of a Prepayment
Offer is delivered to the Trustee as provided above, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Prepayment
Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from
the Asset Sales pursuant to which such Prepayment Offer is being made and (iii)
the compliance of such allocation with the provisions of Section 4.06(b). On or
before the Purchase Date, the Company shall also irrevocably deposit with the
Trustee or with the Paying Agent (or, if the Company or a Wholly Owned
Subsidiary is the Paying Agent, shall segregate and hold in trust) in cash an
amount equal to the Offer Amount to be held for payment in accordance with the
provisions of this Section. Upon the expiration of the period for which the
Prepayment Offer remains open (the "Offer Period"), the Company shall deliver to
the Trustee for cancelation the Securities or portions thereof that have been
properly tendered to and are to be accepted by the Company. The Trustee or the
Paying Agent shall, on the Purchase Date, mail or deliver payment to each
tendering Holder in the amount of the purchase price. In the event that the
aggregate purchase price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount, the Trustee or the Paying Agent shall
deliver the excess to the Company immediately after the expiration of the Offer
Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the Company
or its agent at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security that was
delivered for purchase by the Holder and a statement that such Xxxxxx is
withdrawing its election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered by
Holders exceeds the Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
4.3-38
(4) At the time the Company delivers Securities to the Trustee that are
to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.06. A Security
shall be deemed to have been accepted for purchase at the time the Trustee or
the Paying Agent mails or delivers payment therefor to the surrender ing Holder.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to the
covenant described hereunder. To the extent that the provisions of any
securities laws or regulations conflict with provisions of the covenant
described hereunder, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under
the covenant described hereunder by virtue thereof.
SECTION 4.07. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist any consensual restriction on the right of any Restricted
Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, or pay
any Debt or other obligation owed, to the Company or any other
Restricted Subsidiary,
(b) make any loans or advances to the Company or any other
Restricted Subsidiary or
(c) transfer any of its Property to the Company or any
other Restricted Subsidiary.
The foregoing limitations will not apply:
(1) with respect to clause (a), (b) or (c), to
restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted Subsidiary
and existing at the time it became a
Restricted Subsidiary if such restriction
was not created in connection with or in
anticipation of the transaction or series of
transactions pursuant to which such
Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company,
(C) that result from the Refinancing of Debt
Incurred pursuant to an agreement referred
to in clause (1)(A) or (B) above or in
4.3-39
clause (2)(A) or (B) below, provided such
restriction is no less favorable to the
holders of Securities than those under the
agreement evidencing the Debt so Refinanced,
or
(D) in the form of supermajority voting, veto or
similar rights held by a Permitted
Interactive Partner in any joint venture or
other Person formed with respect to the
intellectual property used or usable in the
Company's TV Guide Interactive business, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be
Incurred and secured without also securing
the Securities or the applicable Subsidiary
Guaranty pursuant to Sections 4.03 and 4.05
that limit the right of the debtor to
dispose of the Property securing such Debt,
(B) encumbering Property at the time such
Property was acquired by the Company or any
Restricted Subsidiary, so long as such
restriction relates solely to the Property
so acquired and was not created in
connection with or in anticipation of such
acquisition,
(C) resulting from customary provisions
restricting subletting or assignment of
leases or customary provisions in other
agreements that restrict assignment of such
agreements or rights thereunder, or
(D) customary restrictions contained in asset
sale agreements limiting the transfer of
such Property pending the closing of such
sale.
SECTION 4.08. Limitation on Transactions with Affiliates. The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, conduct any business or enter into or suffer to exist any
transaction or series of transactions (including the purchase, sale, transfer,
assignment, lease, conveyance or exchange of any Property or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction"), unless:
(a) the terms of such Affiliate Transaction are no less favorable
to the Company or such Restricted Subsidiary, as the case may
be, than those that could be obtained in a comparable
arm's-length transaction with a Person that is not an
Affiliate of the Company,
4.3-40
(b) if such Affiliate Transaction involves aggregate
payments or value in excess of $20 million, the Board
of Directors (including a majority of the disinterested
members of the Board of Directors) approves such
Affiliate Transaction and, in its good faith judgment,
believes that such Affiliate Transaction complies with
clause (a) above as evidenced by a Board Resolution
promptly delivered to the Trustee, and
(c) if such Affiliate Transaction involves aggregate payments or
value in excess of $40 million, the Company obtains a written
opinion from an Independent Financial Advisor to the effect
that the consideration to be paid or received in connection
with such Affiliate Transaction is fair, from a financial
point of view, to the Company and the Restricted Subsidiaries.
Notwithstanding the foregoing limitation, the Company or any
Restricted Subsidiary may enter into or suffer to exist the following:
(a) any transaction or series of transactions between the
Company and one or more Restricted Subsidiaries or
between two or more Restricted Subsidiaries in the
ordinary course of business, provided that no more than
5% of the total voting power of the Voting Stock (on a
fully diluted basis) of any such Restricted Subsidiary
is owned by an Affiliate of the Company (other than a
Restricted Subsidiary);
(b) any Restricted Payment permitted to be made pursuant to
Section 4.04 hereof or any Permitted Investment;
(c) the payment of compensation (including amounts paid
pursuant to employee benefit plans) for the personal
services of officers, directors and employees of the
Company or any of the Restricted Subsidiaries, so long
as the Board of Directors in good faith shall have
approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such
compensation to be fair consideration therefor;
(d) loans and advances to employees made in the ordinary course of
business and consistent with the past practices of the Company
or such Restricted Subsidiary, as the case may be, provided
that such loans and advances do not exceed $3 million in the
aggregate at any one time outstanding;
(e) any agreement between the Company or any Restricted Subsidiary
on the one hand and a Permitted Holder on the other relating
to the provision of products or services in the ordinary
course of business, provided that such agreement satisfies the
condition set forth in clause (a) of the preceding paragraph;
and
4.3-41
(f) any transaction or series of transactions pursuant to
any agreement in existence on the Issue Date or any
agreement contemplated as part of or in connection with
the TV Guide Acquisition (as defined in the Offering
Memorandum) (which contemplated agreements are
described under "Certain Relationships and Related
Transactions" in the Offering Memorandum) and, in
either case, any renewal, extension or replacement of
any such agreement on terms no less favorable to the
Company and the Restricted Subsidiaries than the
original agreement.
In addition to the foregoing, the Company shall cause the IP
Subsidiary to maintain the IP Agreements in full force and effect and to comply
with the terms thereof in all material respects (except with respect to any IP
Agreement the counterparty to which is no longer the Company or a Restricted
Subsidiary), provided that the foregoing covenant shall be satisfied if,
following a transfer of all or substantially all the assets of the IP Subsidiary
or a change of control of the IP Subsidiary (whether by merger, consolidation,
stock purchase or otherwise) in connection with which the transferee, successor
or survivor Person assumes the IP Subsidiary's obligations under the IP
Agreements, the Company and the Restricted Subsidiaries take all actions
reasonably necessary to enforce such assumption of obligations against such
Person.
SECTION 4.09. Limitation on Layered Debt. The Company shall
not, and shall not permit any Subsidiary Guarantor to, Incur, directly or
indirectly, any Debt that is subordinate or junior in right of payment to any
Senior Debt unless such Debt is Senior Subordinated Debt or is expressly
subordinated in right of payment to Senior Subordinated Debt. In addition, no
Subsidiary Guarantor shall Guarantee, directly or indirectly, any Debt of the
Company that is subordinate or junior in right of payment to any Senior Debt
unless such Guarantee is expressly subordinate in right of payment to, or ranks
pari passu with, the Subsidiary Guaranty of such Subsidiary Guarantor.
SECTION 4.10. Designation of Subsidiaries. The Board
of Directors may designate any Subsidiary of the Company to be an
Unrestricted Subsidiary or Non-Guarantor Subsidiary if:
(a) the Subsidiary to be so designated does not own any Capital
Stock or Debt of, or own or hold any Lien on any Property of,
the Company or any other Restricted Subsidiary,
(b) no Default or Event of Default shall have occurred and
be continuing or would result therefrom,
(c) in the case of Unrestricted Subsidiaries, the Company would be
permitted to make an Investment at the time of such
designation in an amount equal to the portion (proportionate
to the Company's equity interest in such Subsidiary) of the
Fair Market Value of the net assets of such Subsidiary at such
time, and
4.3-42
(d) in the case of Non-Guarantor Subsidiaries, the
Subsidiary to be so designated is not a Wholly Owned
Subsidiary.
Unless so designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted Subsidiary;
provided, however, that such Subsidiary shall not be designated a Restricted
Subsidiary and shall be automatically designated as an Unrestricted Subsidiary
if either of the requirements set forth in clauses (x) and (y) of the third
immediately following paragraph will not be satisfied after giving pro forma
effect to such designation or if such Person is a Subsidiary of an Unrestricted
Subsidiary.
Except as provided in the preceding paragraph, no Restricted
Subsidiary may be designated as an Unrestricted Subsidiary or Non-Guarantor
Subsidiary. In addition, neither the Company nor any Restricted Subsidiary shall
at any time be directly or indirectly liable for any Debt that provides that the
holder thereof may (with the passage of time or notice or both) declare a
default thereon or cause the payment thereof to be accelerated or payable prior
to its Stated Maturity upon the occurrence of a default with respect to any
Debt, Lien or other obligation of any Unrestricted Subsidiary or Non-Guarantor
Subsidiary (including any right to take enforcement action against such
Unrestricted Subsidiary or Non-Guarantor Subsidiary).
Upon designation of a Restricted Subsidiary as an Unrestricted
Subsidiary or Non-Guarantor Subsidiary in compliance with this Section 4.10,
such Restricted Subsidiary shall, by execution and delivery of a supplemental
indenture in form satisfactory to the Trustee, be released from any Subsidiary
Guaranty previously made by such Restricted Subsidiary.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma
effect to such designation,
(x) the Company could Incur at least $1.00 of additional
Debt pursuant to clause (1) of the first paragraph of
Section 4.03 hereof, and
(y) no Default or Event of Default shall have occurred
and be continuing or would result therefrom.
The Board of Directors may designate any Non-Guarantor Subsidiary to be a
Subsidiary Guarantor if concurrently with such designation, such Subsidiary
executes and delivers to the Trustee a Subsidiary Guaranty.
Any such designation or redesignation will be evidenced to the
Trustee by filing with the Trustee a Board Resolution giving effect to such
designation or redesignation and an Officers' Certificate that:
(a) certifies that such designation or redesignation
complies with the foregoing provisions, and
4.3-43
(b) gives the effective date of such designation or
redesignation, such filing with the Trustee to occur
within 45 days after the end of the fiscal quarter of
the Company in which such designation or redesignation
is made (or, in the case of a designation or
redesignation made during the last fiscal quarter of
the Company's fiscal year, within 90 days after the end
of such fiscal year).
The Company may, at its option (the "SNG-Netlink Option"),
designate SNG-Netlink as an Initial Unrestricted Subsidiary by delivering an
Officers' Certificate to such effect to the Trustee by no later than the 120th
day following the Issue Date. Upon such designation, the Company may contribute
SNG- Netlink to another Initial Unrestricted Subsidiary, and SNG- Netlink will
be treated, for all purposes of this Indenture, as if it had been an Initial
Unrestricted Subsidiary owned by such other Initial Unrestricted Subsidiary
since the Issue Date, and such contribution shall not be subject to any of the
provisions of this Indenture. In the event of such designation, all transactions
and actions taken with respect to SNG-Netlink since the Issue Date shall have
complied with the provisions of this Indenture, including Section 4.08, as if
SNG-Netlink had been an Initial Unrestricted Subsidiary since the Issue Date.
Such designation and contribution will not be subject to the requirements set
forth in this Section 4.10, and the making of such designation and contribution
will not be considered an Investment for purposes of Section 4.04 or an Asset
Sale for purposes of Section 4.06. The Company may, at its option, terminate its
SNG-Netlink Option at any time by delivering an Officers' Certificate to such
effect to the Trustee. Until the earlier of such termination or the 120th day
following the Issue Date, the net income (loss) of SNG- Netlink shall be
excluded from Consolidated Net Income, provided that upon such termination or
120th day, such net income (loss) shall be included (or excluded) in
Consolidated Net Income as if SNG-Netlink had been a Restricted Subsidiary since
the Issue Date, provided further that upon the designation of SNG-Netlink as an
Initial Unrestricted Subsidiary, such net income (loss) shall be included or
excluded in Consolidated Net Income as if SNG-Netlink had been an Initial
Unrestricted Subsidiary since the Issue Date. Except as otherwise provided in
this paragraph, SNG-Netlink shall be considered for all purposes of this
Indenture as a Restricted Subsidiary. Upon designation as an Initial
Unrestricted Subsidiary in compliance with this paragraph, SNG-Netlink shall, by
execution and delivery of a supplemental indenture in form satisfactory to the
Trustee, be released from the Subsidiary Guaranty previously made by
SNG-Netlink.
If, at the time the SNG-Netlink Option is exercised, the
assets of Netlink USA consist of assets other than the SNG Interest and any de
minimis assets, the SNG-Netlink Option shall only be exercisable if Telluride,
Inc., the other partner in Netlink USA, is also designated as an Unrestricted
Subsidiary at such time in accordance with the other paragraphs of this Section
4.10. For purposes of determining the amount of the Investment deemed to be made
upon such designation, the assets of Telluride, Inc. shall be deemed to consist
of the D6/SMATV
4.3-44
Interest. If, immediately following such designation, the Company contributes
Telluride, Inc. to an Initial Unrestricted Subsidiary, the separate Investments
represented by such contribution and designation will be considered together as
only one Investment for purposes of calculations under this Indenture.
SECTION 4.11. Change of Control. Upon the occurrence of a
Change of Control, each Holder of Securities shall have the right to require the
Company to repurchase all or any part of such Xxxxxx's Securities pursuant to
the offer described below (the "Change of Control Offer") at a purchase price
(the "Change of Control Purchase Price") equal to 101.0% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the purchase date (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date).
Within 30 days following any Change of Control, the Company
shall:
(a) cause a notice of the Change of Control Offer to be sent at
least once to the Dow Xxxxx News Service or similar business
news service in the United States and
(b) send, by first-class mail, with a copy to the Trustee, to each
Holder of Securities, at such Xxxxxx's address appearing in
the Security Register, a notice stating:
(1) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section
4.11 and that all Securities timely tendered will be
accepted for payment;
(2) the Change of Control Purchase Price and the purchase
date, which shall be, subject to any contrary
requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days from the
date such notice is mailed (the "Change of Control
Payment Date");
(3) that any Security (or portion thereof) accepted for
payment (and duly paid on the Change of Control
Payment Date) pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of
Control Payment Date;
(4) that any Security (or portions thereof) not properly
tendered will continue to accrue interest;
(5) the circumstances and relevant facts regarding the
Change of Control (including information with respect
to pro forma historical income, cash flow and
capitalization after giving effect to the Change of
Control); and
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(6) the procedures that Holders of Securities must follow
in order to tender their Securities (or portions
thereof) for payment and the procedures that Holders
of Securities must follow in order to withdraw an
election to tender Securities (or portions thereof)
for payment.
Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company or its agent at the address specified in the notice at least three
Business Days prior to the Change of Control Payment Date. Holders shall be
entitled to withdraw their election if the Trustee or the Company receives not
later than one Business Day prior to the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security that was delivered for purchase by
the Holder and a statement that such Xxxxxx is withdrawing its election to have
such Security purchased.
On or prior to the Change of Control Payment Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent (or, if the
Company or any of its Wholly Owned Subsidiaries is acting as the Paying Agent,
segregate and hold in trust) in cash an amount equal to the Change of Control
Purchase Price payable to the Holders entitled thereto, to be held for payment
in accordance with the provisions of this Section 4.11. On the Change of Control
Payment Date, the Company shall deliver to the Trustee the Securities or
portions thereof that have been properly tendered to and are to be accepted by
the Company for payment. The Trustee or the Paying Agent shall, on the Change of
Control Payment Date, mail or deliver payment to each tendering Holder of the
Change of Control Purchase Price. In the event that the aggregate Change of
Control Purchase Price is less than the amount delivered by the Company to the
Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may
be, shall deliver the excess to the Company immediately after the Change of
Control Payment Date.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the purchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.12. Future Subsidiary Guarantors. The Company shall
cause each Person that becomes a Restricted Subsidiary following the Issue Date
to become a Subsidiary Guarantor by causing such Person to execute and deliver
to the Trustee a Supplemental Indenture as provided in Section 11.06 at the time
such Person becomes a Restricted Subsidiary (unless such Person is a
Non-Guarantor Subsidiary).
4.3-46
SECTION 4.13. Maintenance of Non-Investment Company Status.
The Company shall not at any time be or become an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended, or any successor law, rule or regulation.
SECTION 4.14. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company and the Subsidiary Guarantors also shall
comply with TIA ss. 314(a)(4).
SECTION 4.15. Covenant Suspension. During any period
of time that:
(a) the Securities have Investment Grade Ratings from both
Rating Agencies, and
(b) no Default or Event of Default has occurred and is
continuing under this Indenture,
the Company and the Restricted Subsidiaries will not be subject to the covenants
contained in Sections 4.03, 4.04, 4.06, 4.07, 4.08, 5.01(a)(5) and 5.02(a)(5),
and clause (x) of the fourth paragraph (and such clause (x) as referred to in
the first paragraph) of Section 4.10 (collectively, the "Suspended Covenants").
If the Company and the Restricted Subsidiaries are not subject to the Suspended
Covenants for any period of time as a result of the preceding sentence and,
subsequently, one or both of the Rating Agencies withdraws its ratings or
downgrades the ratings assigned to the Securities below the required Investment
Grade Ratings or a Default or Event of Default occurs and is continuing, then
the Company and the Restricted Subsidiaries will thereafter again be subject to
the Suspended Covenants and compliance with the Suspended Covenants with respect
to Restricted Payments made after the time of such withdrawal, downgrade,
Default or Event of Default will be calculated in accordance with the terms of
Section 4.04 as though Section 4.04 had been in effect during the entire period
of time from the Issue Date.
Notwithstanding the foregoing, any actions relating to the
consummation of obligations Incurred prior to such withdrawal, downgrade,
Default or Event of Default shall not constitute a breach of any covenant set
forth in this Indenture or cause a Default or Event of Default thereunder,
provided that:
(1) the Company and the Restricted Subsidiaries did not Incur such
obligations in anticipation of a withdrawal or downgrade of
the Securities below an Investment Grade Rating or a Default
or Event of Default, and
4.3-47
(2) the Company reasonably believed in good faith at the time of
such Incurrence that such Incurrence or related actions would
not result in such a withdrawal, downgrade, Default or Event
of Default.
For purposes of clauses (1) and (2) in the preceding sentence, anticipation and
reasonable belief may be determined by the Company and conclusively evidenced by
a Board Resolution to such effect adopted in good faith by the Board of
Directors of the Company delivered to the Trustee. In reaching their
determination, the Board of Directors may, but need not, consult with the Rating
Agencies.
SECTION 4.16. Further Instruments and Acts. Upon request of
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. (a)
The Company shall not merge, consolidate or amalgamate with or into any other
Person (other than a merger of a Wholly Owned Subsidiary into the Company) or
sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all its Property in any one transaction or series of transactions
unless:
(1) the Company shall be the surviving Person (the
"Surviving Person") or the Surviving Person (if other
than the Company) formed by such merger, consolidation
or amalgamation or to which such sale, transfer,
assignment, lease, conveyance or disposition is made
shall be a corporation or limited liability company
organized and existing under the laws of the United
States of America, any State thereof or the District of
Columbia;
(2) the Surviving Person (if other than the Company)
expressly assumes, by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to
the Trustee by such Surviving Person, the due and
punctual payment of the principal of, and premium, if
any, and interest on, all the Securities, according to
their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this
Indenture to be performed by the Company;
(3) in the case of a sale, transfer, assignment, lease, conveyance
or other disposition of all or substantially all the Property
of the Company, such Property shall have been transferred as
an entirety or virtually as an entirety to one Person;
4.3-48
(4) immediately before and after giving effect to such
transaction or series of transactions on a pro forma
basis (and, for purposes of this clause (4) and clause
(5) below, (A) treating any Debt that becomes, or is
anticipated to become, an obligation of the Surviving
Person or any Restricted Subsidiary as a result of such
transaction or series of transactions as having been
Incurred by the Surviving Person or such Restricted
Subsidiary at the time of such transaction or series of
transactions and (B) giving pro forma effect to the
Repayment of any Debt in connection with such
transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing;
(5) immediately after giving effect to such transaction or
series of transactions and to the Repayment of any Debt
in connection with such transaction or series of
transactions on a pro forma basis, the Company or the
Surviving Person, as the case may be, would be able to
Incur at least $1.00 of additional Debt under clause
(1) of the first paragraph of Section 4.03 hereof; and
(6) 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
transaction and the supplemental indenture, if any, in
respect thereto comply with this Section 5.01(a) and
that all conditions precedent herein provided for
relating to such transaction have been satisfied.
The foregoing provisions (other than clause (4)) shall not apply to any
transactions which constitute an Asset Sale if the Company has complied with
Section 4.06.
(b) The Surviving Person shall succeed to, and be substituted
for, and may exercise every right and power of the Company under this Indenture,
but the predecessor Company in the case of:
(1) a sale, transfer, assignment, conveyance or other disposition
(unless such sale, transfer, assignment, conveyance or other
disposition is of all the assets of the Company as an entirety
or virtually as an entirety), or
(2) a lease,
shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Securities.
SECTION 5.02. When a Subsidiary Guarantor May Merge or
Transfer Assets. (a) The Company shall not permit any Subsidiary Guarantor to
merge, consolidate or amalgamate with or into any other Person (other than a
merger of a Wholly Owned Subsidiary into such Subsidiary Guarantor) or sell,
transfer, assign, lease,
4.3-49
convey or otherwise dispose of all or substantially all its
Property in any one transaction or series of transactions unless:
(1) the Surviving Person (if not such Subsidiary Guarantor)
formed by such merger, consolidation or amalgamation or
to which such sale, transfer, assignment, lease,
conveyance or disposition is made shall be a
corporation or limited liability company organized and
existing under the laws of the United States of
America, any State thereof or the District of Columbia;
(2) the Surviving Person (if other than such Subsidiary
Guarantor) expressly assumes, by Subsidiary Guaranty in
form satisfactory to the Trustee, executed and
delivered to the Trustee by such Surviving Person, the
due and punctual performance and observance of all the
obligations of such Subsidiary Guarantor under its
Subsidiary Guaranty;
(3) in the case of a sale, transfer, assignment, lease, conveyance
or other disposition of all or substantially all the Property
of such Subsidiary Guarantor, such Property shall have been
transferred as an entirety or virtually as an entirety to one
Person;
(4) immediately before and after giving effect to such
transaction or series of transactions on a pro forma
basis (and , for purposes of this clause (4) and clause
(5) below, (A) treating any Debt that becomes, or is
anticipated to become, an obligation of the Surviving
Person, the Company or any Restricted Subsidiary as a
result of such transaction or series of transactions as
having been Incurred by the Surviving Person, the
Company or such Restricted Subsidiary at the time of
such transaction or series of transactions and
(B) giving pro forma effect to the Repayment of any
Debt in connection with such transaction or series of
transactions), no Default or Event of Default shall
have occurred and be continuing;
(5) immediately after giving effect to such transaction or
series of transactions and to the Repayment of any Debt
in connection with such transaction or series of
transactions on a pro forma basis, the Company would be
able to Incur at least $1.00 of additional Debt under
clause (1) of the first paragraph of Section 4.03
hereof; and
(6) 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
transaction and such Subsidiary Guaranty, if any, in
respect thereto comply with this Section 5.02(a) and
that all conditions precedent herein provided for
relating to such transaction have been satisfied.
4.3-50
The foregoing provisions (other than clause (4)) shall not apply to any
transactions which constitute an Asset Sale if the Company has complied with
Section 4.06.
(b) The Surviving Person shall succeed to, and be substituted for, and
may exercise every right and power of a Subsidiary Guarantor under the
Subsidiary Guaranty.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. The following events
shall be "Events of Default":
(1) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohibited by Article X, and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of,
or premium, if any, on any Security when the same becomes due and
payable at its Stated Maturity, upon acceleration, redemption, optional
redemption, required repurchase or otherwise, whether or not such
payment shall be prohibited by Article X;
(3) the Company or any Subsidiary Guarantor fails to
comply with Article V;
(4) the Company fails to comply with any covenant or agreement
in the Securities or in this Indenture (other than a failure that is
the subject of the foregoing clause (1), (2) or (3)) and such failure
continues for 30 days after written notice is given to the Company as
specified below;
(5) a default by the Company or any Restricted Subsidiary
under any Debt which results in acceleration of the maturity of such
Debt, or the failure to pay any such Debt at maturity, in an aggregate
amount in excess of $10 million or its foreign currency equivalent at
the time;
(6) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
4.3-51
or takes any comparable action under any foreign laws
relating to insolvency;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of
its property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary; or
(D) grants any similar relief under any foreign
laws;
and in each such case the order or decree remains unstayed
and in effect for 30 days;
(8) any judgment or judgments for the payment of money in an
aggregate amount in excess of $10 million or its foreign currency
equivalent at the time is entered against the Company or any Restricted
Subsidiary and shall not be waived, satisfied or discharged for any
period of 30 consecutive days during which a stay of enforcement shall
not be in effect; or
(9) any Subsidiary Guaranty ceases to be in full force and
effect (other than in accordance with the terms of this Indenture and
such Subsidiary Guaranty) or any Subsidiary Guarantor denies or
disaffirms its obligations under its Subsidiary Guaranty.
The foregoing will constitute Events of Default what ever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding notify the Company (and in the case of such notice
by Holders, the Trustee) of the Default and the Company does not cure such
Default within the time specified after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default".
4.3-52
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default and any event that with the giving of notice or the
lapse of time would become an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(6) or (7) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding by notice to the Company and the Trustee, may declare the principal
of and accrued and unpaid interest on all the Securities to be due and payable.
Upon such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(6) or (7) with
respect to the Company occurs, the principal of and accrued and unpaid interest
on all the Securities shall, automatically and without any action by the Trustee
or any Holder, become and be immediately due and payable. The Holders of a
majority in aggregate principal amount of the outstanding Securities by notice
to the Trustee and the Company may rescind any declaration of acceleration if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee may waive an existing Default and its consequences except
(i) a Default in the payment of the principal of or interest on a Security or
(ii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a
majority in aggregate principal amount of the Securities then
4.3-53
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee with respect to the Securities. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to reasonable
indemnification against all losses and expenses caused by taking or not taking
such action.
SECTION 6.06. Limitation on Suits. A Securityholder
may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Securities then outstanding shall have made a written request,
and such Holder of or Holders shall have offered reasonable indemnity,
to the Trustee to pursue such proceeding as trustee; and
(3) the Trustee has failed to institute such proceeding and
has not received from the Holders of at least a majority in aggregate
principal amount of the Securities outstanding a direction inconsistent
with such request, within 60 days after such notice, request and offer.
The foregoing limitations on the pursuit of remedies by a
Securityholder shall not apply to a suit instituted by a Holder of Securities
for the enforcement of payment of the principal of or interest on such Security
on or after the applicable due date specified in such Security. A Securityholder
may not use this Indenture to prejudice the rights of another Securityholder or
to obtain a preference or priority over another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
54
SECTION 6.09. Trustee May File Proofs of Claim. The
---------------------------------
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by
each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article VI, it shall pay out
the money or property in the following order:
FIRST: to the Trustee for amounts due under Section
7.07;
SECOND: to holders of Senior Debt to the extent
required by Article X or XII;
THIRD: to Securityholders for amounts due and unpaid
on the Securities for principal and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and
interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in aggregate principal amount of the
Securities.
4.3-55
SECTION 6.12. Waiver of Stay or Extension Laws. The
---------------------------------
Company (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, that 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
shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Xxxxxx's own affairs.
(b) 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.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
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(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on
any money received by it.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(h) 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 and to the provisions of the TIA and
the provisions of this Article VII shall apply to the Trustee in its role as
Registrar, Paying Agent and Security Custodian.
(i) The Trustee shall not be deemed to have notice of a
Default or an Event of Default unless (a) a Trust Officer of the Trustee has
received written notice thereof from the Company, a Subsidiary Guarantor or any
Holder or (b) a Trust Officer shall have actual knowledge thereof.
SECTION 7.02. Rights of Trustee. (a) The Trustee may conclusively rely
on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document. The Trustee may, however, in its discretion make
such further inquiry or investigation into such facts or matters as it may see
fit and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the expense of the Company
and shall incur no liability of any kind by reason of such inquiry or
investigation.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents, attorneys or
custodians and shall not be responsible for the misconduct or negligence of any
agent, attorney or custodian appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
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(e) The Trustee may consult with counsel of its own selection,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it here under in good faith and in accordance with the advice or opinion of such
counsel.
(f) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity, priority or
adequacy of this Indenture or the Secur ities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company or any Subsidiary Guarantor in this
Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if it is actually known to a Trust Officer
of the Trustee, the Trustee shall mail to each Securityholder notice of the
Default or Event of Default within 90 days after it is known to a Trust Officer
or written notice of it is received by the Trustee. Except in the case of a
Default or Event of Default in payment of principal of or interest on any
Security, the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each December 31 beginning with December 31, 1999, and in any
event prior to March 31 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of December 31 each year that complies
with TIA ss. 313(a), if and to the extent required by such subsection. The
Trustee shall also comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
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SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time such compensation as shall be agreed upon
from time to time in writing for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company and each Subsidiary Guarantor
shall jointly and severally fully indemnify the Trustee against any and all
loss, liability, claim, damage or expense (including reasonable attorneys' fees
and expenses and taxes other than taxes based upon the income of the Trustee)
incurred by it in connection with the acceptance and administration of this
trust and the performance of its duties hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company or any Subsidiary
Guarantor of its obligations hereunder. The Company shall defend the claim and
the Trustee may have separate counsel and the Company and the Subsidiary
Guarantors, as applicable, shall pay the fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee's own wilful misconduct
or negligence. The Company need not pay for any settlement made by the Trustee
without the Company's consent, such consent not to be unreasonably withheld. All
indemnifications and releases from liability granted hereunder to the Trustee
shall extend to its officers, directors, employees, agents, attorneys,
custodians, successors and assigns.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the resignation or removal of the Trustee and the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(6) or (7) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in aggregate
principal amount of the Securities then outstanding may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
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(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in aggregate principal amount of the Securities then
outstanding and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in aggregate principal amount of the Securities then outstanding
may petition at the expense of the Company any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder who has been a bona fide Holder of a Security for at least six
months may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Xxxxxx. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any such successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to
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the Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
(or, in the case of a corporation included in a bank holding company system, the
related bank holding company shall have) a combined capital and surplus of at
least $50,000,000 as set forth in its (or its related bank holding company's)
most recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b), subject to the penultimate paragraph thereof; provided, however,
that there shall be excluded from the operation of TIA ss. 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 7.12 Trustee's Application for Instructions from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Company for any action taken
by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented
in writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of any omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.06) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article III and the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or
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such redemption date (other than Securities replaced pursuant to Section 2.06),
and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all of its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 and 4.13, and the
operation of Sections 6.01(5), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in
the case of Sections 6.01(6) and (7), with respect only to Significant
Subsidiaries) and the limitations contained in Sections 5.01(a)(5) and
5.02(a)(5) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwith standing its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Sections 6.01(4)
(with respect to the covenants of Article IV identified in the immediately
preceding paragraph), 6.01(5), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (with
respect only to Significant Subsidiaries in the case of Sections 6.01(6) and
6.01(7)) or because of the failure of the Company to comply with the limitations
contained in Sections 5.01(a)(5) and 5.02(a)(5). If the Company exercises its
legal defeasance option or its covenant defeasance option, each Subsidiary
Guarantor, if any, shall be released from all its obligations under its
Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 7.07, 7.08, 8.05 and 8.06 shall
survive until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company
may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Securities to maturity or
redemption, as the case may be;
4.3-62
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(6) or (7) with
respect to the Company or any other Person making such deposit occurs
that is continuing at the end of the period;
(4) no Default or Event of Default has occurred and is
continuing on the date of such deposit and after giving
effect thereto;
(5) the deposit does not constitute a default under any
other agreement or instrument binding on the Company and is
not prohibited by Article X;
(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940, as amended;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the
4.3-63
Securities as contemplated by this Article VIII have been complied
with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article X.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The
Company, the Subsidiary Guarantors and the Trustee may amend this
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Indenture or the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article X or Article XII that would
limit or terminate the benefits available to any holder of Senior Debt
(or Representatives therefor) under Article X or Article XII;
(5) to add additional Guarantees with respect to the
Securities or to release Subsidiary Guarantors from Subsidiary
Guarantees as provided for herein;
(6) to secure the Securities or add to the covenants of the
Company for the benefit of the Holders or surrender any right or power
herein conferred upon the Company;
(7) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(8) to make any change that does not adversely affect
the rights of any Securityholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Debt then outstanding unless the holders of such Senior Debt (or their
Representative) consent to such change.
After an amendment under this Section 9.01 becomes effective,
the Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in aggregate principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
4.3-65
exchange offer for the Securities). However, without the consent
of each Securityholder affected thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment or waiver;
(2) reduce the rate of or extend the time for payment
of interest on any Security;
(3) reduce the principal of or extend the Stated
Maturity of any Security;
(4) impair the right of any Holder to receive payment of
principal of and interest on such Xxxxxx's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities or any
Subsidiary Guaranty;
(5) reduce the amount payable upon the redemption or
repurchase of any Security under Article III or Section 4.06 or 4.11,
change the time at which any Security may be redeemed in accordance
with Article III, or, at any time after a Change of Control or Asset
Sale has occurred, change the time at which any Change of Control Offer
or Prepayment Offer must be made or at which the Securities must be
repurchased pursuant to such Change of Control Offer or Prepayment
Offer;
(6) make any Security payable in money other than that
stated in the Security;
(7) make any change in Article X or Article XII that
adversely affects the rights of any Securityholder under
Article X or Article XII;
(8) make any change in any Subsidiary Guaranty that would
adversely affect the Securityholders;
(9) release any security interest that may have been granted
in favor of the Holders other than pursuant to such security interest;
or
(10) make any change in Section 6.04 or 6.07 or the
second sentence of this Section 9.02.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Debt then outstanding unless the holders of such Senior Debt (or their
Representative) consent to such change.
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After an amendment under this Section 9.02 becomes effective,
the Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply
with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver such Security to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return such
Security to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
4.3-67
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Debt evidenced
by the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article X, to the payment when due of all Senior Debt of
the Company and that the subordination is for the benefit of and enforceable by
the holders of such Senior Debt. The Securities shall in all respects rank pari
passu with any future Senior Subordinated Debt and senior to all existing and
future junior subordinated Debt of the Company, and only Senior Debt shall rank
senior to the Securities in accordance with the provisions set forth herein. All
provisions of this Article X shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company upon a total or partial
liquidation, dissolution or winding up of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its Property:
(1) the holders of Senior Debt will be entitled to receive
payment in full in cash before the Holders of the Securities are
entitled to receive any payment of principal of or interest on the
Securities; and
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders of the Securities would be entitled but
for this Article X will be made to holders of the Senior Debt as their
interests may appear, except that Holders of Securities may receive and
retain shares of stock and any debt securities that are subordinated to
the Senior Debt to at least the same extent as the Securities.
SECTION 10.03. Default on Senior Debt. The Company
may not pay principal of, or premium, if any, or interest on, the
Securities, or make any deposit pursuant to Section 8.01, and may
4.3-68
not repurchase, redeem or otherwise retire any Securities (collectively, "pay
the Securities") if (a) any principal, premium or interest in respect of any
Senior Debt is not paid within any applicable grace period (including at
maturity) or (b) any other default on Senior Debt occurs and the maturity of
such Senior Debt is accelerated in accordance with its terms unless, in either
case, (1) the default has been cured or waived and any such acceleration has
been rescinded or (2) such Senior Debt has been paid in full in cash; provided,
however, that the Company may pay the Securities without regard to the foregoing
if the Company and the Trustee receive written notice approving such payment
from the Representative of such issue of Senior Debt. During the continuance of
any default (other than a default described in clause (a) or (b) of the
preceding sentence) with respect to any Designated Senior Debt pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except any notice required to effect the acceleration) or the expiration of any
applicable grace period, the Company may not pay the Securities for a period (a
"Payment Blockage Period") commencing upon the receipt by the Company and the
Trustee of written notice of such default from the Representative of the holders
of such Designated Senior Debt specifying an election to effect a Payment
Blockage Period (a "Payment Blockage Notice") and ending 179 days thereafter
(unless such Payment Blockage Notice is earlier terminated (a) by written notice
to the Trustee and the Company from the Representative that gave such Payment
Blockage Notice, (b) because such default is no longer continuing or (c) because
such Designated Senior Debt has been repaid in full in cash). Unless the holders
of such Designated Senior Debt or the Representative of such holders have
accelerated the maturity of such Designated Senior Debt and not rescinded such
acceleration, the Company may (unless otherwise prohibited as described in the
first sentence of this paragraph) resume payments on the Securi ties after the
end of such Payment Blockage Period. Not more than one Payment Blockage Notice
with respect to all issues of Designated Senior Debt may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to one or more issues of Designated Senior Debt during such period.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated when any Designated Senior Debt is
outstanding, the Company may not pay the Securities until three Business Days
after the Representatives of all issues of Designated Senior Debt receive notice
of such acceleration and, thereafter, may pay the Securities only if this
Indenture otherwise permits payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article X should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to them as
their interests may appear.
SECTION 10.06. Subrogation. After all Senior Debt is
paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt. A
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distribution made under this Article X to holders of Senior Debt that otherwise
would have been made to Securityholders is not, as between the Company and
Securityholders, a payment by the Company on such Senior Debt.
SECTION 10.07. Relative Rights. This Article X
defines the relative rights of Securityholders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default or an Event of Default, subject
to the rights of holders of Senior Debt to receive distributions
otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of the Debt
evidenced by the Securities shall be impaired by any act or failure to act by
the Company or by its failure to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer receives notice satisfactory to it that payments may not be made under
this Article X. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Debt may give the notice; provided,
however, that, if an issue of Senior Debt has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article X with respect to any Senior Debt that may at any time be held by it, to
the same extent as any other holder of such Senior Debt; and nothing in Article
VII shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article X shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their Representative
(if any).
SECTION 10.11. Article X Not To Prevent Events of
Default or Limit Right To Accelerate. The failure to make a
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payment pursuant to the Securities by reason of any provision in this Article X
shall not be construed as preventing the occurrence of a Default. Nothing in
this Article X shall have any effect on the right of the Securityholders or the
Trustee to accelerate the maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VIII by the Trustee
for the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article X, and none of the Securityholders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Debt or any other creditor of the Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article X, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior Debt
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Debt and other Debt of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article X.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article X, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article X, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article X.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Debt as provided in this Article X and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Debt. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt and shall not be liable to any
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such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other Person, money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article X or otherwise.
SECTION 10.16. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Debt, whether such Senior Debt was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Debt and such holder of such Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
ARTICLE XI
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees. Each Subsidiary
Guarantor hereby unconditionally guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Company under this Indenture and the Securities and
(b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture and the Securities (all
the foregoing being hereinafter collectively called the "Obligations"). Each
Subsidiary Guarantor further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such
Subsidiary Guarantor, and that such Subsidiary Guarantor will remain bound under
this Article XI notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the
Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Obligations; or
(f) any change in the ownership of such Subsidiary Guarantor.
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Each Subsidiary Guarantor further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
Each Subsidiary Guaranty is, to the extent and in the manner
set forth in Article XII, subordinated and subject in right of payment to the
prior payment in full of all Senior Debt of the Subsidiary Guarantor giving such
Subsidiary Guaranty and each Subsidiary Guarantor and is made subject to such
provisions of this Indenture.
Except as expressly set forth in Sections 4.10, 5.02 and
8.01(b), the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of set off, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, willful
or otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guaranty herein shall continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of principal of or interest on
any Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Obligation, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid amount of such Obligations, (ii) accrued and unpaid
interest on such Obligations (but only to the extent not prohibited by law) and
(iii) all other monetary Obligations of the Company to the Holders and the
Trustee.
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Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in respect of any Obligations guaranteed hereby
until payment in full in cash of all Obligations and all obligations to which
the Obligations are subordinated as provided in Article XII. Each Subsidiary
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article VI for the purposes
of such Subsidiary Guarantor's Subsidiary Guaranty herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.01.
SECTION 11.02. Contribution. Each of the Company and any
Subsidiary Guarantor (a "Contributing Party") agrees (subject to Articles X and
XII) that, in the event a payment shall be made by any other Subsidiary
Guarantor under any Subsidiary Guaranty (the "Claiming Guarantor"), the
Contributing Party shall indemnify the Claiming Guarantor in an amount equal to
the amount of such payment multiplied by a fraction, the numerator of which
shall be the net worth of the Contributing Party on the date hereof and the
denominator of which shall be the aggregate net worth of the Company and all the
Subsidiary Guarantors on the date hereof (or, in the case of any Subsidiary
Guarantor becoming a party hereto pursuant to Section 9.01, the date of the
amendment hereto executed and delivered by such Subsidiary Guarantor).
SECTION 11.03. Successors and Assigns. This Article XI shall
be binding upon each Subsidiary Guarantor and its successors and assigns and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article XI shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article XI
at law, in equity, by statute or otherwise.
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SECTION 11.05. Modification. No modification, amendment or
waiver of any provision of this Article XI, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.12 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit B hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article XI
and shall guarantee the Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized, executed and delivered by such Subsidiary and that,
subject to the application of bankruptcy, insolvency, moratorium, fraudulent
conveyance or transfer and other similar laws relating to creditors' rights
generally and to the principles of equity, whether considered in a proceeding at
law or in equity, the Subsidiary Guaranty of such Subsidiary Guarantor is a
legal, valid and binding obligation of such Subsidiary Guarantor, enforceable
against such Subsidiary Guarantor in accordance with its terms.
ARTICLE XII
Subordination of Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate. Each Subsidiary
Guarantor agrees, and each Securityholder by accepting a Security agrees, that
the Obligations of such Subsidiary Guarantor are subordinated in right of
payment, to the extent and in the manner provided in this Article XII, to the
payment when due of all Senior Debt of such Subsidiary Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Debt. The Obligations of a Subsidiary Guarantor shall in all respects
rank pari passu with any future Senior Subordinated Debt of such Subsidiary
Guarantor and senior to all existing and future junior subordinated Debt of such
Subsidiary Guarantor, and only Senior Debt shall rank senior to the Obligations
of such Subsidiary Guarantor in accordance with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of any Subsidiary
Guarantor to creditors upon a total or partial liquidation,
dissolution or winding up of such Subsidiary Guarantor or in a
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bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Subsidiary Guarantor or its property:
(1) holders of Senior Debt of such Subsidiary Guarantor shall
be entitled to receive payment in full in cash of such Senior Debt
before Securityholders shall be entitled to receive any payment
pursuant to any Obligations of such Subsidiary Guarantor; and
(2) until the Senior Debt of any Subsidiary Guarantor is paid
in full in cash, any distribution made by or on behalf of such
Subsidiary Guarantor to which Securityholders would be entitled but for
this Article XII shall be made to holders of the Senior Debt as their
interests may appear, except that all Securityholders may receive and
retain shares of stock and any debt securities of such Subsidiary
Guarantor that are subordinated to Senior Debt of such Subsidiary
Guarantor to at least the same extent as the Obligations of such
Subsidiary Guarantor are subordinated to Senior Debt of such Subsidiary
Guarantor.
SECTION 12.03. Default on Senior Debt of Subsidiary Guarantor.
No Subsidiary Guarantor may make any payment pursuant to any of its Obligations
or repurchase, redeem or otherwise retire or defease any Securities or other
Obligations (collectively, "pay its Subsidiary Guaranty") if (i) any principal,
premium or interest in respect of any Senior Debt of such Subsidiary Guarantor
is not paid within any applicable grace period (including at maturity) or (ii)
any other default on Senior Debt of such Subsidiary Guarantor occurs and the
maturity of such Senior Debt is accelerated in accordance with its terms unless,
in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Senior Debt has been paid in full in
cash; provided, however, that any Subsidiary Guarantor may pay its Subsidiary
Guaranty without regard to the foregoing if such Subsidiary Guarantor and the
Trustee receive written notice approving such payment from the Representatives
of such issue of Senior Debt of such Subsidiary Guarantor. No Subsidiary
Guarantor may pay its Subsidiary Guaranty during the continuance of any Payment
Blockage Period after receipt by the Company and the Trustee of a Payment
Blockage Notice under Section 10.03. Notwithstanding the provisions described in
the immediately preceding sentence, unless the holders of Designated Senior Debt
giving such Payment Blockage Notice or the Representative of such holders shall
have accelerated the maturity of such Designated Senior Debt and not rescinded
such acceleration, any Subsidiary Guarantor may resume (unless otherwise
prohibited as described in the first sentence of this paragraph) resume payments
pursuant to its Subsidiary Guaranty after the end of such Payment Blockage
Period.
SECTION 12.04. Demand for Payment. If a demand for payment is
made on a Subsidiary Guarantor pursuant to Article XI, such Subsidiary Guarantor
may not pay its Subsidiary Guaranty until three Business Days after the
Representatives of all issues of Designated Senior Debt receive notice of such
acceleration and,
4.3-76
thereafter, may pay its Subsidiary Guaranty only if this Indenture otherwise
permits payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article XII should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of the relevant Senior Debt and pay it over
to them or their Representatives as their interests may appear.
SECTION 12.06. Subrogation. After all Senior Debt of a
Subsidiary Guarantor is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt. A distribution made under this
Article XII to holders of such Senior Debt that otherwise would have been made
to Securityholders is not, as between the relevant Subsidiary Guarantor and
Securityholders, a payment by such Subsidiary Guarantor on such Senior Debt.
SECTION 12.07. Relative Rights. This Article XII
defines the relative rights of Securityholders and holders of Senior Debt of a
Subsidiary Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Subsidiary Guarantor and Secu
rityholders, the obligation of such Subsidiary Guarantor, which is
absolute and unconditional, to pay the Obligations to the extent set
forth in Article XI or the relevant Subsidiary Guaranty; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by such Subsidiary Guarantor
under the Obligations, subject to the rights of holders of Senior Debt
of such Subsidiary Guarantor to receive distributions otherwise payable
to Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by Subsidiary
Guarantor. No right of any holder of Senior Debt of any Subsidiary Guarantor to
enforce the subordination of the Obligation of such Subsidiary Guarantor shall
be impaired by any act or failure to act by such Subsidiary Guarantor or by its
failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to make
payments on any Subsidiary Guaranty and shall not be charged with knowledge of
the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Trust Officer receives written notice satisfactory to it that payments may not
be made under this Article XII. The Company, the relevant Subsidiary Guarantor,
the Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Senior Debt of any Subsidiary Guarantor may give the notice; provided, however,
that,
4.3-77
if an issue of Senior Debt of any Subsidiary Guarantor has a Representative,
only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Debt of any Subsidiary Guarantor that may
at any time be held by it, to the same extent as any other holder of Senior
Debt; and nothing in Article VII shall deprive the Trustee of any of its rights
as such holder. Nothing in this Article XII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt of any Subsidiary Guarantor, the distribution may be made and the notice
given to their Representative (if any).
SECTION 12.11. Article XII Not To Prevent Events of Default
Under a Subsidiary Guaranty or Limit Right To Demand Payment. The failure to
make a payment pursuant to a Subsidiary Guaranty by reason of any provision in
this Article XII shall not be construed as preventing the occurrence of a
default under such Subsidiary Guaranty. Nothing in this Article XII shall have
any effect on the right of the Securityholders or the Trustee to make a demand
for payment on any Subsidiary Guarantor pursuant to Article XI or the relevant
Subsidiary Guaranty.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior Debt
of any Subsidiary Guarantor for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Senior Debt and
other Debt of such Subsidiary Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XII. In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any Person as
a holder of Senior Debt of any Subsidiary Guarantor to participate in any
payment or distribution pursuant to this Article XII, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt of such Subsidiary Guarantor held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article XII, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
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Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article XII.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Debt of any Subsidiary Guarantor as provided in this Article XII and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Debt of Subsidiary Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of any Subsidiary Guarantor and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the Company or any other Person, money or
assets to which any holders of such Senior Debt shall be entitled by virtue of
this Article XII or otherwise.
SECTION 12.15. Reliance by Holders of Senior Debt of a
Subsidiary Guarantor on Subordination Provisions. Each Securityholder by
accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to
each holder of any Senior Debt of any Subsidiary Guarantor, whether such Senior
Debt was created or acquired before or after the issuance of the Securities, to
acquire and continue to hold, or to continue to hold, such Senior Debt and such
holder of Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Debt.
ARTICLE XIII
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision that is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail or sent by
facsimile (with a hard copy delivered in person or by mail promptly thereafter)
and addressed as follows:
if to the Company:
TV Guide, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention of: Chief Financial Officer
4.3-79
if to any Subsidiary Guarantor, to such
Subsidiary Guarantor:
c/o TV Guide, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention of:
Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
80
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such cer
tificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company,
any Subsidiary Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Subsidiary Guarantor shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
that a Trust Officer of the Trustee actually knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent or co-registrar may make
reasonable rules for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 13.09. Governing Law. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
81
SECTION 13.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 13.11. Successors. All agreements of the
Company and each Subsidiary Guarantor in this Indenture and the
Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 13.12. Multiple Originals. The parties may
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
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SECTION 13.13. Table of Contents; Headings. The table of
contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
UNITED VIDEO SATELLITE GROUP,
INC. (to be renamed TV Guide,
Inc.),
by /s/ Xxxxx X. Xxxxxx XXX
Name: Xxxxx X. Xxxxxx XXX
Title: Executive Vice President;
Chairman and Chief Executive
Officer of TV Guide Entertainment
Group and United Video Group
EACH OF THE SUBSIDIARIES LISTED
ON SCHEDULE I HERETO,
by /s/ Xxxxx X. Xxxxxx XXX
Name: Xxxxx X. Xxxxxx XXX
Title:
THE BANK OF NEW YORK, as Trustee,
by /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Assistant Vice President
SCHEDULE I
Initial Subsidiary Guarantors
United Video Network Sales, Inc. (to be renamed TV Guide Affiliate
Sales, Inc.)
UV Corp.
Telluride Cablevision Inc.
UVTV-A, Inc.
UVTV-X, Inc.
DirectCom Networks, Inc.
TV Guide Media Sales, Inc.
EuroMedia Group, Inc.
TV Guide Interactive Group Inc.
Prevue Data Services, Inc.
TV Guide Online, Inc.
Prevue Interactive, Inc. (to be renamed TV Guide
Interactive, Inc.)
PNI Holdings, Inc. (to be renamed TV Guide Entertainment
Group, Inc.)
Prevue International, Inc. (TV Guide International, Inc.)
Sneak Holdings, Inc.
LMC Netlink Corporation
Westlink, Inc.
Prevue Networks, Inc. (to be renamed TV Guide Networks, Inc.)
UVTV, Inc.
Netlink USA
News America Publications Inc. (to be renamed TV Guide Magazine
Group, Inc.)
TVSM, Inc.
TVSM Publishing, Inc.
Xxxxxxx Magazines Distribution, Inc. (to be renamed TV Guide
Distribution, Inc.)
Continental Paper Company
1
APPENDIX A
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO RULE
144A AND TO CERTAIN PERSONS IN OFFSHORE TRANSACTIONS IN RELIANCE
ON REGULATION S.
PROVISIONS RELATING TO INITIAL SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Definitive Security" means a certificated Initial Security or
an Exchange Security bearing, if required, the restricted securities legend set
forth in Section 2.3(c) hereto.
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Securities" means the 81/8% Senior Subordinated
Notes due 2009 to be issued as provided for in this Indenture in connection with
a Registered Exchange Offer or a Private Exchange pursuant to the Registration
Agreement.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means the purchasers named in
Schedule I to the Purchase Agreement.
"Initial Securities" means the 81/8% Senior Subordinated Notes
due 2009 to be issued as provided for in this Indenture.
"Private Exchange" means the offer by the Company, pursuant to
Section 2 of the Registration Agreement, to issue and deliver to the Initial
Purchasers, in exchange for the Initial Securities held by the Initial
Purchasers as part of their initial distribution, a like aggregate principal
amount of Private Exchange Securities.
"Private Exchange Securities" means the 81/8% Senior
Subordinated Notes due 2009 to be issued pursuant to this Indenture in
connection with a Private Exchange pursuant to the Registration Agreement.
"Purchase Agreement" means the Purchase Agreement dated
February 23, 1999, among the Company, the Subsidiary Guarantors and the Initial
Purchasers relating to the Initial Securities.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Registered Exchange Offer" means the offer by the
Company, pursuant to the Registration Agreement, to certain
2
Holders of Initial Securities, to issue and deliver to such Holders, in exchange
for the Initial Securities, a like aggregate principal amount of Exchange
Securities registered under the Securities Act.
"Registration Agreement" means the Registration Rights
Agreement dated February 23, 1999, among the Company, the Subsidiary Guarantors
and the Initial Purchasers relating to the Securities.
"Securities" means the Initial Securities and the
Exchange Securities, treated as a single class.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
issued by the Company in connection with the offer and sale of Initial
Securities pursuant to the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the legend set forth
in Section 2.3(c) hereto.
1.2 Other Definitions
Defined in
Term Section:
"Agent Members"..........................................................2.1(b)
"Global Security"........................................................2.1(a)
"Regulation S"...........................................................2.1
"Rule 144A"..............................................................2.1
2. The Securities
2.1 Form and Dating
The Initial Securities will be offered and sold by the Company
pursuant to the Purchase Agreement. Unless registered under the Securities Act,
the Initial Securities will be resold, initially only to QIBs in reliance on
Rule 144A under the Securities Act ("Rule 144A") and in reliance on Regulation S
under the Securities Act ("Regulation S"). Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S and
IAIs under Rule 501(a)(1), (2), (3) or (7) under the Securities Act, subject to
the restrictions on transfers set forth therein.
(a) Global Securities. Initial Securities shall be issued
initially in the form of one or more permanent global securities in definitive,
fully registered form (each, a "Global Security") without interest coupons and
with the global securities legend and the restricted securities legend set forth
in Exhibit 1 hereto, which shall be deposited on behalf of the purchasers of the
Initial Securities represented thereby with the Securities Custodian, and
registered in the name of the Depository or a nominee of the
3
Depository, duly executed by the Company and authenticated by the Trustee as
provided in this Indenture. The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee as hereinafter
provided. Initial Securities, the beneficial interests in which are sold to
QIBs, will initially be represented by Global Securities bearing CUSIP numbers
00000XXX0, and Initial Securities, the beneficial interests in which are sold
pursuant to Regulation S, will initially be represented by Global Securities
bearing CUSIP number X00000XX0. Initial Securities, the beneficial interests in
which are sold to IAIs, will initially be represented by Global Securities
bearing the CUSIP numbers 00000XXX0.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b) and pursuant to an order of the Company, authenticate
and deliver initially one or more Global Securities that (a) shall be registered
in the name of the Depository for such Global Security or Global Securities or
the nominee of such Depository and (b) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions or held by the Trustee
as Securities Custodian.
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 by the Trustee as Securities
Custodian or under such 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 such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.4
hereto, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
Initial Securities for original issue in an aggregate principal amount of
$400,000,000 and (2) the Exchange Securities for issue only in a Registered
Exchange Offer or a Private Exchange pursuant to the Registration Agreement, for
a like principal amount of Initial Securities, upon a written order of the
Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall specify the
amount of the Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated and whether
4
the Securities are to be Initial Securities or Exchange Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$400,000,000 except as provided in Section 2.07 of this Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of
Definitive Securities. When Definitive Securities are presented to
the Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(ii) are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or pursuant
to clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that
effect; or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act, (i) a
certification to that effect and (ii) if the Company so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions
set forth in the legend set forth in Section 2.3(c)(i) hereto.
(b) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depository, in accordance with
this Indenture (including applicable restrictions on transfer set forth
herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Security shall deliver
a
5
written order given in accordance with the Depository's procedures
containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global
Security and such account shall be credited in accordance with such
instructions with a beneficial interest in the Global Security and the
account of the Person making the transfer shall be debited by an amount
equal to the beneficial interest in the Global Security being
transferred. In the case of a transfer of a beneficial interest in a
Global Security to an IAI, the transferee must furnish a signed letter
to the Trustee containing certain representations and agreements (the
form of which letter can be obtained from the Trustee or the Company).
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except 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 or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository.
(iv) In the event that a Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4 hereto
prior to the consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with respect to such
Securities, such Securities may be exchanged only in accordance with
such procedures as are substantially consistent with the provisions of
this Section 2.3 (including the certification requirements set forth on
the reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable
exemption from registration under the Securities Act, as the case may
be) and such other procedures as may from time to time be adopted by
the Company.
(c) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii), (iv) and (vi), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution
6
thereof) shall bear a legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS NOTE MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF
THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY
HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE
THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER
THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (6)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY
COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A OR (2) AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (k)(2) (1) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT."
Each Definitive Security will also bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER
TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND
7
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under
the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Security that does not bear the legends set
forth above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
that is represented by a Global Security, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Definitive Security that does not bear the
legends set forth above and rescind any restriction on the
transfer of such Transfer Restricted Security,
in either case, if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Securities or
Private Exchange Securities, all requirements pertaining to legends on
such Initial Securities or Private Exchange Securities will cease to
apply, and an Initial Security or Private Exchange Security in global
form without restricted legends will be available to the transferee of
the beneficial interests in such Initial Securities or Private Exchange
Securities. Upon the occurrence of any of the circumstances described
in this paragraph, the Company will deliver an Officers' Certificate to
the Trustee instructing the Trustee to issue Securities without
legends.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which certain Holders of
such Initial Securities are offered Exchange Securities not
constituting Private Exchange Securities in exchange for their Initial
Securities, Exchange Securities not constituting Private Exchange
Securities in global form will be available to Holders that exchange
such Initial Securities in such Registered Exchange Offer. Upon the
occurrence of any of the circumstances described in this paragraph, the
Company will deliver an Officers' Certificate to the Trustee
instructing the Trustee to issue Securities without legends.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Securities pursuant to which Holders of
8
such Initial Securities are offered Private Exchange Securities in
exchange for their Initial Securities, Private Exchange Securities in
global form with, to the extent required by applicable law, the
restricted securities legend set forth in Exhibit 1 hereto, will be
available to Holders that exchange such Initial Securities in such
Private Exchange.
(d) Cancelation or Adjustment of Global Security. At
---------------------------------------------
such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed,
repurchased or canceled, such Global Security shall be returned by
the Depository to the Trustee for cancelation or retained and
canceled by the Trustee. At any time prior to such cancelation, if
any beneficial interest in a Global Security is exchanged for
Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security
shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the Securities Custodian for
such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(e) Obligations with Respect to Transfers and Exchanges
of Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's
or co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.06, 4.11 and
9.05 of this Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning 15 days before the mailing of a notice of redemption or an
offer to repurchase Securities or 15 days before an interest payment
date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this
9
Indenture as the Securities surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depository or any other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depository or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depository
subject to the applicable rules and procedures of the Depository. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities
(a) A Global Security deposited with the Depository or with
the Trustee as Securities Custodian pursuant to Section 2.1 hereto shall be
transferred to the beneficial owners thereof in the form of certificated
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if (i) the
Depository notifies the Company that it is unwilling or unable to continue as a
Depository for such Global Security or if at any time the Depository ceases to
be a "clearing agency" registered under the Exchange Act, and a successor
Depository is not appointed by the Company within 90 days of such notice,(ii) a
Default or an Event of Default has occurred and is continuing or (iii) the
Company, in its sole discretion, notifies the Trustee in writing that it elects
to cause the issuance of certificated Securities under this Indenture.
10
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depository to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of certificated Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depository shall
direct. Any certificated Initial Security delivered in exchange for an interest
in the Global Security shall, except as otherwise provided by Section 2.3(c)
hereto, bear the restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b) hereto, the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form without interest coupons.
1
EXHIBIT 1
to APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, 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 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF
(OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE
OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE
BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR
THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE
2
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED
INVESTOR HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2)(1) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
[Definitive Securities Legend]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.]
1
No. [up to]** $__________
81/8% Senior Subordinated Note due 2009
CUSIP No. ______
United Video Satellite Group, Inc. (to be renamed TV Guide,
Inc.), a Delaware corporation, promises to pay to [ ], or registered assigns,
the principal sum [of ______ Dollars]* [as set forth on the Schedule of
Increases or Decreases annexed hereto]** on March 1, 2009.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
UNITED VIDEO SATELLITE GROUP, INC.
(to be renamed TV Guide, Inc.),
by /s/_________________________
Name:
Title:
by /s/__________________________
Name:
Title:
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated: March 1, 1999
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by_________________________
Authorized Signatory
* Insert for Definitive Securities.
** Insert for Global Securities.
2
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
81/8% Senior Subordinated Note due 2009
1. Interest
(a) United Video Satellite Group, Inc. (to be renamed TV
Guide, Inc.), a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest semiannually on
March 1 and September 1 of each year. 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 March 1, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate borne by the Securities plus 1% per annum, and it shall
pay interest on overdue installments of interest at the rate borne by the
Securities to the extent lawful.
(b) Special Interest. The holder of this Security is entitled
to the benefits of the Registration Rights Agreement dated February 23, 1999,
among the Company, the Subsidiary Guarantors named therein (the "Subsidiary
Guarantors") and the Purchasers named therein (the "Registration Agreement").
Capitalized terms used in this paragraph (b) but not defined herein have the
meanings assigned to them in the Registration Agreement. In the event that (i)
neither the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been filed with the Commission on or prior to the 90th day
following the date of the original issuance of the Securities, (ii) neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has
been declared effective on or prior to the 150th day following the date of the
original issuance of the Securities, (iii) neither the Registered Exchange Offer
has been consummated nor the Shelf Registration Statement has been declared
effective on or prior to the 180th day following the date of the original
issuance of the Securities or (iv) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement have been declared effective, such
Registration Statement thereafter ceases to be effective or usable in connection
with resales of the Securities at any time that the Company is obligated to
maintain the effectiveness thereof pursuant to the Registration Agreement (each
such event referred to in clauses (i) through (iv) above being referred to
herein as a "Registration Default"), interest (the "Special Interest") shall
accrue (in addition to stated interest on the Securities) from and including the
date on which the first such Registration Default shall occur to but excluding
the date on which all Registration Defaults have been cured, at a rate per annum
equal to 0.25% of the principal amount of the Securities; provided, however,
that such rate per annum shall increase by 0.25% per annum from and including
the 91st day after the first such Registration Default (and each successive 91st
day thereafter) unless and until all Registration Defaults have been cured;
provided further, however, that in no event shall the Special Interest accrue at
a rate in excess of 1.00% per annum. The Special Interest will be payable in
cash semiannually in arrears each March 1 and September 1.
3
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the March 1 or September 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a certificated Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of March 1, 1999 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. 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. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the TIA for a statement of those terms.
The Securities are senior subordinated unsecured obligations
of the Company limited to $400,000,000 aggregate principal amount at any one
time outstanding (subject to Section 2.07 of the Indenture). This Security is
one of the Initial Securities referred to in the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its Restricted
Subsidiaries to, among other things, pay dividends and other distributions,
Incur Debt, enter into consensual restrictions upon
4
the payment of certain dividends and distributions by the Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or Incur Liens and make Asset Sales and certain Investments. The Indenture also
imposes limitations on the ability of the Company and the Subsidiary Guarantors
to consolidate or merge with or into any other Person or sell, transfer, assign,
lease, convey or otherwise dispose of all or substantially all the Property of
the Company or such Subsidiary Guarantor. If the Securities receive an
Investment Grade Rating, certain of the covenants in the Indenture will not be
applicable to the Company and its Restricted Subsidiaries for so long as the
Securities retain such Investment Grade Rating.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have jointly and
severally unconditionally guaranteed the Obligations on a senior subordinated
basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth below, the Securities may not be
redeemable prior to March 1, 2004. On and after that date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
following redemption prices (expressed in percentages of principal amount), plus
accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period beginning on or after March
1 of the years set forth below:
Period Redemption
Price
2004.......................................................104.063%
2005.......................................................102.708%
2006.......................................................101.354%
2007 and thereafter........................................100.000%
Notwithstanding the foregoing, prior to March 1, 2002, the
Company may redeem up to 35% of the original aggregate principal amount of the
Securities issued with the proceeds from one or more Public Equity Offerings by
the Company, at a redemption price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that it on or prior
to the date of redemption); provided, however, that after giving effect to any
such redemption, at least 65% of the original aggregate principal amount of the
Securities remains outstanding. Any such redemption shall be made within 75 days
of such Public Equity Offering.
5
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Subordination
The Securities are subordinated to Senior Debt of the Company
and the Subsidiary Guarantors. To the extent provided in the Indenture, Senior
Debt of the Company and the Subsidiary Guarantors must be paid before the
Securities may be paid. The Company and each Subsidiary Guarantor agree, and
each Securityholder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give it
effect and appoints the Trustee as attorney-in-fact for such purpose.
9. Repurchase of Securities at the Option of Holders upon Change of
Control
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorse ments or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection
6
of Securities to be redeemed or 15 days before an interest payment
date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article V of the
Indenture; (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; (iv) to make certain changes in the
subordination provisions; (v) to add Guarantees with respect to the Securities
or to release Subsidiary Guarantors from Subsidiary Guarantees; (vi) to secure
the Securities; (vii) to add additional covenants or to surrender rights and
powers conferred on the Company; (viii) to comply with the requirements of the
SEC in order to effect or maintain the qualification of the Indenture under the
TIA; or (ix) to make any change that does not adversely affect the rights of any
Securityholder.
15. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding, subject to certain limitations, may declare all the Securities
to be immediately due and payable. Certain events of bankruptcy or insolvency
are Events of Default and shall result in the Securities being immediately due
and payable upon
7
the occurrence of such Events of Default without any further act of
the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities then outstanding may direct the Trustee in
its exercise of any trust or power under the Indenture. The Holders of a
majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
8
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may substitute
another to act for him.
------------------------------------------------------------
Date: ________________ Your Signature: _____________________
------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) o to the Company; or
(2) o pursuant to an effective registration statement
under the Securities Act of 1933; or
(3) o inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule
144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
(4) o outside the United States in an offshore
transaction within the meaning of Regulation S under
the Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
10
(5) o to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements (the form of which
letter can be obtained from the Trustee or the
Company); or
(6) o pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that
if box (4), (5) or (6) is checked, the Trustee may require, prior to
registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
-------------------------
Your Signature
Signature Guarantee:
Date: ______________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program
------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing
11
representations in order to claim the exemption from registration
provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of Signature of
Exchange Principal Amount of Principal Amount of this Global Security authorized signatory
this Global Security this Global Security following such of Trustee or
decrease or increase Securities Custodian
13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.06 (Asset Sale) or 4.11 (Change of Control) of
the Indenture, check the box:
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.11 of the Indenture,
state the amount:
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a
participant in a recognized signature
guaranty medallion program.
1
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, 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 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Definitive Securities Legend]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.]
2
No. [up to]** $__________
81/8% Senior Subordinated Note due 2009
CUSIP No. ______
TV Guide, Inc., a Delaware corporation, promises to pay to [
], or registered assigns, the principal sum [of ________ Dollars]* [as set forth
on the Schedule of Increases or Decreases annexed hereto]** on March 1, 2009.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
TV GUIDE, INC.,
by
Name:
Title:
by
Name:
Title:
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated: March 1, 1999
THE BANK OF NEW YORK,
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
by_________________________
Authorized Signatory
* Insert for Definitive Securities.
** Insert for Global Securities.
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[FORM OF REVERSE SIDE OF SECURITY]
81/8% Senior Subordinated Note due 2009
1. Interest.
TV Guide, Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semiannually on March 1 and September 1 of each year. 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 March 1, 1999. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal at the rate borne by the Securities plus 1% per
annum, and it shall pay interest on overdue installments of interest at the rate
borne by the Securities to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the March 1 or September 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a certificated Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
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4. Indenture
The Company issued the Securities under an Indenture dated as
of March 1, 1999 (the "Indenture"), among the Company, the Subsidiary Guarantors
named therein (the "Subsidiary Guarantors")and the Trustee. 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. xx.xx.
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are senior subordinated unsecured obligations
of the Company limited to $400,000,000 aggregate principal amount at any one
time outstanding (subject to Section 2.07 of the Indenture). This Security is
one of the Exchange Securities referred to in the Indenture issued in exchange
for Initial Securities. The Indenture imposes certain limitations on the ability
of the Company and its Restricted Subsidiaries to, among other things, pay
dividends and other distributions, Incur Debt, enter into consensual
restrictions upon the payment of certain dividends and distributions by the
Restricted Subsidiaries enter into or permit certain transactions with
Affiliates, create or Incur Liens and make Asset Sales and certain Investments.
The Indenture also imposes limitations on the ability of the Company and the
Subsidiary Guarantors to consolidate or merge with or into any other Person or
sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all the Property of the Company or such Subsidiary Guarantor. If
the Securities receive an Investment Grade Rating, certain of the covenants in
the Indenture will not be applicable to the Company and its Restricted
Subsidiaries for so long as the Securities retain such Investment Grade Rating.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have jointly and
severally unconditionally guaranteed the Obligations on a senior subordinated
basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth below, the Securities may not be
redeemable prior to March 1, 2004. On and after that date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
following redemption prices (expressed in percentages of principal amount), plus
accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period beginning on or after March
1 of the years set forth below:
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Period Redemption
Price
2004............................................................ 104.063%
2005............................................................ 102.708%
2006 ........................................................... 101.354%
2007 and thereafter............................................. 100.000%
Notwithstanding the foregoing, prior to March 1, 2002, the
Company may redeem up to 35% of the original aggregate principal amount of the
Securities issued with the proceeds from one or more Public Equity Offerings by
the Company, at a redemption price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that it on or prior
to the date of redemption); provided, however, that after giving effect to any
such redemption, at least 65% of the original aggregate principal amount of the
Securities remains outstanding. Any such redemption shall be made within 75 days
of such Public Equity Offering.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Subordination
The Securities are subordinated to Senior Debt of the Company
and the Subsidiary Guarantors. To the extent provided in the Indenture, Senior
Debt of the Company and the Subsidiary Guarantors must be paid before the
Securities may be paid. The Company and each Subsidiary Guarantor agree, and
each Securityholder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give it
effect and appoints the Trustee as attorney-in-fact for such purpose.
9. Repurchase of Securities at the Option of Holders upon Change of
Control
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the
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Securities of such Holder at a purchase price equal to 101% of the principal
amount of the Securities to be repurchased plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorse ments or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may
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amend the Indenture or the Securities (i) to cure any ambiguity, omission,
defect or inconsistency; (ii) to comply with Article V of the Indenture; (iii)
to provide for uncertificated Securities in addition to or in place of
certificated Securities; (iv) to make certain changes in the subordination
provisions; (v) to add Guarantees with respect to the Securities or to release
Subsidiary Guarantors from Subsidiary Guarantees; (vi) to secure the Securities;
(vii) to add additional covenants or to surrender rights and powers conferred on
the Company; (viii) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA; or (ix) to
make any change that does not adversely affect the rights of any Securityholder.
15. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding, subject to certain limitations, may declare all the Securities
to be immediately due and payable. Certain events of bankruptcy or insolvency
are Events of Default and shall result in the Securities being immediately due
and payable upon the occurrence of such Events of Default without any further
act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities then outstanding may direct the Trustee in
its exercise of any trust or power under the Indenture. The Holders of a
majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
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18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may substitute
another to act for him.
------------------------------------------------------------
Date: ________________ Your Signature: _____________________
------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of Signature of
Exchange Principal Amount of Principal Amount of this Global Security authorized signatory
this Global Security this Global Security following such of Trustee or
decrease or increase Securities Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.06 (Asset Sale) or 4.11 (Change of Control) of
the Indenture, check the box:
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.11 of the Indenture,
state the amount:
$
Date: __________________ Your Signature: __________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a
participant in a recognized signature
guaranty medallion program.
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR] (the "New
Subsidiary Guarantor"), a subsidiary of TV Guide,
Inc. (or its successor), a Delaware corporation (the
"Company"), TV GUIDE, INC., on behalf of itself and
the Subsidiary Guarantors (the "Existing Subsidiary
Guarantors") under the indenture referred to below,
and THE BANK OF NEW YORK, a New York banking
association, as trustee under the indenture referred
to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company and the Existing Subsidiary Guarantors
have heretofore executed and delivered to the Trustee an Indenture (the
"Indenture") dated as of March 1, 1999, providing for the issuance of an
aggregate principal amount of $400,000,000 of 81/8% Senior Subordinated Notes
due 2009 (the "Securities");
WHEREAS Section 4.12 of the Indenture provides that under
certain circumstances the Company is required to cause the New Subsidiary
Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Subsidiary Guarantor shall unconditionally guarantee
all the Company's obligations under the Securities pursuant to a Subsidiary
Guaranty on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Subsidiary Guarantors are authorized to
execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Subsidiary Guarantor, the Company, the Existing Subsidiary Guarantors
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
1. Agreement to Guarantee. The New Subsidiary Guarantor hereby
agrees, jointly and severally with all other Subsidiary Guarantors, to
unconditionally guarantee the Company's obligations under the Securities on the
terms and subject to the conditions set forth in Article XI and Article XII of
the Indenture and to be bound by all other applicable provisions of the
Indenture.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the
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Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
by
Name:
Title:
TV GUIDE, INC., on behalf of itself
and the Existing Subsidiary
Guarantors,
by
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by
Name:
Title:
