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EXHIBIT 4.5
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REGAL CINEMAS, INC.,
Issuer
and
IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
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Indenture
Dated as of December 16, 1998
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8 7/8% Senior Subordinated Debentures due 2010
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
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ss. 310(a)(1).......................................................... 7.10
(a)(2).......................................................... 7.10
(b)............................................................. 7.03; 7.08
ss. 311(a)............................................................. 7.03
(b)............................................................. 7.03
ss. 312(a)............................................................. 2.04
(b)............................................................. 10.02
(c)............................................................. 10.02
ss. 313(a)............................................................. 7.06
(b)(2).......................................................... 7.07
(c)............................................................. 7.05; 7.06; 11.02
(d)............................................................. 7.06
ss. 314(a)............................................................. 7.05; 11.02
(a)(4).......................................................... 4.12; 11.02
(c)(1).......................................................... 11.03
(c)(2).......................................................... 11.03
(e)............................................................. 4.12; 11.04
ss. 315(a)............................................................. 7.02
(b)............................................................. 7.05; 11.02
(c)............................................................. 7.02
(d)............................................................. 7.02
(e)............................................................. 6.11
ss. 316(a)(1)(A)....................................................... 6.05
(a)(1)(B)....................................................... 6.04
(b)............................................................. 6.07
(c)............................................................. 9.03
ss. 317(a)(1).......................................................... 6.08
(a)(2).......................................................... 6.09
(b)............................................................. 2.05
ss. 318(a)............................................................. 11.01
(c)............................................................. 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS1
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .......................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act .................... 17
SECTION 1.03. Rules of Construction ................................................ 18
ARTICLE TWO
THE DEBENTURES
SECTION 2.01. Form and Dating ...................................................... 19
SECTION 2.02. Restrictive Legends .................................................. 20
SECTION 2.03. Execution, Authentication and Denominations .......................... 22
SECTION 2.04. Registrar and Paying Agent ........................................... 23
SECTION 2.05. Paying Agent to Hold Money in Trust .................................. 24
SECTION 2.06. Transfer and Exchange ................................................ 24
SECTION 2.07. Book-Entry Provisions for Global Debentures .......................... 25
SECTION 2.08. Special Transfer Provisions .......................................... 27
SECTION 2.09. Replacement Debentures ............................................... 30
SECTION 2.10. Outstanding Debentures ............................................... 31
SECTION 2.11. Temporary Debentures ................................................. 31
SECTION 2.12. Cancellation ......................................................... 31
SECTION 2.13. CUSIP Numbers ........................................................ 32
SECTION 2.14. Defaulted Interest ................................................... 32
SECTION 2.15. Issuance of Additional Debentures .................................... 32
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption .................................................. 32
SECTION 3.02. Notices to Trustee ................................................... 33
SECTION 3.03. Selection of Debentures to Be Redeemed ............................... 33
SECTION 3.04. Notice of Redemption ................................................. 34
SECTION 3.05. Effect of Notice of Redemption ....................................... 35
SECTION 3.06. Deposit of Redemption Price .......................................... 35
SECTION 3.07. Payment of Debentures Called for Redemption .......................... 35
SECTION 3.08. Debentures Redeemed in Part .......................................... 35
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Note: The Table of Contents shall not for any purposes be deemed to be a part
of the Indenture.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Debentures ................................................ 36
SECTION 4.02. Maintenance of Office or Agency ...................................... 36
SECTION 4.03. Fall-away Event ...................................................... 37
SECTION 4.04. Limitation on Restricted Payments .................................... 37
SECTION 4.05. Limitation on the Incurrence of Additional Indebtedness
and Issuance of Capital Stock ......................... 39
SECTION 4.06. Limitations on Transactions with Affiliates .......................... 40
SECTION 4.07. Repurchase of Debentures upon a Change of Control .................... 41
SECTION 4.08. Existence ............................................................ 42
SECTION 4.09. Payment of Taxes and Other Claims .................................... 42
SECTION 4.10. Maintenance of Properties and Insurance .............................. 43
SECTION 4.11. Notice of Defaults ................................................... 43
SECTION 4.12. Compliance Certificates .............................................. 43
SECTION 4.13. Commission Reports and Reports to Holders ............................ 44
SECTION 4.14. Waiver of Stay, Extension or Usury Laws .............................. 44
SECTION 4.15. Limitation on Layering ............................................... 45
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc .......................................... 45
SECTION 5.02. Successor Substituted ................................................ 46
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default .................................................... 46
SECTION 6.02. Acceleration ......................................................... 47
SECTION 6.03. Other Remedies ....................................................... 48
SECTION 6.04. Waiver of Past Defaults .............................................. 48
SECTION 6.05. Control by Majority .................................................. 49
SECTION 6.06. Limitation on Suits .................................................. 49
SECTION 6.07. Rights of Holders to Receive Payment ................................. 50
SECTION 6.08. Collection Suit by Trustee ........................................... 50
SECTION 6.09. Trustee May File Proofs of Claim ..................................... 50
SECTION 6.10. Priorities ........................................................... 51
SECTION 6.11. Undertaking for Costs ................................................ 51
SECTION 6.12. Restoration of Rights and Remedies ................................... 51
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SECTION 6.13. Rights and Remedies Cumulative ....................................... 52
SECTION 6.14. Delay or Omission Not Waiver ......................................... 52
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General .............................................................. 52
SECTION 7.02. Certain Rights of Trustee ............................................ 52
SECTION 7.03. Individual Rights of Trustee ......................................... 54
SECTION 7.04. Trustee's Disclaimer ................................................. 54
SECTION 7.05. Notice of Default .................................................... 54
SECTION 7.06. Reports by Trustee to Holders ........................................ 54
SECTION 7.07. Compensation and Indemnity ........................................... 54
SECTION 7.08. Replacement of Trustee ............................................... 55
SECTION 7.09. Successor Trustee by Merger, Etc ..................................... 56
SECTION 7.10. Eligibility .......................................................... 57
SECTION 7.11. Money Held in Trust .................................................. 57
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations ................................. 57
SECTION 8.02. Defeasance and Discharge of Indenture 58
SECTION 8.03. Defeasance of Certain Obligations .................................... 60
SECTION 8.04. Application of Trust Money ........................................... 62
SECTION 8.05. Repayment to Company ................................................. 62
SECTION 8.06. Reinstatement ........................................................ 62
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders ........................................... 63
SECTION 9.02. With Consent of Holders .............................................. 63
SECTION 9.03. Revocation and Effect of Consent ..................................... 65
SECTION 9.04. Notation on or Exchange of Debentures 65
SECTION 9.05. Trustee to Sign Amendments, Etc ...................................... 65
SECTION 9.06. Conformity with Trust Indenture Act .................................. 66
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ARTICLE TEN
SUBORDINATION OF DEBENTURES
SECTION 10.01. Debentures Subordinated to Senior Indebtedness ...................... 66
SECTION 10.02. No Payment on Debentures in Certain Circumstances ................... 66
SECTION 10.03. Payment over of Proceeds upon Dissolution, Etc ...................... 68
SECTION 10.04. Subrogation ......................................................... 70
SECTION 10.05. Obligations of Company Unconditional 71
SECTION 10.06. Notice to Trustee ................................................... 71
SECTION 10.07. Reliance on Judicial Order or Certificate of Liquidating Agent ...... 72
SECTION 10.08. Trustee's Relation to Senior Indebtedness ........................... 72
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness ................ 73
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination of Debentures . 73
SECTION 10.11. Not to Prevent Events of Default .................................... 73
SECTION 10.12. Trustee's Compensation Not Prejudiced ............................... 73
SECTION 10.13. No Waiver of Subordination Provisions ............................... 73
SECTION 10.14. Payments May Be Paid Prior to Dissolution ........................... 74
SECTION 10.15. Consent of Holders of Senior Indebtedness Under the
Senior Credit Facilities .............................. 74
SECTION 10.16. Trust Moneys Not Subordinated ....................................... 74
SECTION 10.17. Notice to Representative of Designated Senior Indebtedness .......... 74
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939 75
SECTION 11.02. Notices ............................................................. 75
SECTION 11.03. Certificate and Opinion as to Conditions Precedent .................. 76
SECTION 11.04. Statements Required in Certificate or Opinion 77
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar ......................... 77
SECTION 11.06. Payment Date Other Than a Business Day .............................. 77
SECTION 11.07. Governing Law 78
SECTION 11.08. No Adverse Interpretation of Other Agreements 78
SECTION 11.09. No Recourse Against Others .......................................... 78
SECTION 11.10. Successors 78
SECTION 11.11. Duplicate Originals 78
SECTION 11.12. Separability ........................................................ 78
SECTION 11.13. Table of Contents, Headings, Etc .................................... 78
EXHIBIT A Form of Debenture .................................................... A-1
EXHIBIT B Form of Certificate .................................................. B-1
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EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors ....................... C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S .............................. X-0
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XXXXXXXXX, dated as of December 16, 1998, between REGAL CINEMAS, INC.,
a Tennessee corporation (the "Company"), and IBJ XXXXXXXX BANK & TRUST COMPANY,
a New York banking corporation, trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance initially of up to $200,000,000 aggregate
principal amount of the Company's 8 7/8% Senior Subordinated Debentures due 2010
(the "Debentures") issuable as provided in this Indenture. All things necessary
to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done, and the Company has done all things necessary to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee hereunder and duly issued by the Company, valid obligations of the
Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with the Company or any of
its Restricted Subsidiaries or assumed in connection with the acquisition of
assets from such Person and not incurred by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or consolidation.
"Acquired Preferred Stock" means the Preferred Stock of any Person at
such time as such Person becomes a Restricted Subsidiary of the Company or at
the time it merges or consolidates with the Company or any of its Restricted
Subsidiaries and not issued by such Person in connection with, or in
anticipation or contemplation of, such acquisition, merger or consolidation.
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"Act III" means Act III Cinemas, Inc., a Delaware corporation.
"Act III Merger" means the merger of Act III with and into the Company.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliate Transaction" has the meaning specified in Section 4.06.
"Agent" means any Registrar, Co-Registrar, Paying Agent, Transfer Agent
or authenticating agent.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) any transaction pursuant to which any
Person shall become a Restricted Subsidiary of the Company or shall be
consolidated or merged with the Company or any Restricted Subsidiary of the
Company or (ii) the acquisition by the Company or any Restricted Subsidiary of
the Company of assets of any Person comprising a division, line of business or
theatre site of such Person.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York, New York.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and (ii) with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligation
of such Person to pay rent or other amounts under a lease to which such Person
is a party that is required to be classified and accounted for as a capital
lease obligation under GAAP, and for purposes of this
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definition, the amount of such obligation at any date shall be the capitalized
amount of such obligation at such date, determined in accordance with GAAP.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group") (whether or not otherwise in
compliance with the provisions of this Indenture), other than to Xxxxx Muse, KKR
or any of their respective officers or directors or any Affiliates of any of the
foregoing (the "Permitted Holders"); or (ii) the acquisition by any Person or
Group (other than the Permitted Holders or any direct or indirect subsidiary of
any Permitted Holder) of the power, directly or indirectly, to vote or direct
the voting of securities having more than 50% of the ordinary voting power for
the election of directors of the Company.
"Change of Control Offer" has the meaning provided in Section 4.07(a).
"Change of Control Payment Date" has the meaning provided in Section
4.07(c).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
the Company (i) by its Chairman of the Board, its Chief Executive Officer, its
President, a Vice President or its Chief Financial Officer and (ii) by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee; provided, however, that such written request or order
may be signed by any two officers or directors listed in clause (i) above in
lieu of being signed by one of such officers or directors listed in such clause
(i) and one of the officers listed in clause (ii) above.
"Consolidated EBITDA" means, for any period, the net income of the
Company and its Restricted Subsidiaries for such period plus, to the extent such
amount was deducted in calculating such net income (i) Consolidated Interest
Expense, (ii) income taxes, (iii) depreciation expense, (iv) amortization
expense, (v) all other non-cash items, extraordinary items, nonrecurring and
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unusual items and cumulative effects of changes in accounting principles
reducing such net income, less all non-cash items, extraordinary items,
nonrecurring and unusual items and cumulative effects of changes in accounting
principles increasing such net income, all as determined on a consolidated basis
for the Company and its Restricted Subsidiaries in conformity with GAAP; (vi)
upfront expenses resulting from equity offerings, investments, mergers,
recapitalizations, option buyouts, Dispositions, Asset Acquisitions and similar
transactions to the extent such expenses reduce net income; (vii) restructuring
charges reducing net income; and (viii) gains or losses on Dispositions;
provided that Consolidated EBITDA shall not include (x) the net income (or net
loss) of any Person that is not a Restricted Subsidiary, except (I) with respect
to net income, to the extent of the amount of dividends or other distributions
actually paid to the Company or any of its Restricted Subsidiaries by such
Person during such period and (II) with respect to net losses, to the extent of
the amount of investments made by the Company or any Restricted Subsidiary in
such Person during such period; (y) solely for the purposes of calculating the
amount of Restricted Payments that may be made pursuant to clause (iii) of
Section 4.04(a) (and in such case, except to the extent includable pursuant to
clause (x) above), the net income (or net loss) of any Person accrued prior to
the date it becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or all or substantially
all of the property and assets of such Person are acquired by the Company or any
of its Restricted Subsidiaries; and (z) the net income of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is not at the
time permitted by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary (other than any agreement or instrument
evidencing Indebtedness or Preferred Stock outstanding on the Issue Date or
incurred or issued thereafter in compliance with Section 4.05; provided that the
terms of any such agreement restricting the declaration and payment of dividends
or similar distributions apply only in the event of a default with respect to a
financial covenant or a covenant relating to payment (beyond any applicable
period of grace) contained in such agreement or instrument and provided such
terms are determined by the Company to be customary in comparable financings and
such restrictions are determined by the Company not to materially affect the
Company's ability to make principal or interest payments on the Debentures when
due).
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Swap
Agreements (including any amortization of discounts), (c) the interest portion
of any deferred payment obligation, (d) all commissions, discounts and other
fees and charges owed with respect to letters of credit, bankers' acceptance
financing or similar facilities, and (e) all accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid or accrued by such
Person and its Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP; excluding, however, any amount of such interest
of any Restricted Subsidiary if the net income
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of such Restricted Subsidiary is excluded in the calculation of Consolidated
EBITDA pursuant to clause (z) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded from the
calculation of Consolidated EBITDA pursuant to clause (z) of the definition
thereof), all as determined on a consolidated basis (without taking into account
Unrestricted Subsidiaries) in conformity with GAAP.
"Construction Indebtedness Amount" shall mean an amount equal to the
lesser of (i) $100 million and (ii) the total Indebtedness of any Person and its
Restricted Subsidiaries outstanding on the last day of any Reference Period
incurred in connection with the construction or enhancement of motion picture
theatres or screens that, on such day, are not open for business.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Corporate
Administration.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Debentures" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Debentures" shall
include the Debentures initially issued on the Issue Date, any Exchange
Debentures to be issued and exchanged for any Debentures pursuant to the
Registration Rights Agreement and this Indenture and any other Debentures issued
after the Closing Date under this Indenture. For purposes of this Indenture, all
Debentures shall vote together as one series of Debentures under this Indenture.
"Debenture Obligations" means all Obligations relating to the
Debentures, including, without limitation, all principal, premium, if any,
interest (including, without limitation, any additional amounts payable with
respect to the Debentures as a result of the failure to comply with the terms of
the Registration Rights Agreement).
"Debt Rating" shall mean the rating assigned to the Debentures by
Moody's or S&P, as the case may be.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depositary" means The Depository Trust Company, its nominees, and
their respective successors.
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"Designated Preferred Stock" means preferred stock of the Company
(other than Disqualified Capital Stock) that is issued for cash (other than to a
Restricted Subsidiary) and is so designated as Designated Preferred Stock,
pursuant to an Officers' Certificate executed by the principal executive officer
and the principal financial officer of the Company, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in clause (iii) of Section 4.04(a).
"Designated Senior Indebtedness" means (i) all obligations under the
Senior Credit Facilities and (ii) any other Senior Indebtedness of the Company
which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25.0 million and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, or transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets or Capital Stock.
"Disqualified Capital Stock" means 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), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control if such Capital Stock requires that
the Change of Control Offer with respect to the Debentures be completed prior to
any similar offer being made with respect to such Capital Stock), in whole or in
part, on or prior to the final maturity date of the Debentures; provided that
only the portion of Capital Stock which so matures or is mandatorily redeemable
or is so redeemable at the sole option of the holder thereof prior to the final
maturity date of the Debentures shall be deemed Disqualified Capital Stock.
"Equity Offering" means a private sale or public offering of Capital
Stock or preferred stock (other than Disqualified Capital Stock) of the Company.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Debentures" means any securities of the Company containing
terms identical to the Debentures (except that such Exchange Debentures shall be
registered under the Securities Act) that are issued and exchanged for the
Debentures pursuant to the Registration Rights Agreement and this Indenture.
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"GAAP" means generally accepted accounting principles in the United
States of America, including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or the Commission or in such other statements by such other
entity as approved by a significant segment of the accounting profession. All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP as in effect on the date hereof.
"Global Debentures" has the meaning provided in Section 2.01.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Xxxxx Muse" means Hicks, Muse, Xxxx & Xxxxx Incorporated.
"Holder" or "Debentureholder" means the registered holder of any
Debenture.
"Indebtedness" means with respect to any Person, without duplication,
any liability of such Person (i) for borrowed money, (ii) evidenced by bonds,
debentures, notes or other similar instruments, (iii) constituting Capitalized
Lease Obligations, (iv) incurred or assumed as the deferred purchase price of
property or services, or pursuant to conditional sale obligations and title
retention agreements (but excluding trade accounts payable arising in the
ordinary course of business), (v) for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction, (vi) for
Indebtedness of others guaranteed by such Person, (vii) for Interest Swap
Agreements, Commodity Agreements and Currency Agreements and (viii) for
Indebtedness of any other Person of the type referred to in clauses (i) through
(vii) which is secured by any Lien on any property or asset of such first
referred to Person, the amount of such Indebtedness being deemed to be the
lesser of the value of such property or asset or the amount of the Indebtedness
so secured. The amount of Indebtedness of any Person at any date shall be (i)
the outstanding principal amount of all unconditional obligations described
above, as such amount would be calculated in accordance with GAAP, (ii) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount and (iii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking firm or consultant to Persons engaged in the motion picture
exhibition and distribution business of
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nationally recognized standing that is, in the judgment of the Company's Board
of Directors, qualified to perform the task for which it has been engaged.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means each semiannual interest payment date on
June 15 and December 15 of each year, commencing June 15, 1999.
"Interest Swap Agreements" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge or arrangement.
"Investment Grade Status" exists as of a date and thereafter if at such
date either (i) the Debt Rating of Xxxxx'x is at least Baa3 (or the equivalent)
or higher or (ii) the Debt Rating of S&P is at least BBB-- (or the equivalent)
or higher.
"Issue Date" means December 16, 1998.
"KKR" means Kohlberg Kravis Xxxxxxx & Co. L.P.
"Leverage Ratio" means the ratio of (i) the aggregate outstanding
amount of Indebtedness (excluding any Construction Indebtedness Amount and net
of any cash and cash equivalents) of the Company and its Restricted Subsidiaries
on a consolidated basis in accordance with GAAP plus the aggregate liquidation
preference of all Disqualified Capital Stock of such Person and all Preferred
Stock of Restricted Subsidiaries of such Person (other than any such
Disqualified Capital Stock or Preferred Stock held by such Person or any of its
Restricted Subsidiaries) on such date to (ii) the aggregate amount of
Consolidated EBITDA for the most recent four full fiscal quarters (the "Four
Quarter Period") for which financial statements of the Company have been filed
with the Commission or delivered to the Trustee pursuant to Section 4.13. The
Four Quarter Period shall be hereinafter referred to as the "Reference Period."
For purposes of this definition, the aggregate outstanding principal
amount of Indebtedness or aggregate liquidation preference of Preferred Stock of
the Person and its Restricted Subsidiaries for which such calculation is made
shall be determined on a pro forma basis as if the Indebtedness or Preferred
Stock giving rise to the need to perform such calculation had been incurred and
the proceeds therefrom had been applied, and all other transactions in respect
of which such Indebtedness or Preferred Stock is being incurred has occurred, on
the last day of the Reference Period. In addition to the foregoing, for purposes
of this definition, "Consolidated EBITDA" shall be calculated on a pro forma
basis after giving effect to (i) the Transactions, (ii) the incurrence of the
Indebtedness or Preferred Stock of such Person and its Restricted Subsidiaries
(and the application of the proceeds therefrom) giving rise to the need to make
such calculation
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and any incurrence (and the application of the proceeds therefrom) or repayment
of other Indebtedness or Preferred Stock, other than the incurrence or repayment
of Indebtedness pursuant to working capital facilities, at any time subsequent
to the beginning of the Reference Period and on or prior to the date of
determination, as if such incurrence (and the application of the proceeds
thereof), or the repayment, as the case may be, occurred on the first day of the
Reference Period, (iii) any Dispositions, Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including any
Person that becomes a Restricted Subsidiary as a result of such Asset
Acquisition) incurring, assuming or otherwise becoming liable for Indebtedness
or Preferred Stock) or Theatre Completions at any time on or subsequent to the
first day of the Reference Period and on or prior to the date of determination,
as if such Disposition, Asset Acquisition (including the incurrence, assumption
or liability for any such Indebtedness or Preferred Stock and also including any
Consolidated EBITDA associated with such Asset Acquisition) or Theatre
Completion occurred on the first day of the Reference Period, (iv) the effects
of incremental contributions to Consolidated EBITDA the Company reasonably
believes in good faith could have been achieved during the Reference Period as a
result of such Asset Acquisition or Theatre Completion (regardless of whether
such incremental contributions could then be reflected in pro forma financial
statements under GAAP, Regulation S-X promulgated by the Commission or any other
regulation or policy of the Commission); provided, however, that such
incremental contributions were identified and quantified in good faith in an
Officers' Certificate delivered to the Trustee at the time of any calculation of
the Leverage Ratio and (v) any motion picture theatre that was permanently
closed for business at any time on or subsequent to the first day of the
Reference Period and on or prior to the date of determination as if such theatre
was closed on the first day of the Reference Period. In calculating
"Consolidated Interest Expense" for purposes of the calculation of "Consolidated
EBITDA," (i) interest on Indebtedness determined on a fluctuating basis as of
the date of determination (including Indebtedness actually incurred on the date
of the transaction giving rise to the need to calculate the Leverage Ratio) and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness as in effect on the date of determination and (ii) notwithstanding
(i) above, interest determined on a fluctuating basis, to the extent such
interest is covered by Interest Swap Agreements that will remain in effect for
at least 12 months, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements. For purposes of
calculating the Consolidated EBITDA associated with any Theatre Completion, the
amount thereof for the Reference Period shall be the amount of Consolidated
EBITDA expected by the Company in good faith to be derived by the Company from
such Theatre Completion during the first 12-month period following the date on
which the relevant theatre or screen opens for business.
"Lien" means, with respect to any asset, any lien, mortgage, deed of
trust, pledge, security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest).
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"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"9 1/2% Regal Notes" means the Company's 9 1/2% Senior Subordinated
Notes due 2008 issued pursuant to that certain indenture dated as of May 27,
1998, by and between the Company and IBJ Xxxxxxxx Bank & Trust Company.
"Non-U.S. Person" means a person who is not a "U.S. person" (as defined
in Regulation S).
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing, or otherwise relating to, any
Indebtedness.
"Officer" means, with respect to the Company, (i) the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or the
Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in clause
(ii) of the definition thereof or two officers listed in clause (i) of the
definition thereof. Each Officers' Certificate shall include the statements
provided for in TIA Section 314(e) to the extent applicable.
"Offshore Global Debenture" has the meaning provided in Section 2.01.
"Offshore Physical Debentures" has the meaning provided in Section
2.01.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.04 hereof. The counsel may be an employee of or counsel to the Company. Each
such Opinion of Counsel shall include the statements provided for in TIA Section
314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Payment Blockage Period" has the meaning provided in Section 10.02.
"Permitted Indebtedness" means, without duplication, (i) Indebtedness
outstanding on the Issue Date (including the 9 1/2% Regal Notes and the
Debentures); (ii) Indebtedness of the Company and any of its Restricted
Subsidiaries incurred under the Senior Credit Facilities (including letter of
credit obligations), provided that the aggregate principal amount at any time
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outstanding does not exceed $1.22 billion; (iii) Indebtedness evidenced by or
arising under the Debentures and this Indenture in respect of the Debentures;
(iv) Interest Swap Agreements, Commodity Agreements and Currency Agreements;
provided, however, that such agreements are entered into for bona fide hedging
purposes and not for speculative purposes; (v) additional Indebtedness of the
Company or any of its Restricted Subsidiaries not otherwise permitted under
Section 4.05 of this Indenture, in an aggregate principal amount, which when
aggregated with the aggregate principal amount of all other Indebtedness then
outstanding and incurred pursuant to this clause (v), does not at any one time
outstanding exceed the sum of (x) $100.0 million and (y) 100% of the net cash
proceeds received by the Company from the issue or sale after the Issue Date of
Capital Stock (other than Disqualified Capital Stock) of the Company or net cash
proceeds contributed to the capital of the Company (other than in respect of
Disqualified Capital Stock) as determined in accordance with clauses (iii)(b)
and (iii)(c) of Section 4.04(a) to the extent such net cash proceeds have not
been applied pursuant to such clause to make Restricted Payments or to effect
other transactions pursuant to Section 4.04(b) (it being understood that any
Indebtedness incurred under this clause (v) shall cease to be deemed incurred or
outstanding for purposes of this clause (v) from and after the first date on
which the Company could have incurred such Indebtedness under Section 4.05
without reliance upon this clause (v), and such Indebtedness shall thereupon be
deemed to have been so incurred); (vi) Refinancing Indebtedness (other than in
respect of Indebtedness incurred pursuant to clauses (ii), (v) and (xiii) of
this definition); (vii) Indebtedness owed by the Company to any Restricted
Subsidiary of the Company (so long as it shall remain a Restricted Subsidiary of
the Company) or by any Restricted Subsidiary (so long as it remains a Restricted
Subsidiary of the Company) of the Company to the Company or any Restricted
Subsidiary of the Company; (viii) guarantees by the Company or Restricted
Subsidiaries of any Indebtedness permitted to be incurred pursuant to this
Indenture; (ix) Indebtedness in respect of performance bonds, reimbursement
obligations with respect to letters of credit, bankers' acceptances, completion
guarantees and surety or appeal bonds provided by the Company or any of its
Restricted Subsidiaries in the ordinary course of their business or Indebtedness
with respect to reimbursement type obligations regarding workers' compensation
claims; (x) Indebtedness arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guarantees or
letters of credit, surety bonds or performance bonds securing any obligations of
the Company or any of its Restricted Subsidiaries pursuant to such agreements,
in each case incurred in connection with the disposition of any business assets
or Subsidiaries of the Company (other than guarantees of Indebtedness or other
obligations incurred by any Person acquiring all or any portion of such business
assets or Restricted Subsidiaries of the Company for the purpose of financing
such acquisition) in a principal amount not to exceed the gross proceeds,
including non-cash proceeds, actually received by the Company or any of its
Restricted Subsidiaries in connection with such disposition; provided, however,
that such Indebtedness is not reflected on the balance sheet of the Company or
any Restricted Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause);
(xi) Indebtedness (including but not limited to Capitalized Lease Obligations,
mortgage financings or purchase money obligations) incurred for the purpose of
financing all or any part of the purchase
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price or cost of construction or improvement of property or assets (whether
through direct purchase of assets or the Capital Stock of any Person owning such
assets) or incurred to refinance any such purchase price or cost of construction
or improvement; (xii) Indebtedness or Disqualified Capital Stock of Persons that
are acquired by the Company or any of its Restricted Subsidiaries or merged into
a Restricted Subsidiary in accordance with the terms of this Indenture;
provided, however, that such Indebtedness or Disqualified Capital Stock is not
incurred in contemplation of such acquisition or merger; and provided further
that after giving effect to such acquisition or merger, either (i) the Company
would be permitted to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 4.05(a) or (ii) the Leverage Ratio is
less than immediately prior to such acquisition or merger; and (xiii)
Indebtedness incurred in connection with any Real Estate Financing Transaction;
provided, however, that the amount of Indebtedness outstanding under clause (ii)
above and this clause (xiii) shall not exceed $1.22 billion at any time
outstanding.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Debentures" has the meaning provided in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"principal" of a debt security, including the Debentures, means the
principal amount due on the stated maturity as shown on such debt security.
"Private Placement Legend" means the legend initially set forth on the
Debentures in the form set forth in Section 2.02.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Real Estate Financing Transaction" means a financing or series of
financings consisting principally of one or more mortgage financings, real
estate sale or leaseback transactions or an asset-backed program based on real
estate owned by the Company or any of its Subsidiaries (funded by the issuance
of commercial paper, medium term notes or other forms of borrowing and including
credit enhancement facilities), and which may consist of or include such other
forms of financing consistent with the foregoing as the Board of Directors shall
approve in good faith, in each case as such financing or financings may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any
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amendment extending the maturity of, refinancing, replacing or otherwise
restructuring all or any portion of the Indebtedness under such financing or
financings or any successor or replacement agreement and whether including the
same or any other lender or group of lenders, and whether including or replacing
as borrowers or guarantors one or more Subsidiaries of the Company.
"Redemption Date" means, when used with respect to any Debenture to be
redeemed, the date fixed for such redemption by or in accordance with this
Indenture.
"Redemption Price" means, when used with respect to any Debenture to be
redeemed, the price at which such Debenture is to be redeemed in accordance with
this Indenture.
"Refinancing Indebtedness" means any refinancing by the Company or its
Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted
Subsidiaries incurred in accordance with Section 4.05 that does not (i) result
in an increase in the aggregate principal amount of Indebtedness (such principal
amount to include, for purposes of this definition, any premiums, fees,
penalties or accrued interest paid with the proceeds of the Refinancing
Indebtedness) of such Person or (ii) create Indebtedness with (A) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to Maturity
of the Indebtedness being refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being refinanced.
"Refunding Capital Stock" has the meaning provided in Section 4.04(b).
"Registrar" has the meaning provided in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated December 16, 1998, between the Company and Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and certain
permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the June 1 or December 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
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president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee in its corporate trust department customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Senior Indebtedness; provided, however, that
if, and for so long as, any issue of Senior Indebtedness lacks such a
representative, then the Representative for such issue of Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such issue of Senior Indebtedness.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution (other than dividends or
distributions payable in Qualified Capital Stock or in options, rights or
warrants to acquire Qualified Capital Stock or dividends or distributions by a
Restricted Subsidiary so long as in the case of any dividend or distribution
payable on or in respect of any class or series of Capital Stock issued by a
Subsidiary other than a Wholly Owned Subsidiary, the Company or a Restricted
Subsidiary receives at least its pro rata share of such dividend or distribution
in accordance with its Capital Stock) on shares of the Company's Capital Stock,
or (ii) the purchase, redemption, retirement or other acquisition for value of
any Capital Stock of the Company, or any warrants, rights or options to acquire
shares of Capital Stock of the Company, other than through the exchange of such
Capital Stock or any warrants, rights or options to acquire shares of any class
of such Capital Stock for Qualified Capital Stock or warrants, rights or options
to acquire Qualified Capital Stock.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The Board of Directors may designate any
Unrestricted Subsidiary or any person that is to become a Subsidiary as a
Restricted Subsidiary if, immediately after giving effect to such action (and
treating any Acquired Indebtedness as having been incurred at the time of such
action), the Company could have incurred at least $1.00 of additional
indebtedness under the first paragraph of Section 4.05 of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or any successor to the rating agency business
thereof.
"Secured Indebtedness" means any Indebtedness of the Company or a
Restricted Subsidiary secured by a Lien.
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"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.04.
"Senior Credit Facilities" means the credit facilities under that
certain Credit Agreement dated as of May 27, 1998, as amended on August 26,
1998, among the Company and The Bank of Nova Scotia, as administrative agent and
collateral agent, BancAmerica Xxxxxxxxx Xxxxxxxx, as syndication agent, The
Chase Manhattan Bank, as documentation agent, and the other financial
institutions from time to time party thereto, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending or shortening the maturity of,
refinancing, replacing or otherwise restructuring (including by way of adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder or
increasing the amount of Indebtedness thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders (or other
institutions).
"Senior Indebtedness" means, whether outstanding on the Issue Date or
thereafter issued, all Indebtedness of the Company, including interest
(including interest accruing on or after the filing of, or which would have
accrued but for the filing of, any petition in bankruptcy or for reorganization
relating to the Company or any Restricted Subsidiary whether or not a claim for
post-filing interest is allowed in such proceeding) and premium, if any,
thereon, and other monetary amounts (including fees, expenses, reimbursement
obligations under letters of credit and indemnities) owing in respect thereof
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that the obligations in respect of such
Indebtedness ranks pari passu with the Debentures; provided, however, that
Senior Indebtedness will not include (1) any obligation of the Company to any
Restricted Subsidiary, (2) any liability for federal, state, foreign, local or
other taxes owed or owing by the Company, (3) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness, Guarantee or obligation of the Company that is expressly
subordinate or junior in right of payment to any other Indebtedness, Guarantee
or obligation of the Company, including any Debenture Obligations and the 9 1/2%
Regal Notes (as to which the Debentures rank pari passu in right of payment) or
(5) obligations in respect of any Capital Stock.
"Senior Subordinated Indebtedness" means the Debentures and any other
Indebtedness of the Company that specifically provides that such Indebtedness is
to rank pari passu with the Debentures in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company which is not Senior Indebtedness.
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"Significant Restricted Subsidiary" means any Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date.
"Subsidiary", with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, through one or more
intermediaries, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the time,
directly or indirectly, through one or more intermediaries, owned by such
Person. Notwithstanding anything in this Indenture to the contrary, all
references to the Company and its consolidated Subsidiaries or to financial
information prepared on a consolidated basis in accordance with GAAP shall be
deemed to include the Company and its Subsidiaries as to which financial
statements are prepared on a combined basis in accordance with GAAP and to
financial information prepared on such a combined basis. Notwithstanding
anything in this Indenture to the contrary, an Unrestricted Subsidiary shall not
be deemed to be a Restricted Subsidiary for purposes of this Indenture.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Theatre Completion" means any motion picture theatre or screen or
enhancement which was first opened for business during any applicable period.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06.
"Total Assets" means the total consolidated assets of the Company and
its Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.
"Transaction Date" means, with respect to the incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
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"Unrestricted Subsidiary" means a Subsidiary of the Company created
after the Issue Date and so designated by a resolution adopted by the Board of
Directors; provided, however, that (a) neither the Company nor any of its other
Restricted Subsidiaries (1) provides any credit support for any Indebtedness or
other Obligations of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (2) is directly or indirectly liable
for any Indebtedness or other Obligations of such Subsidiary and (b) at the time
of designation of such Subsidiary, such Subsidiary has no property or assets
(other than de minimis assets resulting from the initial capitalization of such
Subsidiary). The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that immediately after giving
effect to such designation (x) the Company could incur $1.00 of additional
Indebtedness under the first paragraph of Section 4.05 of this Indenture and (y)
no Default or Event of Default shall have occurred or be continuing. Any
designation pursuant to this definition by the Board of Directors shall be
evidenced to the Trustee by the filing with the Trustee of a certified copy of
the resolution of the Board of Directors giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Global Debentures" has the meaning provided in Section 2.01.
"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.
"U.S. Physical Debentures" has the meaning provided in Section 2.01.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such Subsidiary
(other than any director's qualifying shares or shares owned by foreign
nationals to the extent mandated by applicable law) by such Person or one or
more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
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"indenture securities" means the Debentures;
"indenture security holder" means a Holder or a
Debentureholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction . Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all ratios and computations based on GAAP contained in
this Indenture shall be computed in accordance with the definition of
GAAP set forth in Section 1.01; and
(viii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
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ARTICLE TWO
THE DEBENTURES
SECTION 2.01. Form and Dating. The Debentures and the Trustee's
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture. The Debentures
may have notations, legends or endorsements required by law or stock exchange
agreements to which the Company is subject. Each Debenture shall be dated the
date of its authentication.
The terms and provisions contained in the form of the Debentures
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Debentures in registered
form, substantially in the form set forth in Exhibit A (the "U.S. Global
Debentures"), registered in the name of the nominee of the Depositary, deposited
with the Trustee, as custodian for the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the U.S. Global Debentures may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, in accordance with the instructions
given by the Holder thereof, as hereinafter provided.
Debentures offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more temporary
global Debentures in registered form substantially in the form set forth in
Exhibit A (the "Temporary Offshore Global Debentures"), registered in the name
of the nominee of the Depositary, deposited with the Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Offshore Global
Debentures may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or its nominee,
as hereinafter provided. At any time after the 40th day following the later of
commencement of the offering of the Debentures and the Issue Date, upon receipt
by the Trustee and the Company of a certificate substantially in the form of
Exhibit B hereto, one or more permanent global Debentures in registered form
substantially in the form set forth in Exhibit A (the "Permanent Offshore Global
Debentures"; and together with the Temporary Offshore Global Debentures, the
"Offshore Global Debentures") duly executed by the Company and authenticated by
the Trustee as hereinafter provided shall be deposited with the Trustee, as
custodian for the Depositary or its nominee, and the Registrar shall reflect on
its books and records the date and a decrease in the principal amount of the
Temporary Offshore Global Debentures in an amount equal to the principal amount
of the beneficial interest in the Temporary Offshore Global Debentures
transferred.
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Debentures offered and sold to Institutional Accredited Investors after
the Issue Date shall be issued in the form of permanent certificated Debentures
in registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Debentures").
Debentures issued pursuant to Section 2.07 in exchange for interests in
the Offshore Global Debentures shall be in the form of permanent certificated
Debentures in registered form substantially in the form set forth in Exhibit A
(the "Offshore Physical Debentures").
The Offshore Physical Debentures and U.S. Physical Debentures are
sometimes collectively herein referred to as the "Physical Debentures." The U.S.
Global Debentures and the Offshore Global Debentures are sometimes referred to
herein as the "Global Debentures."
The definitive Debentures shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Debentures may be listed, all as determined by the Officers executing such
Debentures, as evidenced by their execution of such Debentures.
SECTION 2.02. Restrictive Legends. Unless and until a Debenture is
exchanged for an Exchange Debenture or otherwise sold in connection with an
effective Registration Statement pursuant to the Registration Rights Agreement,
(i) the U.S. Global Debentures and U.S. Physical Debentures shall bear the
legend set forth below on the face thereof and (ii) the Offshore Physical
Debentures and Offshore Global Debentures shall bear the legend set forth below
on the face thereof until at least the 41st day after the Closing Date and
receipt by the Company and the Trustee of a certificate substantially in the
form of Exhibit B hereto, and the Temporary Offshore Global Debentures shall
bear the legend set forth below on the face thereof.
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER
RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
TRANSFER OF THIS DEBENTURE, RESELL OR OTHERWISE TRANSFER THIS DEBENTURE
EXCEPT (A) TO THE COMPANY OR ANY
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SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS DEBENTURE WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE 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. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS DEBENTURE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Debenture, whether or not an Exchange Debenture, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN
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AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION S 2.01, 2.06, 2.07 AND 2.08 OF
THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. Subject to
Article Four and applicable law, the aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is unlimited. The
Debentures shall be executed by two Officers of the Company. The signature of
these Officers on the Debentures may be by facsimile or manual signature in the
name and on behalf of the Company.
If an Officer whose signature is on a Debenture no longer holds that
office at the time the Trustee or authenticating agent authenticates the
Debenture, the Debenture shall be valid nevertheless.
A Debenture shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the Debenture. The
signature shall be conclusive evidence that the Debenture has been authenticated
under this Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Debentures in the aggregate
principal amount specified in such Company Order; provided that the Trustee
shall be entitled to receive an Officers' Certificate and an Opinion of Counsel
of the Company in connection with such authentication of Debentures. Such
Company Order shall specify the amount of Debentures to be authenticated and the
date on which the original issue of Debentures is to be authenticated and, in
case of an issuance of Debentures pursuant to Section 2.15, shall certify that
such issuance is in compliance with Article Four.
The Trustee may appoint an authenticating agent to authenticate
Debentures. An authenticating agent may authenticate Debentures whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such
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authenticating agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
The Debentures shall be issuable only in registered form without
coupons and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain
one or more offices or agencies where Debentures may be presented for
registration of transfer or for exchange (each a "Transfer Agent" and such
Transfer Agent in the Borough of Manhattan, The City of New York, the
"Registrar"), one or more offices or agencies where Debentures may be presented
for payment (each a "Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Debentures and this Indenture
may be served, one of which in each case shall be in the Borough of Manhattan,
The City of New York. The Company shall cause the Registrar to keep a register
of the Debentures and of their transfer and exchange (the "Security Register").
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or Transfer Agent, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. 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 Holders and shall otherwise
comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee as of each Regular Record Date and at such other
times as the Trustee may reasonably request the names and addresses of Holders
as they appear in the Security Register, including the aggregate principal
amount of Debentures held by each Holder.
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SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than
11:00 a.m. (New York City time) each due date of the principal, premium, if any,
and interest on any Debentures, the Company shall deposit with one or more
Paying Agents money in immediately available funds sufficient to pay such
principal, premium, if any, and interest so becoming due. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Holders or the Trustee
all money held by the Paying Agent for the payment of principal of, premium, if
any, and interest on the Debentures (whether such money has been paid to it by
the Company or any other obligor on the Debentures), and such Paying Agent shall
promptly notify the Trustee of any default by the Company (or any other obligor
on the Debentures) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent shall have no further liability
for the money so paid over to the Trustee. If the Company or any Subsidiary of
the Company or any Affiliate of any of them acts as a Paying Agent, it will, on
or before each due date of any principal of, premium, if any, or interest on the
Debentures, segregate and hold in a separate trust fund for the benefit of the
Holders a sum of money sufficient, with monies held by all other Paying Agents,
to pay such principal, premium, if any, or interest so becoming due until such
sum of money shall be paid to such Holders or otherwise disposed of as provided
in this Indenture, and will promptly notify the Trustee of its action or failure
to act.
SECTION 2.06. Transfer and Exchange. The Debentures are issuable only
in registered form. A Holder may transfer a Debenture only by written
application to the Registrar or another Transfer Agent stating the name of the
proposed transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Security Register. Prior to the registration of any
transfer by a Holder as provided herein, the Company, the Trustee, and any agent
of the Company shall treat the person in whose name the Debenture is registered
as the owner thereof for all purposes whether or not the Debenture shall be
overdue, and neither the Company, the Trustee, nor any such agent shall be
affected by notice to the contrary. Furthermore, any Holder of a Global
Debenture shall, by acceptance of such Global Debenture, agree that transfers of
beneficial interests in such Global Debenture may be effected only through a
book entry system maintained by the Holder of such Global Debenture (or its
agent) and that ownership of a beneficial interest in the Debenture shall be
required to be reflected in a book entry. When Debentures are presented to the
Registrar or another Transfer Agent with a request to register the transfer or
to exchange them for an equal principal amount of Debentures of other authorized
denominations (including an exchange of Debentures for Exchange Debentures), the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including that such Debentures are
duly endorsed or accompanied by a written instrument of transfer duly executed
by the Holder thereof or by an attorney who is authorized in writing to act on
behalf of the
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Holder); provided that no exchanges of Debentures for Exchange Debentures shall
occur until a Registration Statement shall have been declared effective by the
Commission and that any Debentures that are exchanged for Exchange Debentures
shall be cancelled by the Trustee. To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Debentures at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Debentures, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Section 2.11, 3.08 or 9.04).
Neither the Registrar nor any other Transfer Agent shall be required
(i) to issue, register the transfer of or exchange any Debenture during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Debentures selected for redemption under Section 3.03
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Debenture so selected for redemption in
whole or in part, except the unredeemed portion of any Debenture being redeemed
in part.
SECTION 2.07. Book-Entry Provisions for Global Debentures. (a) The
U.S. Global Debentures and Offshore Global Debentures initially shall (i) be
registered in the name of the Depositary for such Global Debentures or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Debenture held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Debenture, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Debenture for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Debenture.
(b) Transfers of a Global Debenture shall be limited to transfers of
such Global Debenture in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in
Global Debentures may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.08. In addition, U.S. Physical
Debentures and Offshore Physical Debentures shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Debentures or the Offshore Global Debentures, as the case may be, if (i) the
Company notifies the Trustee in writing that the Depositary it no longer willing
or able to act as Depositary or the Depositary ceases to be registered as a
clearing agency under the Exchange Act and a successor depositary is not
appointed by the Company within 90 days of such notice, (ii) the Company, at its
option, notifies the
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Trustee in writing that it elects to cause the issuance of the Debentures in
definitive form under this Indenture, (iii) an Event of Default has occurred and
is continuing and the Registrar has received a request from the Depositary or
(iv) in accordance with the rules and procedures of the Depositary and the
provisions of Section 2.08.
(c) Any beneficial interest in one of the Global Debentures that is
transferred to a person who takes delivery in the form of an interest in another
Global Debenture will, upon transfer, cease to be an interest in such Global
Debenture and become an interest in such other Global Debenture and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Debenture for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a Global Debenture to beneficial owners pursuant to paragraph (b)
of this Section 2.07, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of such Global Debenture in an
amount equal to the principal amount of the beneficial interest in such Global
Debenture to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more U.S. Physical Debentures or Offshore
Physical Debentures, as the case may be, of like tenor and amount.
(e) In connection with the transfer of the U.S. Global Debentures or
the Offshore Global Debentures, in whole, to beneficial owners pursuant to
paragraph (b) of this Section 2.07, the U.S. Global Debentures or Offshore
Global Debentures, as the case may be, shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the U.S. Global Debentures or
Offshore Global Debentures, as the case may be, an equal aggregate principal
amount of U.S. Physical Debentures or Offshore Physical Debentures, as the case
may be, of authorized denominations.
(f) Any U.S. Physical Debenture delivered in exchange for an interest
in the U.S. Global Debentures pursuant to paragraph (b), (d) or (e) of this
Section 2.07 shall, except as otherwise provided by paragraph (e) of Section
2.08, bear the legend regarding transfer restrictions applicable to the U.S.
Physical Debenture set forth in Section 2.02.
(g) Any Offshore Physical Debenture delivered in exchange for an
interest in the Offshore Global Debentures pursuant to paragraph (b), (d) or (e)
of this Section 2.07 shall, except as otherwise provided by paragraph (e) of
Section 2.08, bear the legend regarding transfer restrictions applicable to the
Offshore Physical Debenture set forth in Section 2.02.
(h) The registered holder of a Global Debenture may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through
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Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Debentures.
SECTION 2.08. Special Transfer Provisions. Unless and until a
Debenture is exchanged for an Exchange Debenture or otherwise sold in connection
with an effective Registration Statement pursuant to the Registration Rights
Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Debenture to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any
Debenture, whether or not such Debenture bears the Private Placement
Legend, if (x) the requested transfer is after the time period referred
to in Rule 144(k) under the Securities Act or (y) the proposed
transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit C hereto and (B) if the aggregate
principal amount of the Debentures being transferred is less than
$100,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Debentures, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) above
and (y) instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Debentures in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Debentures to be transferred,
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Debentures of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Debenture to a QIB
(excluding Non-U.S. Persons):
(i) If the Debenture to be transferred consists of (x) either
Offshore Physical Debentures prior to the removal of the Private
Placement Legend or U.S. Physical Debentures, the Registrar shall
register the transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of
Debenture stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Debenture stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Debenture for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has
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received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in the U.S. Global Debentures,
the transfer of such interest may be effected only through the book
entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Debenture to be transferred consists of U.S. Physical Debentures, upon
receipt by the Registrar of the documents referred to in paragraph (i)
above and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of U.S.
Global Debentures in an amount equal to the principal amount of the
U.S. Physical Debentures to be transferred, and the Trustee shall
cancel the U.S. Physical Debentures so transferred.
(c) Transfers of Interests in the Temporary Offshore Global Debentures.
The following provisions shall apply with respect to registration of any
proposed transfer of an interest in a Temporary Offshore Global Debentures:
(i) The Registrar shall register the transfer of any Debenture
(x) if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit D hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on the
form of Debenture stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Debenture stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Debenture for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon
receipt by the Registrar of the documents referred to in clause (i)(y)
above and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
U.S. Global Debentures in an amount equal to the principal amount of
the Temporary Offshore Global Debentures to be transferred, and the
Trustee shall decrease the amount of the Temporary Offshore Global
Debentures.
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(d) Transfers of Interests in the Permanent Offshore Global Debentures
or Unlegended Offshore Physical Debentures. The following provisions shall apply
with respect to any transfer of interests in Permanent Offshore Global
Debentures or unlegended Offshore Physical Debentures. The Registrar shall
register the transfer of any such Debenture without requiring any additional
certification.
(e) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any transfer of a Debenture to a Non-U.S. Person:
(i) Prior to the 41st day following the later of commencement
of the offering of the Debentures and the Issue Date, the Registrar
shall register any proposed transfer of a Debenture to a Non-U.S.
Person upon receipt of a certificate substantially in the form of
Exhibit D hereto from the proposed transferor.
(ii) On and after the 41st day following the later of
commencement of the offering of the Debentures and the Issue Date, the
Registrar shall register any proposed transfer to any Non-U.S. Person
if the Debenture to be transferred is a U.S. Physical Debenture or an
interest in U.S. Global Debentures, upon receipt of a certificate
substantially in the form of Exhibit D hereto from the proposed
transferor.
(iii) (a) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Debentures, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (ii) and (y) instructions in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of
the U.S. Global Debentures in an amount equal to the principal amount
of the beneficial interest in the U.S. Global Debentures to be
transferred, and (b) if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions given in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Offshore Global Debentures in an amount equal
to the principal amount of the U.S. Physical Debentures or the U.S.
Global Debentures, as the case may be, to be transferred, and the
Trustee shall cancel the Physical Debenture, if any, so transferred or
decrease the amount of the U.S. Global Debentures.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Debentures not bearing the Private Placement Legend, the
Registrar shall deliver Debentures that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Debentures bearing the
Private Placement Legend, the Registrar shall deliver only Debentures that bear
the Private Placement Legend unless either (i) the circumstances contemplated by
the fourth paragraph of Section 2.01 or (a)(i)(x) or (e)(ii) of this Section
2.08 exist or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee
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to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(g) General. By its acceptance of any Debenture bearing the Private
Placement Legend, each Holder of such a Debenture acknowledges the restrictions
on transfer of such Debenture set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Debenture only as
provided in this Indenture. The Registrar shall not register a transfer of any
Debenture unless such transfer complies with the restrictions on transfer of
such Debenture set forth in this Indenture. The Registrar shall be entitled to
receive and rely on written instructions from the Company verifying that such
transfer complies with such restrictions on transfer. In connection with any
transfer of Debentures, each Holder agrees by its acceptance of the Debentures
to furnish the Registrar or the Company such certifications, legal opinions or
other information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Debentures. If a mutilated Debenture is
surrendered to the Trustee or if the Holder claims that the Debenture has been
lost, destroyed or wrongfully taken, then, in the absence of notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall issue and the Trustee shall authenticate a
replacement Debenture of like tenor and principal amount and bearing a number
not contemporaneously outstanding; provided that the requirements of this
Section 2.09 are met. If required by the Company, an indemnity bond must be
furnished that is sufficient in the judgment of the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Debenture is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee in replacing a Debenture. In case any such
mutilated, lost, destroyed or wrongfully taken Debenture has become or is about
to become due and payable, the Company in its discretion may pay such Debenture
instead of issuing a new Debenture in replacement thereof.
Every replacement Debenture is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
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SECTION 2.10. Outstanding Debentures. Debentures outstanding at any
time are all Debentures that have been authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation and those
described in this Section 2.10 as not outstanding.
If a Debenture is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Debenture is held by a bona fide
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay Debentures payable
on that date, then on and after that date such Debentures cease to be
outstanding and interest on them shall cease to accrue.
A Debenture does not cease to be outstanding because the Company or one
of its Subsidiaries holds such Debenture, provided, however, that in determining
whether the Holders of the requisite principal amount of the outstanding
Debentures have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Debentures owned by the Company or any other
obligor upon the Debentures or any Subsidiaries of the Company or of such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Debentures which the Trustee has actual knowledge to be so owned shall be so
disregarded. Debentures so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and that
the pledgee is not the Company or any other obligor upon the Debentures or any
Subsidiaries of the Company or of such other obligor.
SECTION 2.11. Temporary Debentures. Until definitive Debentures are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Debentures. Temporary Debentures shall be substantially
in the form of definitive Debentures but may have insertions, substitutions,
omissions and other variations determined to be appropriate by the Officers
executing the temporary Debentures, as evidenced by their execution of such
temporary Debentures. If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the temporary
Debentures at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debentures of authorized denominations. Until so
exchanged, the temporary Debentures shall be entitled to the same benefits under
this Indenture as definitive Debentures.
SECTION 2.12. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Debentures previously authenticated and delivered
hereunder which the Company
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may have acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Debentures previously authenticated hereunder which the Company
has not issued and sold. Each Transfer Agent and Paying Agent shall forward to
the Trustee any Debentures surrendered to them for transfer, exchange or
payment. The Trustee shall cancel all Debentures surrendered for transfer,
exchange, payment or cancellation and shall destroy them in accordance with its
normal procedure.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Debentures may
use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and the
Company and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may
be, in notices of redemption or exchange as a convenience to Holders; provided
that any such notice shall state that no representation is made as to the
correctness of such numbers either as printed on the Debentures or as contained
in any notice of redemption or exchange and that reliance may be placed only on
the other identification numbers printed on the Debentures. The Company shall
promptly notify the Trustee of any change in "CUSIP", "CINS" or "ISIN" numbers
for the Debentures.
SECTION 2.14. Defaulted Interest. If the Company defaults in a payment
of interest on the Debentures, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date. A
special record date, as used in this Section 2.14 with respect to the payment of
any defaulted interest, shall mean the 15th day next preceding the date fixed by
the Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.15. Issuance of Additional Debentures. The Company may,
subject to Article Four of this Indenture and applicable law, issue additional
Debentures under this Indenture. The Debentures issued on the Closing Date and
any additional Debentures subsequently issued shall be treated as a single class
for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption. (a) The Debentures are redeemable,
at the Company's option, in whole or in part, at any time or from time to time,
on or after December 15, 2003 and prior to maturity, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's last
address, as it appears in the Security Register, at the following Redemption
Prices (expressed in percentages of principal amount thereof on the applicable
Redemption Date), plus accrued and unpaid interest to the Redemption
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Date (subject to the right of Holders of record on the relevant Regular Record
Date that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12-month period commencing December 15 of
the years set forth below:
Redemption
Year Price
---- -----------
2003 104.438%
2004 103.328
2005 102.219
2006 101.109
2007 and thereafter 100.000
(b) In addition, at any time and from time to time prior to December
15, 2001, the Company may, at its option, redeem up to 35% of the aggregate
principal amount of the Debentures originally issued with the proceeds of one or
more Equity Offerings, at a Redemption Price (expressed as a percentage of
principal amount) of 108.875%, plus accrued and unpaid interest to the
Redemption Date (subject to the rights of Holders of record on the relevant
Regular Record Date that is prior to the Redemption Date to receive interest due
on an Interest Payment Date); provided that (i) at least 65% of the aggregate
principal amount of Debentures issued under this Indenture remains outstanding
after each such redemption and (ii) any such redemption shall occur on or prior
to the date that is 90 days after receipt by the Company of the proceeds of an
Equity Offering. The Company shall effect such redemption on a pro rata basis.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
Debentures pursuant to Section 3.01, it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Debentures to be redeemed and
the clause of this Indenture pursuant to which redemption shall occur.
The Company shall give each notice provided for in this Section 3.02 in
an Officers' Certificate at least 45 days before the Redemption Date (unless a
shorter period shall be satisfactory to the Trustee).
SECTION 3.03. Selection of Debentures to Be Redeemed. If less than all
of the Debentures are to be redeemed at any time, the Trustee shall select the
Debentures to be redeemed in compliance with the requirements, as certified to
it by the Company, of the principal national securities exchange, if any, on
which the Debentures are listed or, in the absence of such requirements or if
the Debentures are not listed on a national securities exchange, on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem fair and appropriate; provided that no Debenture of $1,000 in
principal amount or less shall be redeemed in part.
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The Trustee shall make the selection from the Debentures outstanding
and not previously called for redemption. The Trustee may select for redemption
portions (equal to $1,000 in principal amount or any integral multiple thereof)
of Debentures that have denominations larger than $1,000 in principal amount.
Provisions of this Indenture that apply to Debentures called for redemption also
apply to portions of Debentures called for redemption. The Trustee shall notify
the Company and the Registrar promptly in writing of the Debentures or portions
of Debentures to be called for redemption.
SECTION 3.04. Notice of Redemption. With respect to any redemption of
Debentures pursuant to Section 3.01, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail to each Holder whose Debentures are to be redeemed at its
registered address.
The notice shall identify the Debentures to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of each Paying Agent;
(iv) that Debentures called for redemption must be
surrendered to a Paying Agent in order to collect
the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Debentures called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the Redemption Price plus accrued
interest to the Redemption Date upon surrender of the Debentures to a
Paying Agent;
(vi) that, if any Debenture is being redeemed in part, the
portion of the principal amount (equal to $1,000 in principal amount or
any integral multiple thereof) of such Debenture to be redeemed and
that, on and after the Redemption Date, upon surrender of such
Debenture, a new Debenture or Debentures in principal amount equal to
the unredeemed portion thereof will be reissued; and
(vii) that, if any Debenture contains a CUSIP, CINS or ISIN
number as provided in Section 2.13, no representation is being made as
to the correctness of the CUSIP, CINS or ISIN number either as printed
on the Debentures or as contained in the notice of redemption and that
reliance may be placed only on the other identification numbers printed
on the Debentures.
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At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders, the Company shall concurrently deliver to the Trustee an Officers'
Certificate stating that such notice has been given.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
redemption is mailed, Debentures called for redemption become due and payable on
the Redemption Date and at the Redemption Price. Upon surrender of any
Debentures to a Paying Agent, such Debentures shall be paid at the Redemption
Price, plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Debentures held by Holders to whom such notice was
properly given.
SECTION 3.06. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with its Paying Agent not later than
11:00 a.m. (New York City time) (or, if the Company is acting as its own Paying
Agent, shall segregate and hold in trust as provided in Section 2.05) money
sufficient to pay the Redemption Price of and accrued interest on all Debentures
to be redeemed on that date other than Debentures or portions thereof called for
redemption on that date that have been delivered by the Company to the Trustee
for cancellation.
SECTION 3.07. Payment of Debentures Called for Redemption. If notice
of redemption has been given in the manner provided above, the Debentures or
portion of Debentures specified in such notice to be redeemed shall become due
and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Debentures at the
Redemption Price and accrued interest to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Debentures), such Debentures shall cease to accrue interest.
Upon surrender of any Debenture for redemption in accordance with a notice of
redemption, such Debenture shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided that installments of interest whose stated maturity is on or
prior to the Redemption Date shall be payable to the Holders registered as such
at the close of business on the relevant Regular Record Date.
SECTION 3.08. Debentures Redeemed in Part. Upon surrender of any
Debenture that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver by
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mail to the Holder without service charge, a new Debenture equal in principal
amount to the unredeemed portion of such surrendered Debenture.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Debentures. The Company shall pay the
principal of, premium, if any, and interest on the Debentures on the dates and
in the manner provided in the Debentures and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date due
if the Trustee or the Paying Agents (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date money designated
for and sufficient to pay the installment, except that, at the option of the
Company, payment of interest may be made by check mailed to the address of each
Holder as such address is specified in the Security Register. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, an installment of principal, premium, if any, or interest shall be
considered paid on the due date if the entity acting as Paying Agent complies
with the last sentence of Section 2.05. As provided in Section 6.09, upon any
bankruptcy or reorganization procedure relative to the Company, the Trustee
shall serve as the Paying Agent, if any, for the Debentures.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
the rate per annum specified in the Debentures.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Debentures may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Debentures and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written
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notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company in the Borough of Manhattan, The City
of New York in accordance with Section 2.04.
SECTION 4.03. Fall-away Event. The Company's and its Restricted
Subsidiaries' obligations to comply with the provisions of this Indenture under
Sections 4.04, 4.05, 4.06 and 5.01 will terminate if and when the Debentures are
Investment Grade Status (a "Fall-away Event"); provided, however, that the
Company's and its Restricted Subsidiaries' obligations to comply with such
provisions shall be reinstated as to events occurring after such reinstatement
if the Debentures cease to have Investment Grade Status, subject to the terms,
conditions and obligations set forth in this Indenture, provided, further, that
no such Default or Event of Default shall be deemed to have arisen as a result
of such reinstatement or as a result of any action taken or omitted from being
taken during the period that the foregoing covenants were not in effect.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company will
not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, make any Restricted Payment if at the time of such
Restricted Payment and immediately after giving effect thereto:
(i) a Default or Event of Default shall have occurred and be
continuing; or
(ii) the Company is not able to incur $1.00 of additional
Indebtedness under the first paragraph of Section 4.05 of this
Indenture; or
(iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as
determined by the Board of Directors in good faith) exceeds the sum of
(a) (x) 100% of Consolidated EBITDA of the Company accrued subsequent
to May 27, 1998 to the most recent date for which financial information
is available to the Company (taken as one accounting period), less (y)
1.75 times Consolidated Interest Expense for the same period, plus (b)
100% of the aggregate net proceeds, including the fair market value of
property other than cash as determined by the Board of Directors in
good faith, received subsequent to the Issue Date by the Company from
any Person (other than a Restricted Subsidiary of the Company) from the
issuance and sale subsequent to the Issue Date of Qualified Capital
Stock of the Company (excluding (i) any net proceeds from issuances and
sales financed directly or indirectly using funds borrowed from the
Company or any Restricted Subsidiary of the Company, until and to the
extent such borrowing is repaid, but including the proceeds from the
issuance and sale of any securities convertible
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into or exchangeable for Qualified Capital Stock to the extent such
securities are so converted or exchanged and including any additional
proceeds received by the Company upon such conversion or exchange, (ii)
any net proceeds received from issuances and sales that are used to
consummate a transaction described in clause (2) of paragraph (b) below
and (iii) any net cash proceeds received from the issuance and sale of
Designated Preferred Stock), plus (c) without duplication of any amount
included in clause (iii)(b) above, 100% of the aggregate net proceeds,
including the fair market value of property other than cash (valued as
provided in clause (iii)(b) above), received by the Company as a
capital contribution subsequent to the Issue Date, plus (d) the greater
of (i) $100 million and (ii) 15% of the Total Assets of the Company and
its consolidated Subsidiaries as determined in accordance with GAAP as
of the date of the most recently prepared internal balance sheet of the
Company.
(b) Notwithstanding the foregoing, these provisions will not prohibit:
(1) the payment of any dividend or the making of any distribution within 60 days
after the date of its declaration if such dividend or distribution would have
been permitted on the date of declaration; (2) (A) the purchase, redemption or
other acquisition or retirement of any Capital Stock of the Company or any
warrants, options or other rights to acquire shares of any class of such Capital
Stock ("Retired Capital Stock") either (x) solely in exchange for shares of
Qualified Capital Stock or other warrants, options or rights to acquire
Qualified Capital Stock or (y) through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a Restricted Subsidiary of
the Company) of shares of Qualified Capital Stock or warrants, options or other
rights to acquire Qualified Capital Stock or (z) in the case of Disqualified
Capital Stock, solely in exchange for, or through the application of the net
proceeds of a substantially concurrent sale for cash (other than to a Restricted
Subsidiary of the Company) of, Disqualified Capital Stock (in each case,
"Refunding Capital Stock") and (B) the declaration and payment of dividends on
Refunding Capital Stock in an aggregate amount per year no greater than the
aggregate amount of dividends per annum that could have been paid on such
Retired Capital Stock pursuant to this covenant (other than this clause
(b)(2)(B)) immediately prior to such retirement; provided, however, that at the
time of the declaration of any such dividends, no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof;
(3) payments made pursuant to any merger, consolidation or sale of assets
effected in accordance with Article Five; provided, however, that no such
payment may be made pursuant to this clause (3) unless, after giving pro forma
effect to such transaction (and the incurrence of any Indebtedness in connection
therewith and the use of the proceeds thereof), the Company would be able to
incur $1.00 of additional Indebtedness under the first paragraph of Section 4.05
of this Indenture; (4)(A) the declaration and payment of dividends to holders of
any class or series of Designated Preferred Stock (other than Disqualified
Capital Stock) issued after the Issue Date or (B) the declaration and payment of
dividends on Refunding Capital Stock in excess of the dividends declarable and
payable thereon pursuant to clause (2)(B) above; provided, however, in either
case, after giving effect to such issuance or declaration on a pro forma basis,
the Company and its Restricted Subsidiaries would
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be able to incur $1.00 of Indebtedness under the first paragraph of Section 4.05
of this Indenture; (5) repurchases of warrants, options or rights to acquire
Capital Stock deemed to occur upon exercise of warrants, options or rights to
acquire Capital Stock if such warrants, options or rights represent a portion of
the exercise price of such warrants, options or rights; (6) the declaration and
payment of dividends to holders of any class or series of Disqualified Capital
Stock or the declaration and payment of dividends to holders of Preferred Stock
of Restricted Subsidiaries, in each case, issued in accordance with Section 4.05
of this Indenture; (7) commencing on the six month anniversary of the Issue
Date, a Restricted Payment to pay for the repurchase, retirement or other
acquisition or retirement for value of Equity Interests of the Company in
existence on the Issue Date and which are not held by KKR, Xxxxx Muse or any of
their respective affiliates on the Issue Date (including any Capital Stock
issued in respect of such Capital Stock as a result of a stock split,
recapitalization, merger, combination, consolidation or otherwise, but excluding
any Equity Interests issued pursuant to any management equity plan or stock
option plan or similar agreement); provided that notwithstanding the foregoing,
the Company and its Restricted Subsidiaries shall be permitted to make
Restricted Payments under this clause (7) only if after giving effect thereto,
the Company would be permitted to incur at least $1.00 of additional
Indebtedness under the first paragraph of Section 4.05 of this Indenture; and
(8) dividends on the Company's Capital Stock (other than Disqualified Capital
Stock) after the first underwritten Equity Offering in an annual amount not to
exceed 6.0% of the gross proceeds (before deducting underwriting discounts and
commissions and other fees and expenses of the offering) received from shares of
Capital Stock (other than Disqualified Capital Stock) sold for the account of
the issuer thereof (and not for the account of any stockholder) in such initial
underwritten Equity Offering; provided, however, that in the case of clauses
other than clauses (1) and (2)(A), no Event of Default shall have occurred or be
continuing at the time of such payment or as a result thereof. In determining
the aggregate amount of Restricted Payments made subsequent to the Issue Date,
amounts expended pursuant to clauses (1), 2(B), (3), (4) and (8) shall be
included in such calculation.
To the extent the issuance of Capital Stock and the receipt of capital
contributions are applied to permit the issuance of Indebtedness pursuant to
clause (v) of the definition of Permitted Indebtedness, the issuance of such
Capital Stock and the receipt of such capital contributions shall not be applied
to permit payments under this Section 4.04.
SECTION 4.05. Limitation on the Incurrence of Additional Indebtedness
and Issuance of Capital Stock. (a) The Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness) and the Company will not issue
any Disqualified Capital Stock and its Restricted Subsidiaries will not issue
any Preferred Stock (except Preferred Stock issued to the Company or a
Restricted Subsidiary of the Company so long as it is so held); provided,
however, that the Company and its Restricted Subsidiaries may incur Indebtedness
or
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issue shares of such Capital Stock if, in either case, the Company's Leverage
Ratio at the time of incurrence of such Indebtedness or the issuance of such
Capital Stock, as the case may be, after giving pro forma effect to such
incurrence or issuance as of such date and to the use of proceeds therefrom is
less than 7:1.
(b) The Company will not incur or suffer to exist, or permit any of its
Restricted Subsidiaries to incur or suffer to exist, any Obligations with
respect to an Unrestricted Subsidiary that would violate the provisions set
forth in the definition of Unrestricted Subsidiary set forth in Section 1.01.
(c) For purposes of determining compliance with this Section 4.05, in
the event that an item of Permitted Indebtedness meets the criteria of more than
one of the categories of Permitted Indebtedness or is entitled to be incurred
pursuant to the first paragraph of this Section 4.05, the Company shall, in its
sole discretion, classify such item of Indebtedness in any manner that complies
with this Section 4.05 and such item of Indebtedness will be treated as having
been incurred pursuant to only one of the clauses of the definition of Permitted
Indebtedness or pursuant to the first paragraph hereof except as otherwise set
forth in clause (v) of the definition of Permitted Indebtedness. Accrual of
interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.05.
SECTION 4.06. Limitations on Transactions with Affiliates. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related
transactions involving aggregate payments or consideration in excess of $5.0
million (including, without limitation, the purchase, sale, lease, contribution
or exchange of any property or the rendering of any service) with or for the
benefit of any of its or any of its Restricted Subsidiary's Affiliates (other
than transactions between the Company and a Restricted Subsidiary of the Company
or among Restricted Subsidiaries of the Company) (an "Affiliate Transaction"),
other than Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction on an
arm's-length basis from a person that is not an Affiliate; provided, however,
that for a transaction or series of related transactions involving value of
$10.0 million or more, such determination will be made in good faith by a
majority of members of the Board of Directors and by a majority of the
disinterested members of the Board of Directors, if any. The foregoing
restrictions will not apply to (1) reasonable and customary directors' fees,
indemnification and similar arrangements and payments thereunder; (2) any
obligations of the Company under any employment agreement, noncompetition or
confidentiality agreement with any officer of the Company, as in effect on the
Issue Date (provided that each amendment of any of the foregoing agreements
shall be subject to the limitations of this covenant); (3) any Restricted
Payment permitted to be made pursuant to Section 4.04 of this Indenture; (4) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
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options and stock ownership plans approved by the Board of Directors; (5) loans
or advances to employees in the ordinary course of business of the Company or
any of its Restricted Subsidiaries consistent with past practices; (6) payments
made in connection with the Transactions, including, without limitation, fees
payable to and expenses of Xxxxx Muse and KKR; (7) payments by the Company or
any of its Restricted Subsidiaries to KKR or Xxxxx Muse or their respective
Affiliates made for any financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities, including,
without limitation, in connection with acquisitions or divestitures, which
payments are approved by a majority of the Board of Directors in good faith; (8)
transactions in which the Company or any of its Restricted Subsidiaries, as the
case may be, delivers to the Trustee a letter from an Independent Financial
Advisor stating that such transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view or that is on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a person that is not an Affiliate; (9)
the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements
which it may enter into thereafter; provided, however, that the existence of, or
the performance by the Company or any of its Restricted Subsidiaries of
obligations under any future amendment to any such existing agreement or under
any similar agreement entered into after the Issue Date shall only be permitted
by this clause (8) to the extent that the terms (taken as a whole) of any such
amendment or new agreement are not otherwise disadvantageous to the Holders in
any material respect; (10) transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services, in each case in the ordinary course
of business and otherwise in compliance with the terms of this Indenture which
are fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors or the management thereof, or are on
terms (taken as a whole) at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party; (11) any agreement as in
effect as of the Issue Date or any amendment thereto (so long as any such
amendment, taken as a whole, is not disadvantageous to the Holders in any
material respect) or any transaction contemplated thereby; and (12) any
purchases of Capital Stock (other than Disqualified Capital Stock) of the
Company by Affiliates thereof.
SECTION 4.07. Repurchase of Debentures upon a Change of Control. (a)
Upon the occurrence of a Change of Control, each Holder shall have the right to
require that the Company purchase all or a portion of such Holder's Debentures
in cash pursuant to the offer described in paragraph (c) of this Section 4.07
(the "Change of Control Offer"), at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase.
(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following the date on which the Company becomes aware that
a Change of Control has occurred,
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if the purchase of the Debentures would violate or constitute a default under
any other Indebtedness of the Company, then the Company shall, to the extent
needed to permit such purchase of Debentures, either (i) repay all such
Indebtedness and terminate all commitments outstanding thereunder or (ii) obtain
the requisite consents, if any, under such Indebtedness to permit the purchase
of the Debentures as provided below. The Company will first comply with the
covenant in the preceding sentence before it will be required to make the Change
of Control Offer or purchase the Debentures pursuant to the provisions of
paragraphs (c) and (d) below.
(c) Within 30 days following the date on which the Company becomes
aware that a Change of Control has occurred, the Company shall send, by
first-class mail, postage prepaid, a notice to each Holder, which notice shall
govern the terms of the Change of Control Offer. Such notice shall state, among
other things, the purchase date, which must be no earlier than 30 days nor later
than 60 days from the date such notice is mailed, other than as may be required
by law (the "Change of Control Payment Date"). Holders electing to have any
Debentures purchased pursuant to a Change of Control Offer must surrender such
Debentures to the Transfer Agent and/or Paying Agent for the Debentures at the
addresses specified in the notice prior to the close of business on the business
day prior to the Change of Control Payment Date. The Company will not be
required to make a Change of Control Offer pursuant to this covenant if a third
party makes a Change of Control Offer in compliance with this Section 4.07 and
repurchases all Debentures validly tendered and not withdrawn under such Change
of Control Offer.
(d) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act, to the extent applicable in connection with the purchase of
Debentures pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Indenture, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations described
in this Indenture by virtue hereof.
SECTION 4.08. Existence. Subject to Articles Four and Five of this
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and the
rights (whether pursuant to charter, partnership certificate, agreement, statute
or otherwise), licenses and franchises of the Company and each Restricted
Subsidiary; provided that the Company shall not be required to preserve any such
right, license or franchise, or the existence of any Restricted Subsidiary, if
the maintenance or preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.09. Payment of Taxes and Other Claims . The Company will pay
or discharge and shall cause each of its Subsidiaries to pay or discharge, or
cause to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and
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governmental charges levied or imposed upon (a) the Company or any such
Subsidiary, (b) the income or profits of any such Subsidiary which is a
corporation or (c) the property of the Company or any such Subsidiary and (ii)
all material lawful claims for labor, materials and supplies that, if unpaid,
might by law become a lien upon the property of the Company or any such
Subsidiary; provided that the Company shall not be required to pay or discharge,
or cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which, if necessary, adequate reserves have been
established.
SECTION 4.10. Maintenance of Properties and Insurance. The Company
will cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section 4.10 shall prevent the Company or any Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or any such Restricted Subsidiary, as the case may
be, is then conducting business.
SECTION 4.11. Notice of Defaults. In the event that any Officer
becomes aware of any Default or Event of Default, the Company shall promptly
deliver to the Trustee an Officers' Certificate specifying such Default or Event
of Default.
SECTION 4.12. Compliance Certificates. (a) The Company shall deliver
to the Trustee, within 45 days after the end of each fiscal quarter (120 days
after the end of the last fiscal quarter of each year), an Officers' Certificate
stating whether or not the signers know of any Default or Event of Default that
occurred during such fiscal quarter. In the case of the Officers' Certificate
delivered within 120 days after the end of the Company's fiscal year, such
certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company that
a review has been conducted of the activities of the
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Company and its Restricted Subsidiaries and the Company's and its Restricted
Subsidiaries' performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For purposes of this
Section 4.12, such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture. If any of the
Officers signing such certificate has knowledge of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default and
its status. The first certificate to be delivered pursuant to this Section
4.12(a) shall be for the first fiscal quarter beginning after the execution of
this Indenture.
(b) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, beginning with the fiscal year in which this Indenture
was executed, a certificate signed by the Company's independent certified public
accountants stating (i) that their audit examination has included a review of
the terms of this Indenture and the Debentures as they relate to accounting
matters, (ii) that they have read the most recent Officers' Certificate
delivered to the Trustee pursuant to paragraph (a) of this Section 4.12 and
(iii) whether, in connection with their audit examination, anything came to
their attention that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or conditions of Article
Four and Section 5.01 of this Indenture as they pertain to accounting matters
and, if any Default or Event of Default has come to their attention, specifying
the nature and period of existence thereof; provided that such independent
certified public accountants shall not be liable in respect of such statement by
reason of any failure to obtain knowledge of any such Default or Event of
Default that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards in effect at
the date of such examination.
SECTION 4.13. Commission Reports and Reports to Holders. Whether or
not the Company is then required to file reports with the Commission, the
Company shall file with the Commission, to the extent such submissions are
accepted for filing, all such reports and other information as it would be
required to file with the Commission by Sections 13(a) or 15(d) under the
Exchange Act if it were subject thereto. The Company shall supply the Trustee
and each Holder or shall supply to the Trustee for forwarding to each such
Holder, without cost to such Holder, copies of such reports and other
information within 15 days after the date it would have been required to file
such reports or other information with the Commission had it been subject to
such Sections. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.14. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Debentures as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the
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performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.15. Limitation on Layering. The Company will not incur any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Senior Indebtedness unless such Indebtedness is Senior
Subordinated Indebtedness or is contractually subordinated in right of payment
to all Senior Subordinated Indebtedness (including the Debentures).
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not, in a
single transaction or a series of related transactions, consolidate with or
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of the Company's assets determined on a
consolidated basis for the Company to another Person or adopt a plan of
liquidation unless (i) either (1) the Company is the Surviving Person or (2) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety or,
in the case of a plan of liquidation, the Person to which assets of the Company
have been transferred, shall be a corporation, partnership, limited liability
company or trust organized and existing under the laws of the United States or
any State thereof or the District of Columbia; (ii) such Surviving Person shall
assume all of the obligations of the Company under the Debentures and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; (iii) immediately after giving effect to such transaction and
the use of the proceeds therefrom (on a pro forma basis, including giving effect
to any Indebtedness incurred or anticipated to be incurred in connection with
such transaction and the use of the proceeds therefrom), (1) no Default or Event
of Default shall have occurred and be continuing and (2) either (x) such
Surviving Person shall be able to incur $1.00 of additional Indebtedness under
the first paragraph of Section 4.05 of this Indenture or (y) the Leverage Ratio
for such Surviving Person would be less than the Leverage Ratio of the Company
immediately prior to such transaction; and (iv) the Company has delivered to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer complies with this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties and assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the properties or assets of the Company, will be deemed to be the transfer of
all or
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substantially all of the properties and assets of the Company. Notwithstanding
the foregoing clauses (ii) and (iii), (1) any Restricted Subsidiary of the
Company may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (2) the Company may merge with an
Affiliate thereof organized solely for the purpose of reorganizing the Company
in another jurisdiction in the U.S. to realize tax or other benefits.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and the Company shall be discharged from its Obligations
under the Debentures; provided that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the
Debentures in the case of a lease of all or substantially all of its property
and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . Any of the following events shall
constitute an "Event of Default" hereunder:
(i) the failure to pay interest on the Debentures when the
same becomes due and payable and the Default continues for a period of
30 days (whether or not such payment is prohibited by the provisions of
Article Ten);
(ii) the failure to pay principal of or premium, if any, on
any Debentures when such principal or premium, if any, becomes due and
payable, at maturity, upon redemption or otherwise (whether or not such
payment is prohibited by the provisions of Article Ten);
(iii) a default in the observance or performance of any other
covenant or agreement contained in the Debentures or this Indenture,
which default continues for a period of 60 days after the Company
receives written notice thereof specifying the default from the Trustee
or holders of at least 30% in aggregate principal amount of outstanding
Debentures;
(iv) the failure to pay at the final stated maturity (after
giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of
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any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any other
such Indebtedness in default for failure to pay principal at the final
stated maturity (giving effect to any extensions thereof) or which has
been accelerated, aggregates $20 million or more at any time;
(v) one or more judgments in an aggregate amount in excess of
$20 million (which are not covered by insurance as to which the insurer
has not disclaimed coverage) being rendered against the Company or any
of its Significant Restricted Subsidiaries and such judgment or
judgments remain undischarged or unstayed for a period of 60 days after
such judgment or judgments become final and nonappealable;
(vi) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
Significant Restricted Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law for relief of
debtors now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Restricted
Subsidiaries or for all or substantially all of the property and assets
of the Company or any of its Significant Restricted Subsidiaries or (C)
the winding up or liquidation of the affairs of the Company or any of
its Significant Restricted Subsidiaries and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(vii) the Company or any of its Significant Restricted
Subsidiaries (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law for relief of debtors now
or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or any of its Significant Restricted Subsidiaries or for all or
substantially all of the property and assets of the Company or any of
its Significant Restricted Subsidiaries or (C) effects any general
assignment for the benefit of creditors.
SECTION 6.02. Acceleration. Upon the occurrence of an Event of Default
(other than an Event of Default specified in clause (vi) or (vii) of Section
6.01 that occurs with respect to the Company), the Trustee may, and the Trustee
upon the request of the Holders of 30% in principal amount of the outstanding
Debentures shall, or the Holders of at least 30% in principal amount of
outstanding Debenture may, declare the principal of all the Debentures, together
with all accrued and unpaid interest and premium, if any, due and payable by
notice in writing to the Company and the Trustee specifying the respective Event
of Default and that it is a "notice of acceleration" (the "Acceleration
Notice"). Upon such a declaration of acceleration, such principal, premium, if
any, and accrued interest (i) shall be immediately due and payable or (ii) if
there are any amounts outstanding under the Senior Credit Facilities, will
become due and payable upon the first to occur of an acceleration under the
Senior Credit Facilities or five Business Days after receipt by the Company and
the agent under the Senior Credit Facilities of
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such Acceleration Notice (unless all Events of Default specified in such
Acceleration Notice have been cured or waived). If an Event of Default specified
in clauses (vi) through (vii) of Section 6.01 occurs with respect to the
Company, the principal of, premium, if any, and accrued interest on the
Debentures then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such declaration or occurrence of acceleration, but
before a judgment or decree for the payment of the money due has been obtained
by the Trustee, the Holders of at least a majority in principal amount of the
outstanding Debentures by written notice to the Company and to the Trustee, may
rescind and annul a declaration or occurrence of acceleration and its
consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and (ii) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and overdue payments of
principal which has become due otherwise than by such declaration of
acceleration, at the rate prescribed therefor by such Debentures, (b) all
existing Defaults and Events of Default, other than the non-payment of the
principal of, premium, if any, and accrued interest on the Debentures that have
become due solely by such declaration of acceleration, have been cured or
waived, (c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction and (d) in the event of the cure or waiver of a
Default or Event of Default of the type described in clauses (vi) or (vii) of
Section 6.01, the Trustee has received an Officers' Certificate and Opinion of
Counsel that such Default or Event of Default has been cured or waived.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in principal amount of the outstanding Debentures shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Debentures or to enforce the
performance of any provision of the Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount of the
outstanding Debentures, by notice to the Trustee, may waive an existing Default
or Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any Debenture as specified in
clause (i) or (ii) of Section 6.01 or in respect of a covenant or provision of
this Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Debenture affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any
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right consequent thereto. In the event of any Event of Default specified in
clauses (iv), (vi) or (vii) of Section 6.01, such Event of Default and all
consequences thereof (including without limitation any acceleration or resulting
payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or Holders of the Debentures, if within 60
days after such Event of Default arose (x) the Indebtedness that is the basis
for such Event of Default has been discharged or (y) the Holders of such
Indebtedness have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default, or (z) if the Default that is
the basis for such Event of Default has been cured.
SECTION 6.05. Control by Majority. The Holders of at least a majority
in aggregate principal amount of the outstanding Debentures may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided that
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Debentures not joining in the giving of such direction; and provided
further that the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Debentures.
SECTION 6.06. Limitation on Suits. A Holder may not institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Debentures, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) the Holder has previously given the Trustee written notice
of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Debentures shall have made a written request to the
Trustee to pursue such remedy;
(iii) such Holder or Holders offer the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liability or
expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Debentures do not give
the Trustee a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.06,
the Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the
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required aggregate principal amount of outstanding Debentures have concurred in
any request or direction of the Trustee to pursue any remedy available to the
Trustee or the Holders with respect to this Indenture or the Debentures or
otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Debenture to
receive payment of the principal of, premium, if any, or interest on, such
Debenture or to bring suit for the enforcement of any such payment, on or after
the due date expressed in the Debentures, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in clause (i) or (ii) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor of the Debentures for the whole amount of principal, premium, if any,
and accrued interest remaining unpaid, together with interest on overdue
principal, premium, if any, and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the rate
specified in the Debentures, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Debentures), its creditors or its
property and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Debentures or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures or
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the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to the holders of Senior Indebtedness, and as to the
extent required by Article Ten;
Third: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest on the Debentures in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debentures for
principal, premium, if any, and interest, respectively; and
Fourth: to the Company or any other obligors of the
Debentures, as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
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 may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
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 principal amount of the
outstanding Debentures.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Company, Trustee and the Holders shall continue as though no
such proceeding had been instituted.
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SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Debentures in Section 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections
315(a) through (d):
(i) the Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed in good faith by it to be genuine and to
have been signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee
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shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(v) 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 that the Trustee's conduct does not
constitute negligence or bad faith;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(vii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or
attorney at the sole cost of the Company;
(viii) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(ix) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
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(x) the Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a Default is received by the Trustee at its Corporate Trust
Office, and such notice references the Debentures and this Indenture.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Debentures
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the
Debentures, (ii) shall not be accountable for the Company's use or application
of the proceeds from the Debentures and (iii) shall not be responsible for any
statement in the Debentures other than its certificate of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of
Default occurs and is continuing and if such Default or Event of Default is
known to the Trustee, the Trustee shall mail to each Holder in the manner and to
the extent provided in TIA Section 313(c) notice of the Default or Event of
Default within 45 days after it occurs, unless such Default or Event of Default
has been cured; provided, however, that, except in the case of a Default in the
payment of the principal of, premium, if any, or interest on any Debenture, the
Trustee shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
December 1, beginning with December 1, 1999, the Trustee shall mail to each
Holder as provided in TIA Section 313(c) a brief report dated as of such
December 1, if required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services hereunder. The compensation of the Trustee 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 reasonable disbursements, expenses
and advances incurred or made by the Trustee in the administration of its duties
hereunder without negligence, willful misconduct or bad faith on its part. Such
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disubrsements, expenses and advances shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence,
wilful misconduct or bad faith on its part in connection with the acceptance or
administration of this Indenture and its duties under this Indenture and the
Debentures, including the costs and expenses of defending itself against any
claim or liability and of complying with any process served upon it or any of
its officers in connection with the exercise or performance of any of its powers
or duties under this Indenture and the Debentures. 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 of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel.
The obligations of the Company under this Section 7.07 shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article Ten. To
secure the Company's payment obligations in this Section 7.07, the Trustee shall
have a lien prior to the Debentures on all money or property held or collected
by the Trustee, in its capacity as Trustee, except money or property held in
trust to pay principal of, premium, if any, and interest on particular
Debentures.
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in clauses (vi) through (vii) of Section 6.01,
the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Debentures may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the consent of the Company. The Company may remove the
Trustee if: (i) the Trustee is no longer eligible under Section 7.10; (ii) the
Trustee is adjudged
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a bankrupt or an insolvent; (iii) a receiver or other public officer takes
charge of the Trustee or its property; or (iv) the Trustee becomes incapable of
acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Debentures may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Debentures may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder and to the
administrative agent under the Senior Credit Facilities. No successor Trustee
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
If the Trustee is no longer eligible under Section 7.10 or shall fail
to comply with TIA Section 310(b), any Holder who satisfies the requirements of
TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 7.08, the Trustee shall resign immediately in the manner and with
the effect provided in this Section.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligation under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee
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with the same effect as if the successor Trustee had been named as the Trustee
herein, provided such corporation shall be otherwise qualified and eligible
under this Article.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition that is subject to the requirements
of applicable Federal or state supervising or examining authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in this Article.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Debentures and this Indenture if:
(i) all Debentures previously authenticated and delivered
(other than destroyed, lost or stolen Debentures that have been
replaced or Debentures that are paid pursuant to Section 4.01 or
Debentures for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Company, as provided in
Section 8.05) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder; or
(ii) (A) the Debentures mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money, U.S. Government
Obligations or a combination thereof sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment of any interest thereon, to pay
principal, premium, if any, and interest on the Debentures to maturity
or redemption, as the case may be, and to pay all other sums payable by
it hereunder, (C) no Default or Event of Default with respect to the
Debentures
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shall have occurred and be continuing on the date of such deposit, (D)
such deposit will not result in a breach or violation of, or constitute
a Default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound and (E) the
Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the
Debentures are no longer outstanding. Thereafter, only the Company's obligations
in Sections 7.07, 8.04 and 8.05 and Article Ten (with respect to payments in
respect of Debenture Obligations other than with the assets held in trust as
described in clause (ii) above) shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under the Debentures and this Indenture except for
those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Debentures on the date of the deposit referred to in clause (A)
of this Section 8.02, and the provisions of this Indenture will no longer be in
effect with respect to the Debentures, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same if:
(A) with reference to this Section 8.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Debentures, and dedicated solely to,
the benefit of the Holders, in and to (1) money in an amount, (2) U.S.
Government Obligations that, through the payment of interest, premium,
if any, and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (A), money in an amount or (3) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding
Debentures on the stated maturity of such principal or interest or any
applicable Redemption Date selected by the Company; provided that the
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Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the
Debentures;
(B) the Company has delivered to the Trustee (1) either (x) an
Opinion of Counsel to the effect that Holders will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had
not been exercised, which Opinion of Counsel shall be based upon (and
accompanied by a copy of) a ruling of the Internal Revenue Service
directed to the Company to the same effect unless there has been a
change in applicable federal income tax law after the Closing Date such
that a ruling is no longer required or (y) a ruling directed to the
Company received from the Internal Revenue Service to the same effect
as the aforementioned Opinion of Counsel and (2) an Opinion of Counsel
to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and that after the passage
of 123 days following the deposit (except, with respect to any trust
funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute, provided, that in
delivering any such Opinion of Counsel, such counsel shall be entitled
to rely upon the statements of experts as to the solvency of the
Company, and either (I) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (a) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
except for the effect of Section 552(b) of the United States Bankruptcy
Code on interest on the trust funds accruing after the commencement of
a case under such statute and (b) the Holders will be entitled to
receive adequate protection of their interests in such trust funds if
such trust funds are used in such case or proceeding;
(C) immediately after giving effect to such deposit, on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company or
any
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of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound and is permitted by Article Ten;
(D) if the Debentures are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Debentures will not be delisted as a
result of such deposit, defeasance and discharge; and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 have been complied with.
Notwithstanding the foregoing, the Company's obligations in Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 8.04,
8.05, 8.06 and the rights, powers, trusts, duties and immunities of the Trustee
hereunder and Article Ten (with respect to payments in respect of Debenture
Obligations other than with the assets held in trust as described in this
Section 8.02) shall survive until the Debentures are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive. If and when a ruling from the Internal Revenue Service or an Opinion of
Counsel referred to in clause (B)(1) of this Section 8.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance of the
Company's obligations under Section 4.01, then the Company's obligations under
such Section 4.01 shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent provided
for herein relating to the defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Debentures and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Company may omit
to comply with any term, provision or condition set forth in clause (iii) of
Section 5.01, the proviso in Section 4.03 and Sections 4.04 through 4.07, 4.13
and 4.15 and clauses (iii) through (vii) of Section 6.01 shall be deemed not to
be Events of Default and Article Ten shall not apply to the money and/or U.S.
Government Obligations held by the trust referred to in clause (i) below, in
each case with respect to the outstanding Debentures if:
(i) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of,
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premium, if any, and interest, if any, on the Debentures, and dedicated
solely to, the benefit of the Holders, in and to (A) money in an
amount, (B) U.S. Government Obligations that, through the payment of
interest, premium, if any, and principal in respect thereof in
accordance with their terms, will provide, not later than one day
before the due date of any payment referred to in this clause (i),
money in an amount or (C) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of, premium, if
any, and interest on the outstanding Debentures on the stated maturity
of such principal or interest or on any applicable Redemption Date
selected by the Company; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal, premium, if
any, and interest with respect to the Debentures;
(ii) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (B) after the
passage of 123 days following the deposit (except, with respect to any
trust funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute, provided, that in
delivering any such Opinion of Counsel, such counsel shall be entitled
to rely upon the statements of experts as to the solvency of the
Company, and either (1) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (x) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
(except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute) and (y) the Holders will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding,
(C) the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred and (D) the
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Trustee, for the benefit of the Holders, has a valid first-priority
security interest in the trust funds;
(iii) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound and is permitted by Article Ten;
(iv) if the Debentures are then listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Debentures will not be
delisted as a result of such deposit, defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Debentures and this Indenture to the payment
of principal of, premium, if any, and interest on the Debentures; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for the payment of principal, premium, if
any, or interest that remains unclaimed for two years; provided that the Trustee
or Paying Agent before being required to make any payment may cause to be
published at the expense of the Company once in a newspaper of general
circulation in The City of New York, or mail to each Holder entitled to such
money at such Holder's address (as set forth in the Security Register) notice
that such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.01, 8.02 or 8.03, as the case may be, 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 Debentures shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02 or
8.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the
Company has made any payment of principal of, premium, if any, or interest on
any Debentures because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Debentures to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when authorized
by a resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend or supplement this
Indenture or the Debentures without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(5) to provide for uncertificated Debentures in addition to or
in place of certificated Debentures;
(6) to add one or more subsidiary guarantees on the terms
required by this Indenture; or
(7) to make any change that, in the good faith opinion of the
Board of Directors as evidenced by a Board Resolution, does not
materially and adversely affect the rights of any Holder.
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SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend this Indenture and the Debentures with the
written consent of the Holders of a majority in aggregate principal amount of
the Debentures then outstanding, and the Holders of a majority in aggregate
principal amount of the Debentures then outstanding by written notice to the
Trustee may waive future compliance by the Company with any provision of this
Indenture or the Debentures.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) reduce the amount of Debentures whose holders must consent
to an amendment;
(ii) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Debentures;
(iii) reduce the principal of or change the fixed maturity of
any Debentures, or change the fixed maturity of any Debentures, or
change the date on which any Debentures may be subject to redemption or
repurchase, or reduce the redemption or repurchase price therefor;
(iv) make any Debentures payable in money other than that
stated in the Debentures and the Indenture;
(v) make any change in provisions of the Indenture protecting
the right each Holder of a Debenture to receive payment of, premium on
and interest on such Debenture on or after the due date thereof or to
bring suit to enforce such payment or permitting Holders of a majority
in principal amount of Debentures to waive a Default or Event of
Default; or
(vi) after the Company's obligation to purchase Debentures
arises under Section 4.07, amend, modify or change the obligation of
the Company to make or consummate a Change of Control Offer or modify
any of the provisions or definitions with respect to any such offer.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Debenture or portion of a Debenture
that evidences the same debt as the Debenture of the consenting Holder, even if
notation of the consent is not made on any Debenture. However, any such Holder
or subsequent Holder may revoke the consent as to its Debenture or portion of
its Debenture. Such revocation shall be effective only if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver shall become effective on
receipt by the Trustee of written consents from the Holders of the requisite
percentage in principal amount of the outstanding Debentures.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the
second paragraph of Section 9.02, the amendment or waiver shall bind each Holder
who has consented to it and every subsequent Holder of a Debenture that
evidences the same indebtedness as the Debenture of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Debentures. If an amendment,
supplement or waiver changes the terms of a Debenture, the Trustee may require
the Holder to deliver such Debenture to the Trustee. At the Company's expense,
the Trustee may place an appropriate notation on the Debenture about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Debenture thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Debenture
shall issue and the Trustee shall authenticate a new Debenture that reflects the
changed terms. Failure to make the appropriate notation, or issue a new
Debenture, shall not affect the validity and effect of such amendment,
supplement or waiver.
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SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Company. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.
ARTICLE TEN
SUBORDINATION OF DEBENTURES
SECTION 10.01. Debentures Subordinated to Senior Indebtedness. The
Company and the Trustee each covenants and agrees, and each Holder, by its
acceptance of a Debenture, likewise covenants and agrees that all Debentures
shall be issued subject to the provisions of this Article Ten; and each Person
holding any Debenture, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees that Debenture Obligations shall, to the
extent and in the manner set forth in this Article Ten, be subordinated in right
of payment to the prior payment in full, in cash, of all existing and future
Senior Indebtedness, including, without limitation, the Company's obligations
under the Senior Credit Facilities (including any interest accruing on or
subsequent to, or which would have accrued but for the occurrence of, an event
specified in Sections 6.01(vi) and 6.01(vii) of this Indenture, whether or not
such interest is an allowed claim enforceable against the debtor under the
United States Bankruptcy Code).
SECTION 10.02. No Payment on Debentures in Certain Circumstances. (a)
No direct or indirect payment by or on behalf of the Company of Debenture
Obligations (other than with the money, securities or proceeds held under any
defeasance trust established in accordance with this Indenture), whether
pursuant to the terms of the Debentures or upon acceleration or otherwise, shall
be made if (i) any Senior Indebtedness is not paid when due or (ii) any other
default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
the default has been cured or waived and/or any such acceleration has been
rescinded or such Senior Indebtedness has been paid; provided, however, that the
Company may pay any Debenture Obligation without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment from the
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Representative of the Senior Indebtedness with respect to which either of the
events set forth in clause (i) or (ii) above has occurred and is continuing.
(b) During the continuance of any other event of default with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof may
be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, upon receipt by the Trustee with a copy to the Company of written
notice from the trustee or other representative for the holders of such
Designated Senior Indebtedness (or the holders of at least a majority in
principal amount of such Designated Senior Indebtedness then outstanding
specifying an election to effect a Payment Blockage Period (as defined below) (a
"Blockage Notice")), no payment of Debenture Obligations (other than with the
money, securities or proceeds held under any defeasance trust established in
accordance with this Indenture) may be made by or on behalf of the Company and
except that holders of any Debenture Obligation may receive (i) Qualified
Capital Stock issued by the Company to pay interest on the Debentures or issued
in exchange for the Debentures, (ii) securities substantially identical to the
Debentures issued by the Company in payment of interest accrued thereon or (iii)
securities issued by the Company which are subordinated to Senior Indebtedness
at least to the same extent as the Debentures and having a Weighted Average Life
to Maturity at least equal to the remaining Weighted Average Life to Maturity of
the Debentures) may be made for a period (a "Payment Blockage Period")
commencing on the date of receipt of such notice and ending 179 days thereafter
(or earlier if such Payment Blockage Period shall be terminated (i) by written
notice to the Trustee with a copy to the Company from such trustee of, or other
Representatives who gave such notice, (ii) because the default giving rise to
such Blockage Notice has been cured or waived or is no longer continuing or
(iii) because such Designated Senior Indebtedness has been repaid in full).
Notwithstanding the provisions described in the immediately preceding sentence,
but subject to the provisions of paragraphs (a) and (c) of this Section 10.02,
the Company may resume payments on the Debentures after the end of such Payment
Blockage Period. Not more than one Payment Blockage Period may be commenced with
respect to the Debentures during any period of 360 consecutive days,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period. However, if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness (other than the agent under the Senior Credit Facilities), the
agent under the Senior Credit Facilities may give another Blockage Notice within
such period. In no event, however, may the total number of days during which any
Payment Blockage Period or Payment Blockage Periods is in effect exceed 179 days
in the aggregate during any 360-consecutive-day period. No nonpayment default
that existed or was continuing on the date of delivery of any Blockage Notice to
the Trustee shall be, or be made, the basis for a subsequent Blockage Notice
unless such default shall have been cured or waived for a period of not less
than 90 consecutive days. The failure of the Company to pay principal when due
or to pay interest on the Debentures for more than 30 days after the scheduled
payment therefor as a result of the occurrence of a Payment Blockage Period
shall nevertheless constitute an Event of Default under this Indenture.
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For the purposes of this Article Ten (but without limiting the effect of any
other provision of this Article Ten), paying any Debenture Obligation shall
include any payment or distribution of any kind or character by the Company or
its Subsidiaries, by set-off or otherwise, including, without limitation, any
repurchase, redemption or acquisition of the Debentures and any direct or
indirect payment payable by reason of any other Indebtedness or Obligation being
subordinated to the Debentures.
(c) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by
Section 10.02(a) or 10.02(b) of this Indenture, the Trustee shall promptly
notify the representatives of such Senior Indebtedness of such prohibited
payment and such payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that, upon notice from
the Trustee to the representatives of such Senior Indebtedness that such
prohibited payment has been made, such representatives within 30 days of receipt
of such notice from the Trustee notifies the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the representatives of such Senior
Indebtedness and any excess above such amounts due and owing on Senior
Indebtedness shall be paid to the Company.
SECTION 10.03. Payment over of Proceeds upon Dissolution, Etc. (a) Upon
any payment or distribution of assets or securities of the Company of any kind
or character, whether in cash, property or securities (other than with the
money, securities or proceeds held under any defeasance trust established in
accordance with this Indenture), in connection with any dissolution or
winding-up or total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other similar proceedings, any assignment for the benefit of creditors or any
marshalling of assets for the benefit of creditors, all amounts due or to become
due upon all Senior Indebtedness (including any interest accruing on or
subsequent to, or which would have accrued but for the occurrence of, an event
specified in paragraphs (vi) and (vii) of Section 6.01, whether or not such
interest is an allowed claim enforceable against the debtor under the United
States Bankruptcy Code) shall first be paid in full, in cash, before the Holders
or the Trustee on their behalf shall be entitled to receive any payment by (or
on behalf of) the Company on account of Debenture Obligations, or any payment to
acquire any of the Debentures for cash, property or securities, or any
distribution with respect to the Debentures of any cash, property or securities.
Before any payment may be made by, or on behalf of, the Company on any Debenture
Obligations (other than with the money, securities or proceeds held under any
defeasance trust established in accordance with this Indenture) in connection
with any such dissolution, winding-up, liquidation, reorganization, assignment,
marshalling or proceeding, any payment or distribution of assets or securities
for the Company of any kind or character, whether in cash, property or
securities, to which the Holders or the
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Trustee on their behalf would be entitled, but for the provisions of this
Article Ten, shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, or by the Holders or the Trustee if received by them or
it, directly to the representatives of such Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders) or their representatives or to any trustee or trustees under
any other indenture pursuant to which any such Senior Indebtedness may have been
issued, as their respective interests appear, to the extent necessary to pay all
such Senior Indebtedness in full, in cash or cash equivalents after giving
effect to any concurrent payment, distribution or provision therefor to or for
the representatives of such Senior Indebtedness (except that Holders of the
Debentures may receive (i) Qualified Capital Stock issued by the Company to pay
interest on the Debentures or issued in exchange for the Debentures, (ii)
securities substantially identical to the Debentures issued by the Company in
payment of interest accrued thereon or (iii) securities issued by the Company
which are subordinated to Senior Indebtedness at least to the same extent as the
Debentures and having a Weighted Average Life to Maturity at least equal to the
remaining Weighted Average Life to Maturity of the Debentures).
(b) To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee or other
similar Person, the Senior Indebtedness or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Senior Indebtedness
is declared to be fraudulent, invalid, or otherwise set aside under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
the obligation so declared fraudulent, invalid or otherwise set aside (and all
other amounts that would come due with respect thereto had such obligation not
been so affected) shall be deemed to be reinstated and outstanding as Senior
Indebtedness for all purposes hereof as if such declaration, invalidity or
setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder at a time when
such payment or distribution is prohibited by Section 10.03(a) of this Indenture
and before all obligations in respect of Senior Indebtedness are paid in full,
in cash, such payment or distribution shall be received and held in trust for
the benefit of, and shall be paid over or delivered to, the representatives of
such Senior Indebtedness (pro rata to such holders on the basis of such
respective amount of Senior Indebtedness held by such holders) or their
representatives, or to the trustee or trustees under any indenture pursuant to
which any such Senior Indebtedness
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may have been issued, as their respective interests appear, for application to
the payment of Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full, in cash, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Indebtedness.
(d) For purposes of this Section 10.03, the words "cash, property or
securities" shall not be deemed to include, so long as the effect of this clause
is not to cause the Debentures to be treated in any case or proceeding or
similar event described in this Section 10.03 as part of the same class of
claims as the Senior Indebtedness or any class of claims pari passu with, or
senior to, the Senior Indebtedness for any payment or distribution, securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment that are subordinated, at least to the extent that the
Debentures are subordinated, to the payment of all Senior Indebtedness then
outstanding; provided that (1) if a new corporation results from such
reorganization or readjustment, such corporation assumes the Senior Indebtedness
and (2) the rights of the holders of the Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company with or into,
another corporation or the liquidation or dissolution of the Company following
the sale, conveyance, transfer, lease or other disposition of all or
substantially all of its property and assets to another corporation upon the
terms and conditions provided in Article Five of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 10.03 if such other corporation shall, as a part of such
consolidation, merger, sale, conveyance, transfer, lease or other disposition,
comply (to the extent required) with the conditions stated in Article Five of
this Indenture.
SECTION 10.04. Subrogation. (a) Upon the payment in full of all Senior
Indebtedness in cash, the Holders shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such Senior Indebtedness until the
principal of, premium, if any, and interest on the Debentures shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to
the representatives of the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders or the Trustee on their behalf would
be entitled except for the provisions of this Article Ten, and no payment
pursuant to the provisions of this Article Ten to the holders of Senior
Indebtedness by Holders or the Trustee on their behalf shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders, be deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article Ten are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of the Senior Indebtedness, on the other hand.
(b) If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of all
amounts payable under Senior Indebtedness,
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then, and in such case, the Holders shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount required to make
payment in full, in cash, of such Senior Indebtedness of such holders.
SECTION 10.05. Obligations of Company Unconditional. (a) Nothing
contained in this Article Ten or elsewhere in this Indenture or in the
Debentures is intended to or shall impair, as among the Company and the Holders,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders the principal of, premium, if any, and interest on the Debentures as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Holders or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Ten of the holders of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing, nothing contained
in this Article Ten will restrict the right of the Trustee or the Holders to
take any action to declare the Debentures to be due and payable prior to their
stated maturity pursuant to Section 6.01 of this Indenture or to pursue any
rights or remedies hereunder; provided, however, that all Senior Indebtedness
then due and payable or thereafter declared to be due and payable shall first be
paid in full, in cash, before the Holders or the Trustee on behalf of the
Holders are entitled to receive any direct or indirect payment from the Company
of Debenture Obligations.
SECTION 10.06. Notice to Trustee. (a) The Company shall give prompt
written notice to the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article Ten. The Trustee shall not
be charged with the knowledge of the existence of any default or event of
default with respect to any Senior Indebtedness or of any other facts that would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing at its Corporate Trust Office to
that effect signed by an Officer of the Company, or by a holder of Senior
Indebtedness or trustee or agent thereof; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided that, if the Trustee shall not have
received the notice provided for in this Section 10.06 at least three Business
Days prior to the date upon which, by the terms of this Indenture, any monies
shall become payable for any purpose (including, without limitation, the payment
of the principal of, premium, if any, or interest on any Debenture), then,
notwithstanding anything herein to the contrary, the Trustee shall have full
power and authority to receive any monies from the Company and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary that may be received by it on or after such prior date
except for an acceleration of the Debentures prior to such application. Nothing
contained in this
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Section 10.06 shall limit the right of the holders of Senior Indebtedness to
recover payments as contemplated by this Article Ten. The foregoing shall not
apply if the Paying Agent is the Company. The Trustee shall be entitled to rely
in good faith on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of any Senior Indebtedness (or a trustee on
behalf of, or other representative of, such holder) to establish that such
notice has been given by a holder of such Senior Indebtedness or a trustee or
representative on behalf of any such holder.
(b) In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Ten and, if such evidence is not furnished to the
Trustee, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 10.07. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets or securities referred to in
this Article Ten, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
similar Person making such payment or distribution, delivered to the Trustee or
to the Holders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness 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 Ten, provided that such court, trustee, receiver,
custodian, assignee, agent or other Person has been apprised of, or the order,
decree or certificate makes reference to, the provisions of this Article.
SECTION 10.08. Trustee's Relation to Senior Indebtedness. (a) The
Trustee and any Paying Agent shall be entitled to all the rights set forth in
this Article Ten with respect to any Senior Indebtedness that may at any time be
held by it in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall deprive
the Trustee or any Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
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Sections 10.02(c) and 10.03(c) of this Indenture) and shall not be liable to any
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Debentures or to the Company or to any other person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article Ten or otherwise.
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as provided
in this Article Ten will at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with. The provisions of this
Article Ten are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness.
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination of
Debentures. Each Holder by his acceptance of any Debentures authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Ten, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the property and assets
of the Company, the filing of a claim for the unpaid balance of its Debentures
in the form required in those proceedings. If the Trustee does not file a proper
claim or proof in indebtedness in the form required in such proceeding at least
30 days before the expiration of the time to file such claim or claims, each
holder of Senior Indebtedness is hereby authorized to file an appropriate claim
for and on behalf of the Holders.
SECTION 10.11. Not to Prevent Events of Default. The failure to make a
payment on account of principal of, premium, if any, or interest on the
Debentures by reason of any provision of this Article Ten will not be construed
as preventing the occurrence of an Event of Default.
SECTION 10.12. Trustee's Compensation Not Prejudiced. Nothing in this
Article Ten will apply to amounts due to the Trustee pursuant to other sections
of this Indenture, including without limitation Section 7.07.
SECTION 10.13. No Waiver of Subordination Provisions. Without in any
way limiting the generality of Section 10.09, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Holders and
without impairing or releasing the subordination provided in this Article Ten or
the obligations hereunder of the Holders to the holders of Senior Indebtedness,
do any one or more of the following: (a) change the manner, place or terms of
payment or extend
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or shorten the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding or secured; (b) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 10.14. Payments May Be Paid Prior to Dissolution. Nothing
contained in this Article Ten or elsewhere in this Indenture shall prevent (i)
the Company except under the conditions described in Section 10.02 or 10.03,
from making payments of principal of, premium, if any, and interest on the
Debentures, or from depositing with the Trustee any money for such payments, or
(ii) the application by the Trustee of any money deposited with it for the
purpose of making such payments of principal of, premium, if any, and interest
on the Debentures to the holders entitled thereto unless, at least three
Business Days prior to the date upon which such payment becomes due and payable,
the Trustee shall have received the written notice provided for in Section
10.02(b) of this Indenture (or there shall have been an acceleration of the
Debentures prior to such application) or in Section 10.06 of this Indenture. The
Company shall give prompt written notice to the Trustee of any dissolution,
winding up, liquidation or reorganization of, or similar proceeding (including
any assignment for the benefit of creditors or any marshalling of assets) with
respect to, the Company.
SECTION 10.15. Consent of Holders of Senior Indebtedness Under the
Senior Credit Facilities. The provisions of this Article Ten (including the
definitions contained in this Article and references to this Article contained
in this Indenture) shall not be amended in a manner that would adversely affect
the rights of the holders of Senior Indebtedness under the Senior Credit
Facilities, and no such amendment shall become effective unless the holders of
Senior Indebtedness under the Senior Credit Facilities shall have consented (in
accordance with the provisions of the Senior Credit Facilities) to such
amendment. The Trustee shall be entitled to receive and rely on an Officers'
Certificate stating that such consent has been given.
SECTION 10.16. 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 Eight by the Trustee for the
payment of principal of, premium, if any, and interest on the Debentures shall
not be subordinated to the prior payment of any Senior Indebtedness (provided
that, at the time deposited, such deposit did not violate any then outstanding
Senior Indebtedness), and none of the Holders shall be obligated to pay over any
such amount to any holder of Senior Indebtedness.
SECTION 10.17. Notice to Representative of Designated Senior
Indebtedness. If payment of the Debentures is accelerated because of an Event
of Default, the Company or the Trustee shall promptly notify the Representative
(if any) of any issue of Designated Senior
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Indebtedness which is then outstanding; provided, however, that the Company and
the Trustee shall be obligated to notify such a Representative (other than with
respect to the Senior Credit Facilities) only if such Representative has
delivered or caused to be delivered an address for the service of such a notice
to the Company and the Trustee (and the Company and the Trustee shall be
obligated only to deliver the notice to the address so specified). If a notice
is required pursuant to the immediately preceding sentence, the Company may not
pay the Debentures (except payment (i) in Qualified Capital Stock issued by the
Company to pay interest on the Debentures or issued in exchange for the
Debentures, (ii) in securities substantially identical to the Debentures issued
by the Company in payment of interest accrued thereon or (iii) in securities
issued by the Company which are subordinated to the Senior Indebtedness at least
to the same extent as the Debentures and have a Weighted Average Life to
Maturity at least equal to the remaining Weighted Average Life to Maturity of
the Debentures), until five Business Days after the respective Representative of
the Designated Senior Indebtedness receives notice (at the address specified in
the preceding sentence) of such acceleration and, thereafter, may pay the
Debentures only if the subordination provisions of the Indenture otherwise
permit payment at that time.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. Prior to the effectiveness
of the Registration Statement, this Indenture shall incorporate and be governed
by the provisions of the TIA that are required or deemed to be part of and to
govern indentures qualified under the TIA. After the effectiveness of the
Registration Statement, this Indenture shall be subject to the provisions of the
TIA that are required or deemed to be a part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 11.02. Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person, mailed by first-class
mail or sent by telecopier transmission addressed as follows:
if to the Company:
Regal Cinemas, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: Chief Financial Officer
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if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: Corporate 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 Holder shall be mailed to it at
its address as it appears on the Security Register by first-class mail and shall
be sufficiently given to him if so mailed within the time prescribed. Any notice
or communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder as provided
herein or any defect in any such notice or communication shall not affect its
sufficiency with respect to other Holders. Except for a notice to the Trustee,
which is deemed given only when received, and except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided in
this Section 11.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Debentures. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
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(i) 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
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06. Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Payment Date, stated maturity or date of maturity
of any Debenture shall not be a Business Day, then payment of principal of,
premium, if any, or interest on such Debenture, as the case may be, need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Payment Date or
Redemption Date, or at the stated maturity or date of maturity of such
Debenture; provided that no interest shall accrue for the period from and after
such Interest Payment Date, Payment Date, Redemption Date, stated maturity or
date of maturity, as the case may be.
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SECTION 11.07. Governing Law. This Indenture and the Debentures shall
be governed by the laws of the State of New York 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. The Trustee, the
Company and the Holders agree to submit to the jurisdiction of the courts of the
State of New York in any action or proceeding arising out of or relating to this
Indenture or the Debentures.
SECTION 11.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.09. No Recourse Against Others. No recourse for the payment
of the principal of, premium, if any, or interest on any of the Debentures, or
for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company contained in
this Indenture or in any of the Debentures, or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator or
against any past, present or future partner, stockholder, other equityholder,
officer, director, employee or controlling person, as such, of the Company or of
any successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Debentures.
SECTION 11.10. Successors. All agreements of the Company in this
Indenture and the Debentures shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.11. Duplicate 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.
SECTION 11.12. Separability. In case any provision in this Indenture
or in the Debentures shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
and provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
REGAL CINEMAS, INC.
By: /s/ D. XXXX XXXXXX
--------------------------------------
Name: D. Xxxx Xxxxxx
Title: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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EXHIBIT A
[APPLICABLE LEGENDS]
[FACE OF DEBENTURE]
REGAL CINEMAS, INC.
8 7/8% Senior Subordinated Debenture due 2010
CUSIP [__________]
No. ____ $_________
REGAL CINEMAS, INC., a Tennessee corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to _____________, or its registered assigns, the
principal sum of ______________________ ($____________) on December 15, 2010.
Interest Payment Dates: June 15 and December 15, commencing June 15,
1999.
Regular Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Debenture to be signed
manually or by facsimile by its duly authorized officers.
Date: December 16, 1998 REGAL CINEMAS, INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
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A-2
(Trustee's Certificate of Authentication)
This is one of the 8 7/8% Senior Subordinated Debentures due 2010 described in
the within-mentioned Indenture.
IBJ XXXXXXXX BANK & TRUST
COMPANY,
as Trustee
By:
--------------------------------------
Authorized Signatory
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A-3
[REVERSE SIDE OF DEBENTURE]
REGAL CINEMAS, INC.
8 7/8% Senior Subordinated Debenture due 2010
1. Principal and Interest.
The Company will pay the principal of this Debenture on December 15,
2010.
The Company promises to pay interest on the principal amount of this
Debenture on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of record of the
Debentures at the close of business on the June 1 or December 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
June 15, 1999.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Debentures is not declared effective by the Commission, on or before _________,
1999 in accordance with the terms of the Registration Rights Agreement dated
December 16, 1998 between the Company and Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, the annual interest rate
borne by the Debentures shall be increased by 0.5% per annum from the rate shown
above accruing from the date that is 225 days after _________, payable in cash
semiannually, in arrears, on each Interest Payment Date, commencing December 15,
1999 until the Exchange Offer is consummated or the Shelf Registration Statement
is declared effective. The Holder of this Debenture is entitled to the benefits
of such Registration Rights Agreement.
Interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from December 16,
1998, provided that, if there is no existing default in the payment of interest
and this Debenture is authenticated between a Regular Record Date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
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2. Method of Payment.
The Company will pay interest on the principal amount of the Debentures
as provided above on each June 15 and December 15, commencing June 15, 1999 to
the persons who are Holders (as reflected in the Security Register at the close
of business on the June 1 or December 1 immediately preceding the Interest
Payment Date), in each case, even if the Debenture is cancelled on registration
of transfer or registration of exchange after such record date; provided that,
with respect to the payment of principal, the Company will make payment to the
Holder that surrenders this Debenture to a Paying Agent on or after December 15,
2010.
The Company will pay principal, premium, if any, and as provided above,
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal, premium, if any, and interest by its check payable in such money. It
may mail an interest check to a Holder's registered address (as reflected in the
Security Register). If a payment date is a date other than a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, a Paying Agent
and the Registrar. The Company may change any authenticating agent, Paying Agent
or Transfer Agent without notice. The Company, any Subsidiary or any Affiliate
of any of them may act as a Paying Agent or a Transfer Agent.
4. Indenture; Limitations.
The Company issued the Debentures under an Indenture dated as of
December 16, 1998 (the "Indenture"), between the Company and IBJ Xxxxxxxx Bank &
Trust Company, as trustee (the "Trustee"). Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the Debentures
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Debentures are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for
a statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Debenture and the terms of
the Indenture, the terms of the Indenture shall control.
The Debentures are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and
applicable law, issue additional Debentures under the Indenture.
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5. Optional Redemption.
The Debentures are redeemable, at the Company's option, in whole or in
part, at any time or from time to time, on or after December 15, 2003 and prior
to maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount thereof on the applicable Redemption Date), plus accrued and
unpaid interest to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date), if redeemed during the
12-month period commencing December 15 of the years set forth below:
Redemption
Year Price
---- ----------
2003 104.438%
2004 103.328
2005 102.219
2006 101.109
2007 and thereafter 100.000
At any time and from time to time prior to December 15, 2001, the
Company may redeem up to 35% of the aggregate principal amount of the Debentures
with the proceeds of one or more Equity Offerings, at a Redemption Price
(expressed as a percentage of principal amount) of 108.875%, plus accrued and
unpaid interest to the Redemption Date (subject to the rights of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date); provided that (i) at least
65% of the aggregate principal amount of Debentures issued under the Indenture
remains outstanding after each such redemption and (ii) any such redemption
shall occur on or prior to the date that is 90 days after receipt by the Company
of the proceeds of an Equity Offering. The Company shall effect such redemption
on a pro rata basis.
Debentures in original denominations larger than $1,000 may be redeemed
in part. On and after the Redemption Date, interest ceases to accrue on
Debentures or portions of Debentures called for redemption, unless the Company
defaults in the payment of the Redemption Price.
6. Repurchase upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require that the Company purchase all or a portion of such Holder's
Debentures in cash pursuant to the offer described in Section 4.07(c) of the
Indenture, at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase.
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(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following the date on which the Company becomes aware that
a Change of Control has occurred, if the purchase of the Debentures would
violate or constitute a default under any other Indebtedness of the Company,
then the Company shall, to the extent needed to permit such purchase of
Debentures, either (i) repay all such Indebtedness and terminate all commitments
outstanding thereunder or (ii) obtain the requisite consents, if any, under such
Indebtedness to permit the purchase of the Debentures as provided below. The
Company will first comply with the covenant in the preceding sentence before it
will be required to make the Change of Control Offer or purchase the Debentures
pursuant to the provisions of Section 4.07(c) and Section 4.07(d) of the
Indenture.
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at its last address as it appears in
the Security Register. Debentures in original denominations larger than $1,000
may be sold to the Company in part. On and after the Payment Date, interest
ceases to accrue on Debentures or portions of Debentures surrendered for
purchase by the Company, unless the Company defaults in the payment of the
purchase price.
7. Denominations; Transfer; Exchange.
The Debentures are in registered form without coupons in denominations
of $1,000 of principal amount and multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Debentures in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer or exchange of any Debentures selected for redemption.
Also, it need not register the transfer or exchange of any Debentures for a
period of 15 days before the day of mailing of a notice of redemption of
Debentures selected for redemption.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Debenture for all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
00
X-0
00. Discharge Prior to Redemption or Maturity.
Under certain circumstances, if the Company deposits with the Trustee
money, U.S. Government Obligations or a combination thereof sufficient to pay
the then outstanding principal of, premium, if any, and accrued interest on the
Debentures to redemption or maturity of the Debentures, the Company may, under
certain circumstances, be discharged from the Indenture and the Debentures,
except in certain circumstances for certain provisions thereof, or from certain
covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Debentures may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Debentures then outstanding, and any existing default
or compliance with any provision may be waived with the consent of the Holders
of at least a majority in principal amount of the Debentures then outstanding.
Without notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Debentures to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries, among other things, to incur additional
Indebtedness, make Restricted Payments, issue Preferred Stock of Restricted
Subsidiaries, Guarantee Indebtedness of the Company, engage in transactions with
Affiliates, or merge, consolidate or transfer substantially all of its assets.
Within 45 days after the end of each fiscal quarter (90 days after the end of
the last fiscal quarter of each year), the Company shall deliver to the Trustee
an Officers' Certificate stating whether or not the signers thereof know of any
Default or Event of Default under such restrictive covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Debentures and the Indenture, the predecessor person
will be released from those obligations.
14. Defaults and Remedies.
Any of the following events constitutes an "Event of Default" under the
Indenture:
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(i) the failure to pay interest on the Debentures when the
same becomes due and payable and the Default continues for a period of
30 days (whether or not such payment is prohibited by the provisions of
Article Ten);
(ii) the failure to pay principal of or premium, if any, on
any Debentures when such principal or premium, if any, becomes due and
payable, at maturity, upon redemption or otherwise (whether or not such
payment is prohibited by the provisions of Article Ten);
(iii) a default in the observance or performance of any other
covenant or agreement contained in the Debentures or this Indenture,
which default continues for a period of 60 days after the Company
receives written notice thereof specifying the default from the Trustee
or holders of at least 30% in aggregate principal amount of outstanding
Debentures;
(iv) the failure to pay at the final stated maturity (after
giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness, if the aggregate principal amount of such Indebtedness,
together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final
stated maturity (giving effect to any extensions thereof) or which has
been accelerated, aggregates $20 million or more at any time;
(v) one or more judgments in an aggregate amount in excess of
$20 million (which are not covered by insurance as to which the insurer
has not disclaimed coverage) being rendered against the Company or any
of its Significant Restricted Subsidiaries and such judgment or
judgments remain undischarged or unstayed for a period of 60 days after
such judgment or judgments become final and nonappealable;
(vi) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
Significant Restricted Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law for relief of
debtors now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Restricted
Subsidiaries or for all or substantially all of the property and assets
of the Company or any of its Significant Restricted Subsidiaries or (C)
the winding up or liquidation of the affairs of the Company or any of
its Significant Restricted Subsidiaries and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(vii) the Company or any of its Significant Restricted
Subsidiaries (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law for relief of debtors now
or hereafter in effect, or consents to the entry of an order for relief
in an
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involuntary case under any such law, (B) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any of its
Significant Restricted Subsidiaries or for all or substantially all of
the property and assets of the Company or any of its Significant
Restricted Subsidiaries or (C) effects any general assignment for the
benefit of creditors.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least 30%
in aggregate principal amount of the Debentures then outstanding shall, declare
all the Debentures to be due and payable. If a bankruptcy or insolvency default
with respect to the Company occurs and is continuing, the Debentures
automatically become due and payable. Holders may not enforce the Indenture or
the Debentures except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Debentures.
Subject to certain limitations, Holders of at least a majority in principal
amount of the Debentures then outstanding may direct the Trustee in its exercise
of any trust or power.
15. Subordination.
The payment of the Debentures will, to the extent set forth in the
Indenture, be subordinated in right of payment to the prior payment in full, in
cash, of all Senior Indebtedness.
16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No incorporator or any past, present or future partner, stockholder,
other equityholder, officer, director, employee or controlling person, as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Debentures or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Debentures.
18. Authentication.
This Debenture shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Debenture.
00
X-00
00. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to Regal Cinemas, Inc.,
0000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000; Attention:
Chief Financial Officer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing
attorney
--------------------------------------------------------------------
to transfer said Debenture on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL DEBENTURES OTHER THAN EXCHANGE DEBENTURES,
UNLEGENDED OFFSHORE GLOBAL DEBENTURES AND
UNLEGENDED OFFSHORE PHYSICAL DEBENTURES]
In connection with any transfer of this Debenture occurring prior to
the date which is the earlier of (i) the date the Shelf Registration Statement
is declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Debenture is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Debenture is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Debenture and the Indenture.
98
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Debenture in the name of any Person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
--------------- -----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee:
---------------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Debenture 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 representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
--------------- -----------------------------------------------------
NOTICE: To be executed by an executive officer
99
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Debenture purchased by the Company pursuant to
Section 4.07 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Debenture purchased by the
Company pursuant to Section 4.07 of the Indenture, state the amount:
$___________________.
Date:
---------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Debenture)
Signature Guarantee:
--------------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee.
100
EXHIBIT B
Form of Certificate
,
----------------- --
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Administration
Regal Cinemas, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Re: Regal Cinemas, Inc. (the "Company")
8 7/8% Senior Subordinated Debentures due 2010 (the "Debentures")
Dear Sirs:
This letter relates to U.S. $______ principal amount of Debentures
represented by a Debenture (the "Legended Debenture") which bears a legend
outlining restrictions upon transfer of such Legended Debenture. Pursuant to
Section 2.02 of the Indenture dated as of December 16, 1998 (the "Indenture")
relating to the Debentures, we hereby certify that we are (or we will hold such
securities on behalf of) a person outside the United States to whom the
Debentures could be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933. Accordingly, you are hereby
requested to exchange the legended certificate for an unlegended certificate
representing an identical principal amount of Debentures, all in the manner
provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
--------------------------------------
Authorized Signatory
101
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
,
---------------- ---
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Administration
Re: Regal Cinemas, Inc. (the "Company")
8 7/8% Senior Subordinated Debentures due 2010 (the "Debentures")
Dear Sirs:
In connection with our proposed purchase of $__________________
aggregate principal amount of the Debentures, we confirm that:
1. We understand that any subsequent transfer of the Debentures is
subject to certain restrictions and conditions set forth in the Indenture dated
as of December 16, 1998 (the "Indenture") relating to the Debentures and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Debentures except in compliance with such restrictions and
conditions and the Securities Act of 1933, amended (the "Securities Act").
2. We understand that the offer and sale of the Debentures have not been
registered under the Securities Act, and that the Debentures may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Debentures within the time period referred to
in Rule 144(k) of the Securities Act, we will do so only (A) to the Company or
any subsidiary thereof, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter
and, if such transfer is in respect of an aggregate principal amount of less
than $100,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available) or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Debentures
102
C-2
from us a notice advising such purchaser that resales of the Debentures are
restricted as stated herein.
3. We understand that, on any proposed resale of any Debentures, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Debentures purchased by us will bear a legend to the
foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Debentures, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Debentures purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
--------------------------------------
Authorized Signatory
103
EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
,
--------------- ---
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Administration
Re: Regal Cinemas, Inc.(the "Company")
8 7/8% Senior Subordinated Debentures due 2010 (the "Debentures")
Dear Sirs:
In connection with our proposed sale of U.S. $___________ aggregate
principal amount of the Debentures, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of 1933
and, accordingly, we represent that:
(1) the offer of the Debentures was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------------
Authorized Signatory
