1
EXHIBIT 4.1
XXXXX ADVERTISING COMPANY,
THE GUARANTORS
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
INDENTURE
Dated as of September 25, 1997
$200,000,000
8 5/8% Senior Subordinated Notes due 2007
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)................................. 7.10
(a)(2).................................... 7.10
(a)(3).................................... N.A.
(a)(4).................................... N.A.
(a)(5).................................... 7.10
(b)....................................... 7.08; 7.10; 12.02
(b)(1).................................... 7.10
(b)(9).................................... 7.10
(c)....................................... N.A.
311(a).................................... 7.11
(b)....................................... 7.11
(c)....................................... N.A.
312(a).................................... 2.05
(b)....................................... 12.03
(c)....................................... 12.03
313(a).................................... 7.06
(b)(1).................................... 7.06
(b)(2).................................... 7.06
(c)....................................... 7.06; 12.02
(d)....................................... 7.06
314(a).................................... 4.02; 4.04; 12.02
(b)....................................... N.A.
(c)(1).................................... 12.04; 12.05
(c)(2).................................... 12.04; 12.05
(c)(3).................................... N.A.
(d)....................................... N.A.
(e)....................................... 12.05
(f)....................................... N.A.
315(a).................................... 7.01; 7.02
(b)....................................... 7.05; 12.02
(c)....................................... 7.01
(d)....................................... 6.05; 7.01; 7.02
(e)....................................... 6.11
316(a)(last sentence)..................... 12.06
(a)(1)(A)................................. 6.05
(a)(1)(B)................................. 6.04
(a)(2).................................... 8.02
(b)....................................... 6.07
(c)....................................... 8.04
317(a)(1)................................. 6.08
(a)(2).................................... 6.09
(b)....................................... 2.04; 7.12
318(a).................................... 12.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of the Indenture.
3
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................... 1
Section 1.02. Other Definitions................................ 24
Section 1.03. Incorporation by Reference of Trust
Indenture Act.................................. 25
Section 1.04. Rules of Construction............................ 25
ARTICLE 2. THE NOTES
Section 2.01. Form and Dating.................................. 26
Section 2.02. Execution and Authentication..................... 27
Section 2.03. Registrar and Paying Agent....................... 28
Section 2.04. Paying Agent To Hold Assets in Trust............. 29
Section 2.05. Noteholder Lists................................. 30
Section 2.06. Transfer and Exchange............................ 30
Section 2.07. Replacement Notes................................ 32
Section 2.08. Outstanding Notes................................ 32
Section 2.09. Temporary Notes.................................. 33
Section 2.10. Cancellation..................................... 33
Section 2.11. Defaulted Interest............................... 33
Section 2.12. Deposit of Moneys................................ 34
Section 2.13. CUSIP Number..................................... 34
Section 2.14. Book-Entry Provisions for Global Notes........... 34
Section 2.15. Special Transfer Provisions...................... 36
ARTICLE 3. REDEMPTION
Section 3.01. Notices to Trustee............................... 39
Section 3.02. Selection by Trustee of Notes To Be
Redeemed....................................... 40
Section 3.03. Notice of Redemption............................. 40
Section 3.04. Effect of Notice of Redemption................... 41
Section 3.05. Deposit of Redemption Price...................... 42
Section 3.06. Notes Redeemed in Part........................... 42
ARTICLE 4. COVENANTS
Section 4.01. Payment of Notes................................. 42
Section 4.02. SEC Reports...................................... 43
Section 4.03. Waiver of Stay, Extension or Usury Laws.......... 43
Section 4.04. Compliance Certificate........................... 44
i
4
Page
----
Section 4.05. Payment of Taxes and Other Claims................ 45
Section 4.06. Maintenance of Properties and Insurance.......... 45
Section 4.07. Compliance with Laws............................. 46
Section 4.08. Corporate Existence.............................. 46
Section 4.09. Maintenance of Office or Agency.................. 47
Section 4.10. Limitation on Additional Indebtedness and
Preferred Stock of Restricted
Subsidiaries................................... 47
Section 4.11. Limitation on Issuances and Sales of
Preferred Stock by Restricted
Subsidiaries................................... 48
Section 4.12. Limitation on Restricted Payments................ 49
Section 4.13. Limitation on Other Senior Subordinated
Debt........................................... 51
Section 4.14. Limitation on Certain Asset Sales................ 52
Section 4.15. Limitation on Transactions with Affiliates....... 55
Section 4.16. Limitations on Liens............................. 56
Section 4.17. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries............ 57
Section 4.18. Guarantees of Certain Indebtedness............... 57
Section 4.19. Payments for Consent............................. 58
Section 4.20. Line of Business................................. 58
Section 4.21. Change of Control................................ 58
ARTICLE 5. SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets................................. 61
Section 5.02. Successor Person Substituted..................... 62
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01. Events of Default................................ 63
Section 6.02. Acceleration..................................... 65
Section 6.03. Other Remedies................................... 65
Section 6.04. Waiver of Past Defaults and Events of
Default........................................ 66
Section 6.05. Control by Majority.............................. 66
Section 6.06. Limitation on Suits.............................. 66
Section 6.07. Rights of Holders To Receive Payment............. 67
Section 6.08. Collection Suit by Trustee....................... 67
Section 6.09. Trustee May File Proofs of Claim................. 68
Section 6.10. Priorities....................................... 68
Section 6.11. Undertaking for Costs............................ 69
ii
5
Page
----
ARTICLE 7. TRUSTEE
Section 7.01. Duties of Trustee................................ 69
Section 7.02. Rights of Trustee................................ 71
Section 7.03. Individual Rights of Trustee..................... 72
Section 7.04. Trustee's Disclaimer............................. 72
Section 7.05. Notice of Default................................ 72
Section 7.06. Reports by Trustee to Holders.................... 72
Section 7.07. Compensation and Indemnity....................... 73
Section 7.08. Replacement of Trustee........................... 74
Section 7.09. Successor Trustee by Consolidation,
Merger or Conversion........................... 75
Section 7.10. Eligibility; Disqualification.................... 75
Section 7.11. Preferential Collection of Claims Against
Company........................................ 75
Section 7.12. Paying Agents.................................... 75
ARTICLE 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders....................... 76
Section 8.02. With Consent of Holders.......................... 77
Section 8.03. Compliance with Trust Indenture Act.............. 78
Section 8.04. Revocation and Effect of Consents................ 78
Section 8.05. Notation on or Exchange of Notes................. 79
Section 8.06. Trustee To Sign Amendments, etc.................. 80
ARTICLE 9. DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture........................... 80
Section 9.02. Legal Defeasance................................. 81
Section 9.03. Covenant Defeasance.............................. 81
Section 9.04. Conditions to Legal Defeasance or
Covenant Defeasance............................ 82
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust; Other
Miscellaneous Provisions....................... 84
Section 9.06. Reinstatement.................................... 85
Section 9.07. Moneys Held by Paying Agent...................... 85
Section 9.08. Moneys Held by Trustee........................... 85
ARTICLE 10. GUARANTEE OF NOTES
Section 10.01. Guarantee........................................ 86
Section 10.02. Execution and Delivery of Guarantees............. 87
Section 10.03. Limitation of Guarantee.......................... 88
Section 10.04. Additional Guarantors............................ 88
Section 10.05. Release of Guarantor............................. 89
Section 10.06. Guarantee Obligations Subordinate to
Senior Indebtedness............................ 89
iii
6
Page
----
Section 10.07. No Payment on Guarantees in Certain
Circumstances.................................. 90
Section 10.08. Guarantee Obligations Subordinated to
Prior Payment of All Senior
Indebtedness of Guarantors on
Dissolution, Liquidation or
Reorganization................................. 91
Section 10.09. Holders to be Subrogated to Rights of
Holders of Senior Indebtedness of
Guarantors..................................... 93
Section 10.10. Application of Certain Article 11
Provisions..................................... 93
Section 10.11. Contributions.................................... 94
ARTICLE 11. SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness......... 94
Section 11.02. No Payment on Notes in Certain
Circumstances.................................. 95
Section 11.03. Notes Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution,
Liquidation or Reorganization.................. 96
Section 11.04. Holders to be Subrogated to Rights of
Holders of Senior Indebtedness................. 97
Section 11.05. Obligations of the Company Unconditional......... 98
Section 11.06. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice................ 99
Section 11.07. Application by Trustee of Assets
Deposited With it.............................. 99
Section 11.08. Subordination Rights Not Impaired by Acts
of or Omissions of the Company or
Holders of Senior Indebtedness................. 100
Section 11.09. Holders Authorize Trustee to Effectuate
Subordination of Notes......................... 100
Section 11.10. Right of Trustee to Hold Senior
Indebtedness................................... 101
Section 11.11. Article 11 Not to Prevent Events of
Default........................................ 101
Section 11.12. No Fiduciary Duty of Trustee to Holders
of Senior Indebtedness......................... 101
ARTICLE 12. MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls..................... 102
Section 12.02. Notices.......................................... 102
iv
7
Page
----
Section 12.03. Communications by Holders with Other
Holders........................................ 103
Section 12.04. Certificate and Opinion as to Conditions
Precedent...................................... 104
Section 12.05. Statements Required in Certificate and
Opinion........................................ 104
Section 12.06. When Treasury Notes Disregarded.................. 105
Section 12.07. Rules by Trustee and Agents...................... 105
Section 12.08. Business Days; Legal Holidays.................... 105
Section 12.09. Governing Law.................................... 105
Section 12.10. No Adverse Interpretation of Other
Agreements..................................... 106
Section 12.11. No Recourse Against Others....................... 106
Section 12.12. Successors....................................... 106
Section 12.13. Multiple Counterparts............................ 106
Section 12.14. Table of Contents, Headings, etc................. 106
Section 12.15. Separability..................................... 107
EXHIBITS
Exhibit A. - Form of Face and Reverse of Initial Note............. A-1
Exhibit B. - Form of Face and Reverse of Exchange Note............ B-1
Exhibit C. - Form of Certificate to be Delivered in
Connection with Transfers to Non-QIB
Institutional Accredited Investors............ C-1
Exhibit D. - Intentionally Omitted
Exhibit E. - Intentionally Omitted
Exhibit F. - Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Rule 144A..................................... F-1
Exhibit G. - Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Regulation S.................................. G-1
v
8
INDENTURE, dated as of September 25, 1997, among XXXXX ADVERTISING
COMPANY, a Delaware corporation, as Issuer (the "Company"), the GUARANTORS (as
hereinafter defined), and STATE STREET BANK AND TRUST COMPANY, a trust company
organized under the laws of the Commonwealth of Massachusetts, as Trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 8 5/8%
Senior Subordinated Notes due 2007 (the "Initial Notes") and, when and if issued
pursuant to a registered exchange for Notes, the Company's 8 5/8% Senior
Subordinated Notes due 2007 (the "Exchange Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person.
"Adjusted Net Assets" of a Guarantor at any date shall mean the
lesser of (x) the amount by which the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Guarantee of such
Guarantor at such date and (y) the amount by which the present fair salable
value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities and after giving
effect to any collection from any Subsidiary of such Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding Indebtedness in
respect of the Guarantee, as they become absolute and matured.
"Advertising Displays" mean all posters, signs (including logo sign
structures), billboards and other outdoor advertising displays and related
contracts and sites therefor owned or leased (as lessee) by the Company and the
Restricted Subsidiaries.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or
9
more intermediaries controls, or is controlled by, or is under common control
with, such specified Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be consolidated or merged with the
Company or any Restricted Subsidiary or (ii) the acquisition by the Company or
any Restricted Subsidiary of assets of any Person.
"Asset Sale" means the sale, transfer or other disposition (other
than to the Company or any of its Restricted Subsidiaries) in any single
transaction or series of related transactions having a fair market value in
excess of $1 million of (a) any Capital Stock of or other equity interest in any
Restricted Subsidiary, (b) all or substantially all of the assets of any
business owned by the Company or any Restricted Subsidiary or a division, line
of business or comparable business segment of the Company or any Restricted
Subsidiary or (c) any other assets or property of the Company or of any
Restricted Subsidiary, (whether real or personal property). For purposes of this
definition, the term Asset Sale shall not include any sale, transfer or other
disposition that is governed by and made in accordance with Section 5.01 or any
sale, transfer or other disposition to the Company or a Wholly-Owned Restricted
Subsidiary that is a Guarantor.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i)
cash received by the Company or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage commissions, underwriting and other fees and
expenses related to such Asset Sale, and (c) deduction of appropriate amounts to
be provided by the Company or such Restricted Subsidiary as a reserve, in
accordance with GAAP, against any liabilities associated with the assets sold or
2
10
disposed of in such Asset Sale and retained by the Company or such Restricted
Subsidiary after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and
other noncash consideration received by the Company or any Restricted Subsidiary
from such Asset Sale or other disposition upon the liquidation or conversion of
such notes or noncash consideration into cash.
"Available Asset Sale Proceeds" means, with respect to any Asset
Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clauses (iii)(a) or (iii)(b) of Section 4.14, and
which have not been the basis for an Excess Proceeds Offer in accordance with
clause (iii)(c) of such Section 4.14.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years (or any fraction thereof)
from such date to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"Board of Directors" means the Board of Directors of the Company or
a Guarantor, as appropriate, or any committee authorized to act therefor.
"Board Resolution" means a copy of a resolution certified pursuant
to an Officers' Certificate to have been duly adopted by the Board of Directors
of the Company or a Guarantor, as appropriate, and to be in full force and
effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in
3
11
accordance with GAAP, and the amount of such Indebtedness shall be the
capitalized amount of such obligations determined in accordance with GAAP.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), excluding Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time, upon the
happening of an event or otherwise), directly or indirectly, of more than 35% of
the total voting power of all Voting Stock of the Company; provided, however,
that the Permitted Holders (i) "beneficially own" (as so defined) a lower
percentage of such total voting power with respect to the Voting Stock than such
other person or "group" and (ii) do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Board of Directors of the Company; (b) the Company consolidates with, or
merges with or into, another person or sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
person, or any person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which the outstanding Voting Stock
of the Company is converted into or exchanged for cash, securities or other
property, other than any such transaction where (i) the outstanding Voting Stock
of the Company is converted into or exchanged for (1) Voting Stock (other than
Disqualified Capital Stock) of the surviving or transferee corporation or (2)
cash, securities and other property in an amount which could then be paid by the
Company as a Restricted Payment under this Indenture, or a combination thereof,
and (ii) immediately after such transaction no "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), excluding
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person or group shall be deemed to
have "beneficial ownership" of all securities that such person or group has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time, upon the happening of an event or otherwise), directly or
indirectly, of more than 50% of the total voting power of all Voting Stock of
the surviving or transferee corporation; (c) at any time during any consecutive
two-year period, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors
4
12
whose election by such Board of Directors or whose nomination for election by
the stockholders of the Company was approved by a vote of at least 66-2/3% of
the directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or (d) the Company is liquidated or
dissolved or adopts a plan of liquidation.
"Common Stock" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and any other primary obligor
on the Notes.
"Company Request" means any written request signed in the name of
the Company by its Chief Executive Officer, its President, any Vice President,
its Chief Financial Officer or its Treasurer and attested to by the Secretary or
any Assistant Secretary of the Company.
"Consolidated Interest Expense" means, for any period, the aggregate
amount of interest which, in conformity with GAAP, would be set forth opposite
the caption "interest expense" or any like caption on an income statement for
the Company and its Restricted Subsidiaries on a consolidated basis (including,
but not limited to, imputed interest included in Capitalized Lease Obligations,
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, the net costs associated
with hedging obligations, the interest portion of any deferred payment
obligation, amortization of discount or premium, if any, and all other non-cash
interest expense (other than interest amortized to cost of sales)) plus, without
duplication, all net capitalized interest for such period and all interest
incurred or paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person, plus an amount
equal to the product of (a) the aggregate dividends paid on Disqualified Capital
Stock during such period and (b) a fraction, the numerator of which is one and
the denominator
5
13
of which is one minus the Company's then effective combined tax rate, to the
extent paid; provided, however, that "Consolidated Interest Expense" shall
exclude the amortization of deferred financing fees.
"Consolidated Net Income" means, for any period, the aggregate of
the Net Income of the Company and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP; provided, however,
that (a) the Net Income of any Person (the "other Person") in which the Company
or any of its Restricted Subsidiaries has less than a 100% interest (which
interest does not cause the net income of such other Person to be consolidated
into the net income of the Company in accordance with GAAP) shall be included
only to the extent of the amount of dividends or distributions paid to the
Company or such Restricted Subsidiary, (b) the Net Income of any Restricted
Subsidiary that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions (other than pursuant to the Notes
or this Indenture) shall be excluded to the extent of such restriction or
limitation, except that to the extent that any such restriction or limitation
results solely from covenant limitations under any SBA Indebtedness, there shall
not be deducted that portion of such Restricted Subsidiary's Net Income which
exceeds the outstanding aggregate principal amount of such SBA Indebtedness,
(c)(i) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition and (ii) any
net gain (but not loss) resulting from an Asset Sale by the Company or any of
its Restricted Subsidiaries other than in the ordinary course of business shall
be excluded, and (d) extraordinary gains and losses shall be excluded.
"Consolidated Net Tangible Assets" means the book value of the
assets of the Company and its Restricted Subsidiaries (other than patents,
patent rights, trademarks, trade names, franchises, copyrights, licenses,
permits, goodwill and other intangible assets classified as such in accordance
with GAAP) after all applicable deductions in accordance with GAAP (including,
without limitation, reserves for doubtful receivables, obsolescence,
depreciation and amortization) less all liabilities of the Company and its
Restricted Subsidiaries determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at
6
14
the date of execution of this Indenture is located at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
"Cumulative Consolidated Interest Expense" means, as of any date of
determination, Consolidated Interest Expense of the Company from November 27,
1996 to the end of the Company's most recently ended full fiscal quarter prior
to such date, taken as a single accounting period.
"Cumulative EBITDA" means, as of any date of determination, EBITDA
of the Company from November 27, 1996 to the end of the Company's most recently
ended full fiscal quarter prior to such date, taken as a single accounting
period.
"Default" means any event that is, or with the passing of time or
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to Global Notes, the Person
designated as Depositary pursuant to Section 2.01 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, such Persons.
"Designated Senior Indebtedness," as to the Company or any
Guarantor, as the case may be, means any Senior Indebtedness (a) under or in
respect of the Senior Credit Facility, or (b) which at the time of determination
exceeds $10 million in aggregate principal amount (or accreted value in the case
of Indebtedness issued at a discount) outstanding or available under a committed
facility, and (i) which is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" and (ii) as to
which the Trustee has been given written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock of the Company
or any Restricted Subsidiary which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness.
7
15
"EBITDA" means, for any Person, for any period, an amount equal to
(a) the sum of, without duplication, (i) Consolidated Net Income for such
period, plus (ii) the provision for taxes for such period based on income or
profits to the extent such income or profits were included in computing
Consolidated Net Income and any provision for taxes utilized in computing net
loss under clause (i) hereof, plus (iii) to the extent it reduces Consolidated
Net Income during such period, Consolidated Interest Expense for such period,
plus (iv) depreciation for such period on a consolidated basis, plus (v)
amortization of intangibles for such period on a consolidated basis, plus (vi)
any other non-cash items reducing Consolidated Net Income for such period, minus
(b) all non-cash items increasing Consolidated Net Income for such period, all
for the Company and its Restricted Subsidiaries determined in accordance with
GAAP.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated as of the Issue Date by and among the
Initial Purchasers, the Company and the Guarantors, as such agreement may be
amended, modified or supplemented from time to time in accordance with the terms
thereof.
"Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement
"fair market value" means, unless otherwise specified, with respect
to any asset or property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair market value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a Board Resolution of the Company delivered to the Trustee.
"Final Maturity Date" shall be the date fixed in the Indenture for
the final payment of principal on the Notes.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Global Note" shall have the meaning set forth in Section
2.02.
8
16
"Guarantee" means the guarantee of the Obligations of the Company
with respect to the Notes by each Guarantor pursuant to the terms of Article 10
hereof.
"Guaranteed Permitted Unrestricted Subsidiary Obligations"
shall have the meaning set forth in the definition of "Investments."
"Guarantor" means each Subsidiary of the Company listed on the
signature pages of this Indenture and each Restricted Subsidiary which
thereafter guarantees payment of the Notes and the Exchange Notes pursuant to
the covenant described under Section 4.18.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation
of any Person, to directly or indirectly create, issue, incur (by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable with
respect to (including as a result of an Asset Acquisition), or otherwise become
responsible for, contingently or otherwise any Indebtedness or other obligation
or the recording, as required pursuant to GAAP or otherwise, of any such
Indebtedness or other obligation on the balance sheet of such Person (and
"incurrence," "incurred," "incurrable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding any balances that constitute accounts payable
or trade payables, and other accrued liabilities arising in the ordinary course
of business) if and to the extent any of the foregoing indebtedness would appear
as a liability upon a balance sheet of such Person prepared in accordance with
GAAP, and shall also include, to the extent not otherwise included (i) any
Capitalized Lease Obligations of such Person, (ii) obligations secured by a lien
to which the property or assets owned or held by such Person is subject, whether
or not the obligation or obligations
9
17
secured thereby shall have been assumed (the amount of such obligation being
deemed to be the lesser of the value of such property or asset or the amount of
the obligations so secured), (iii) guarantees of obligations of other Persons
which would be included within this definition for such other Persons (whether
or not such items would appear upon the balance sheet of the guarantor), (iv)
all obligations for the reimbursement of any obligor on any banker's acceptance
or for reimbursement of any obligor on any letter of credit with respect to
drawings made thereunder and not yet reimbursed, (v) in the case of the Company,
Disqualified Capital Stock of the Company or any Restricted Subsidiary, (vi)
obligations of any such Person under any Interest Rate Agreement applicable to
any of the foregoing (if and to the extent such Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP) and (vii) the outstanding amount of any
Guaranteed Permitted Unrestricted Subsidiary Obligations; provided, however,
that except for purposes of this clause (vii) obligations in respect of
performance and surety bonds and in respect of reimbursement obligations for
undrawn letters of credit (whether or not secured by a lien) supporting
insurance arrangements and performance and surety bonds, each incurred in the
ordinary course of business and not as a part of a financing transaction, for
the benefit of the Company or any Restricted Subsidiary, shall not be considered
Indebtedness for purposes of this Indenture. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above, provided (a) that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the principal amount of such Indebtedness less the remaining unamortized
portion of the original issue discount of such Indebtedness at such time as
determined in conformity with GAAP and (b) that Indebtedness shall not include
any liability for Federal, state, local or other taxes.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Purchasers" means Chase Securities Inc., Xxxxx Xxxxxx Inc.,
BT Alex. Xxxxx Incorporated and Xxxxxxxxxx Securities.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar
10
18
agreement designed to protect the party indicated therein against fluctuations
in interest rates.
"Investments" means, (x) directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business), loan or capital contribution to (by means of transfers of
property to others, payments for property or services for the account or use of
others or otherwise), the purchase of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities of, the acquisition,
by purchase or otherwise, of all or substantially all of the business or assets
or stock or other evidence of beneficial ownership of, any Person and (y) any
Permitted Unrestricted Subsidiary Obligation to the extent it is guaranteed by
the Company or a Restricted Subsidiary or otherwise is recourse to or obligates
the Company or any Restricted Subsidiary, directly or indirectly, contingently
or otherwise, to the satisfaction thereof ("Guaranteed Permitted Unrestricted
Subsidiary Obligations"). Investments shall exclude extensions of trade credit
on commercially reasonable terms in accordance with normal trade practices.
"Issue Date" means September 25, 1997.
"Junior Security" means any securities of the Company or any other
Person that are (i) equity securities without special covenants or (ii)
subordinated in right of payment to all Senior Indebtedness of the Company or
any Guarantor, as the case may be, to substantially the same extent as, or to a
greater extent than, the Notes are subordinated as provided in this Indenture,
in any event issued pursuant to a court order so providing and as to which (a)
the rate of interest on such securities shall not exceed the effective rate of
interest on the Notes on the date of this Indenture, (b) such securities shall
not be entitled to the benefits of covenants or defaults materially more
beneficial to the holders of such securities than those in effect with respect
to the Notes on the date of this Indenture and (c) such securities shall not
provide for amortization (including sinking fund and mandatory prepayment
provisions) commencing prior to the date six months following the final
scheduled maturity date of the Senior Indebtedness of the Company or Guarantor,
as the case may be (as modified by the plan of reorganization or readjustment
pursuant to which such securities are issued).
"Leverage Ratio" means the ratio of (i) the sum of the aggregate
outstanding amount of (x) Indebtedness of the Company and the Restricted
Subsidiaries and (y) except to the extent included in the previous clause (x),
Preferred
11
19
Stock of the Company's Restricted Subsidiaries as of the date of calculation on
a consolidated basis in accordance with GAAP to (ii) the Company's EBITDA for
the four full fiscal quarters (the "Four Quarter Period") ending on or prior to
the date of determination for which financial statements are available. For
purposes of this definition, the Company's "EBITDA" shall be calculated on a pro
forma basis after giving effect to any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of the Company or one of the Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of such Asset Acquisition) incurring, assuming or otherwise becoming
liable for Indebtedness) at any time on or subsequent to the first day of the
Four Quarter Period and on or prior to the date of determination, as if such
Asset Sale or Asset Acquisition (including any EBITDA associated with such Asset
Acquisition and including any pro forma expense and cost reductions determined
in accordance with Article 11 of Regulation S-X relating to such Asset
Acquisition) occurred on the first day of the Four Quarter Period.
"Lien" means, with respect to any property or assets of any Person,
any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Maturity Date" means September 15, 2007.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Income" means with respect to any Person for any period, the
net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock or
Indebtedness by the Company, the aggregate net cash proceeds received by the
Company, after payment of expenses, commissions and the like incurred in
connection therewith, and (b) in the case of any exchange, exercise, conversion
or surrender of outstanding securities of any kind for or into shares of Capital
Stock of the
12
20
Company which is not Disqualified Capital Stock, the net book value of such
outstanding securities on the date of such exchange, exercise, conversion or
surrender (plus any additional amount required to be paid by the holder to the
Company upon such exchange, exercise, conversion or surrender, less any and all
payments made to the holders, e.g., on account of fractional shares and less all
expenses incurred by the Company in connection therewith).
"Non U.S. Person" means a Person who is not a U.S. Person as defined
in Regulation S under the Securities Act.
"Notes" means the securities that are issued under this Indenture,
as amended or supplemented from time to time pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, including any
Guarantee, any principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other expenses payable under the documentation
governing such Indebtedness or Guarantee.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of the
Company or a Guarantor, or any other officer designated by the Board of
Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel
which counsel is reasonably acceptable to the Trustee.
"Permitted Asset Swap" means the exchange, in the ordinary course of
the outdoor advertising business, of any interest of the Company or any of the
Restricted Subsidiaries in any Advertising Display or Displays for a similar
interest in an Advertising Display or Displays of a Person other than the
Company or such Restricted Subsidiary; provided that the aggregate fair market
value (as determined in good faith by the Board of Directors of the Company) of
the Advertising Display or Displays being transferred by the Company or such
Restricted Subsidiary is not greater than the aggregate fair market value (as
determined in good faith by the Board of Directors of the Company) of the
Advertising
13
21
Display or Displays received by the Company or such Restricted Subsidiary in
such exchange.
"Permitted Dividend Encumbrances" means encumbrances or restrictions
(a) existing on the Issue Date, (b) arising by reason of Acquired Indebtedness
of any Restricted Subsidiary existing at the time such Person became a
Restricted Subsidiary; provided that in the case of clause (b) above such
encumbrances or restrictions were not created in anticipation of such Person
becoming a Restricted Subsidiary and are not applicable to the Company or any of
the other Restricted Subsidiaries, (c) arising under Indebtedness incurred
pursuant to clause (i) of the definition of Permitted Indebtedness, (d) arising
under Refinancing Indebtedness; provided that the terms and conditions of any
such restrictions are no less favorable to the Holders of Notes than those under
the Indebtedness being refinanced, (e) customary provisions restricting the
assignment of any contract or interest of the Company or any Restricted
Subsidiary, (f) existing under an agreement relating to SBA Indebtedness, (g)
existing under an agreement relating to any Permitted Lien referred to in clause
(v) of the definition of "Permitted Liens" provided that such encumbrance or
restriction only relates to the assets or property subject to such Permitted
Lien and having an aggregate fair market value equal to the Indebtedness secured
thereby, (h) imposed by applicable law and (i) imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or of any assets of such Restricted
Subsidiary, provided such encumbrances and restrictions apply solely to such
Capital Stock or assets of such Restricted Subsidiary which are the subject of
such binding agreement.
"Permitted Holders" means (x) any of Xxxxxxx Xxxxxxx, Xxxxxxx X.
Xxxxx, III, Xxxxx X. Xxxxxx, Xx., members of their immediate families or any
lineal descendant of any of the foregoing and the immediate families of any such
lineal descendant, (y) any trust, to the extent it is for the benefit of any of
the foregoing or (z) any Person, entity or group of Persons controlled by any of
the foregoing.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company and any Restricted Subsidiaries
which are Guarantors pursuant to the Senior Credit Facility in an
aggregate principal amount not to exceed $400 million, less the aggregate
amount of all permanent repayments thereunder made in
14
22
accordance with Section 4.14 and guarantees of such Indebtedness by
Restricted Subsidiaries that are Guarantors;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the date of this Indenture;
(iv) Indebtedness of the Company to any Wholly-Owned Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary to the Company or
another Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred by the Company or any Restricted Subsidiary to acquire or lease
property in the ordinary course of business, provided that (a) the
aggregate amount of such Purchase Money Indebtedness and Capitalized Lease
Obligations outstanding at any time shall not exceed the greater of (x) 5%
of the Company's Consolidated Net Tangible Assets, at the time of the
incurrence of any such Purchase Money Indebtedness or Capitalized Lease
Obligation or (x) $10 million, and (b) in each case, such Purchase Money
Indebtedness or Capitalized Lease Obligation, as the case may be, would
not constitute more than 100% of the cost (determined in accordance with
GAAP) of the property so purchased or leased plus reasonable fees and
expenses incurred in connection therewith;
(vi) Interest Rate Agreements and any guarantees thereof;
(vii) additional Indebtedness of the Company or any Restricted
Subsidiary that is a Guarantor not to exceed $25 million in principal
amount outstanding at any time; and
(viii) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made on
or after the date of this Indenture consisting of:
(i) Investments by the Company or by a Restricted Subsidiary in the
Company or a Restricted Subsidiary which is a Guarantor;
15
23
(ii) Temporary Cash Investments;
(iii) Investments by the Company or by a Restricted Subsidiary in a
Person, if as a result of such Investment (A) such Person becomes a
Restricted Subsidiary which is a Guarantor or (B) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or
a Restricted Subsidiary which is a Guarantor; and
(iv) an Investment that is made by the Company or a Restricted
Subsidiary in the form of any stock, bonds, notes, debentures, partnership
or joint venture interests or other securities that are issued by a third
party to the Company or such Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under Section 4.14 hereof.
"Permitted Liens" means (i) Liens existing on the Issue Date, (ii)
Liens on property or assets of, or any shares of stock of or secured debt of,
any corporation existing at the time such corporation becomes a Restricted
Subsidiary or at the time such corporation is merged into the Company or any of
the Restricted Subsidiaries; provided that such Liens are not incurred in
connection with, or in contemplation of, such corporation becoming a Restricted
Subsidiary or merging into the Company or any of the Restricted Subsidiaries,
(iii) Liens securing Refinancing Indebtedness; provided that any such Lien does
not extend to or cover any Property, shares or debt other than the Property,
shares or debt securing the Indebtedness so refunded, refinanced or extended,
(iv) Liens in favor of the Company or any of the Restricted Subsidiaries, (v)
Liens to secure Purchase Money Indebtedness that is otherwise permitted under
this Indenture; provided that any such Lien is created solely for the purpose of
securing such Purchase Money Indebtedness and does not extend to or cover any
Property other than such item of Property and any improvements on such item,
(vi) statutory liens or landlords', carriers', warehouseman's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which do not secure any Indebtedness and secure
obligations with respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor, (vii) Liens for taxes, assessments or governmental charges that
are being contested in good faith by appropriate
16
24
proceedings, (viii) Liens securing Capitalized Lease Obligations permitted to be
incurred under clause (v) of the definition of Permitted Indebtedness provided
that any such Lien does not extend to any property other than that subject to
the underlying lease, (ix) Liens securing Senior Indebtedness, (x) Permitted
Dividend Encumbrances and (xi) Liens securing Indebtedness in an aggregate
principal amount not to exceed $1 million outstanding at any time.
"Permitted Unrestricted Subsidiary Obligations" shall have the
meaning specified in the definition of "Unrestricted Subsidiary."
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Private Placement Legend" means the legend set forth under such
caption in the form of Initial Note in Exhibit A hereto.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) under GAAP.
"Public Equity Offerings" means a public offering by the Company of
shares of its common stock (however designated and whether voting or non-voting
but excluding Disqualified Capital Stock) and any and all rights, warrants or
options to acquire such common stock pursuant to a registration statement
registered pursuant to the Securities Act.
"Purchase Agreement" means the Purchase Agreement dated September
19, 1997 among the Company, the Initial Purchasers and the Guarantors.
"Purchase Money Indebtedness" means any Indebtedness incurred by a
Person to finance the cost (including the cost of construction or improvement
and in the case of any Capitalized Lease Obligation, the lease) of
17
25
any real or personal property, the principal amount of which Indebtedness does
not exceed the sum of (i) 100% of such cost and (ii) reasonable fees and
expenses of such Person incurred in connection therewith.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company or the Restricted
Subsidiaries outstanding on the Issue Date or other Indebtedness permitted to be
incurred by the Company or the Restricted Subsidiaries pursuant to the terms of
this Indenture (other than pursuant to clauses (i), (iv), (v), (vi) and (vii) of
the definition of Permitted Indebtedness), but only to the extent that (i) the
Refinancing Indebtedness is subordinated to the Notes to at least the same
extent as the Indebtedness being refunded, refinanced or extended, (ii) the
Refinancing Indebtedness is scheduled to mature either (a) no earlier than the
Indebtedness being refunded, refinanced or extended, or (b) after the maturity
date of the Notes, (iii) the portion, if any, of the Refinancing Indebtedness
that is scheduled to mature on or prior to the maturity date of the Notes has a
weighted average life to maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the weighted average life to maturity
of the portion of the Indebtedness being refunded, refinanced or extended that
is scheduled to mature on or prior to the maturity date of the Notes, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to or
less than the sum of (a) the aggregate principal amount then outstanding under
the Indebtedness being refunded, refinanced or extended, (b) the amount of any
premium required to be paid in connection with such refunding, refinancing or
extension pursuant to the terms of such Indebtedness or the amount of any
premium reasonably determined by the Board of Directors of the Company as
necessary to accomplish such refunding, refinancing or extension by means of a
tender offer or privately negotiated purchase and (c) the amount of customary
fees, expenses and costs related to the incurrence of such Refinancing
Indebtedness, and (v) such Refinancing Indebtedness is incurred by the same
Person that initially incurred the Indebtedness being refunded, refinanced or
extended, except that the Company may incur Refinancing Indebtedness to refund,
refinance or extend Indebtedness of any Wholly-Owned Restricted Subsidiary.
18
26
"Registered Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"Related Business" means the business conducted (or proposed to be
conducted) by the Company and its Restricted Subsidiaries as of the Issue Date
and any all businesses that in the good faith judgment of the Board of Directors
of the Company are materially related businesses.
"Responsible Officer" when used with respect to the Trustee, means
any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payment" means any of the following: (i) the declaration
or payment of any dividend or any other distribution or payment on Capital Stock
of the Company or any Restricted Subsidiary of the Company or any payment made
to the direct or indirect holders (in their capacities as such) of Capital Stock
of the Company or any Restricted Subsidiary of the Company (other than (x)
dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase Capital
Stock (other than Disqualified Stock), and (y) in the case of Restricted
Subsidiaries of the Company, dividends or distributions payable to the Company
or to a Wholly-Owned Restricted Subsidiary), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Company or
any of the Restricted Subsidiaries (other than Capital Stock owned by the
Company or a Wholly-Owned Restricted Subsidiary), (iii) the making of any
principal payment on, or the purchase, defeasance, repurchase, redemption or
other acquisition or retirement for value, prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of any Indebtedness which
is subordinated or pari passu in right of payment to the Notes, (iv) the making
of any Investment or guarantee of any Investment in any Person other than a
Permitted Investment, (v) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary to the extent set forth in the definition of
Unrestricted Subsidiary and (vi) forgiveness of any Indebtedness of an Affiliate
of the Company (other than a Wholly-Owned Restricted Subsidiary) to the Company
or a Restricted Subsidiary. For purposes of determining the amount expended for
Restricted Payments, cash distributed or invested shall
19
27
be valued at the face amount thereof and property other than cash shall be
valued at its fair market value.
"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 of the Company may
designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary of the Company 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 (other than Permitted Indebtedness) pursuant to
Section 4.10 and no Default or Event of Default shall have occurred and be
continuing.
"S&P" means Standard & Poor's Corporation and its successors.
"SBA Indebtedness" means Indebtedness incurred pursuant to the
United States Small Business Administration Disaster Relief Loan program or any
similar loan program, provided that such Indebtedness shall at all times be
prepayable without penalty at the option of the
obligor.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Credit Facility" means the Credit Agreement dated as of
December 18, 1996, as amended to date, among the Company, the guarantor parties
thereto, the several lenders from time to time parties thereto and The Chase
Manhattan Bank, as agent, together with the documents related 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 the maturity of, refinancing,
replacing, consolidating or otherwise restructuring (including adding
Subsidiaries of the Company as additional guarantors 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
and whether or not increasing the amount of Indebtedness that may be incurred
thereunder.
20
28
"Senior Indebtedness" means the principal of and premium, if any,
and interest (including, without limitation, interest accruing or that would
have accrued but for the filing of a bankruptcy, reorganization or other
insolvency proceeding whether or not such interest constitutes an allowable
claim in such proceeding) on, and any and all other fees, charges, expense
reimbursement obligations, and other amounts due pursuant to the terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all obligations owed
to lenders under the Senior Credit Facility, (b) all obligations with respect to
any Interest Rate Agreement, (c) all obligations to reimburse any bank or other
person in respect of amounts paid under letters of credit, acceptances or other
similar instruments, (d) all other current or future Indebtedness which does not
provide that it is to rank pari passu with or subordinate to the Notes or the
Guarantees and (e) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the Senior Indebtedness
described above. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness will not include (i) Indebtedness of the Company to any of
its Subsidiaries or Indebtedness of any Subsidiary of the Company to the Company
or any other Subsidiary of the Company, (ii) Indebtedness represented by the
Notes and the Guarantees, (iii) any Indebtedness which by the express terms of
the agreement or instrument creating, evidencing or governing the same is junior
or subordinate in right of payment to any item of Senior Indebtedness, (iv) to
the extent it constitutes Indebtedness, any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business, (v) Indebtedness represented by Disqualified Capital Stock or (vi)
that portion of any Indebtedness which is incurred in violation of this
Indenture, provided, however, that in the case of any Indebtedness (regardless
of whether or not such Indebtedness is incurred pursuant to the first or second
paragraph of Section 4.10), such Indebtedness shall not be deemed to have been
incurred in violation of this Indenture if the holder(s) of such Indebtedness or
their agent or representative shall have received a representation from the
Company to the effect that the incurrence of such Indebtedness does not violate
the provisions of this Indenture (but nothing in this clause (vi) shall preclude
the existence of any Default or Event of Default in the event that such
Indebtedness is in fact incurred in violation of this Indenture).
21
29
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held, directly or indirectly by such
Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to which such Person
or any of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with such Person for financial
statement purposes.
"Temporary Cash Investments" or "cash equivalents" means (i)
Investments in marketable, direct obligations issued or guaranteed by the United
States of America, or of any governmental agency or political subdivision
thereof, maturing within 365 days of the date of purchase; (ii) Investments in
certificates of deposit issued by a bank (including the Trustee in its
individual commercial capacity) organized under the laws of the United States of
America or any state thereof or the District of Columbia, in each case having
capital, surplus and undivided profits totaling more than $500,000,000 and rated
at least A by S&P and A-2 by Moody's, maturing within 365 days of purchase; or
(iii) Investments not exceeding 365 days in duration in money market funds that
invest substantially all of such funds' assets in the Investments described in
the preceding clauses (i) and (ii).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
22
30
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company, but only so long as (i) no
portion of the Indebtedness or any other obligation (contingent or otherwise) of
such Unrestricted Subsidiary (other than obligations in respect of performance
and surety bonds and in respect of reimbursement obligations for undrawn letters
of credit supporting insurance arrangements and performance and surety bonds,
each incurred in the ordinary course of business and not as part of a financing
transaction (collectively, "Permitted Unrestricted Subsidiary Obligations")) (A)
is guaranteed by the Company or any Restricted Subsidiary, (B) is recourse to or
obligates the Company or any Restricted Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to satisfaction thereof, (ii) such
Unrestricted Subsidiary has no Indebtedness or any other obligation (other than
Permitted Unrestricted Subsidiary Obligations) that, if in default in any
respect (including a payment default), would permit (upon notice, lapse of time
or both) any holder of any other Indebtedness of the Company or its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity and
(iii) no Default or Event of Default shall have occurred and be continuing. Any
designation of a Subsidiary as an Unrestricted Subsidiary shall be deemed a
Restricted Payment in an amount equal to the fair market value of such
Subsidiary (as determined in good faith by the Board of Directors of the
Company) and any such designation shall be permitted only if it complies with
Section 4.12. The Trustee shall be given prompt notice by the Company of each
resolution adopted by the Board of Directors of the Company pursuant to the
foregoing sentence, together with a copy of each such resolution adopted.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
to vote under ordinary circumstances in the election of members of the board of
directors or other governing body of such Person.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding Voting Stock
23
31
(other than directors' qualifying shares) of which are owned, directly or
indirectly, by the Company.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Defined
Term in Section
"Affiliate Transaction"...................... 4.15
"Bankruptcy Law"............................. 6.01
"Business Day"............................... 12.08
"Change of Control Offer".................... 4.21
"Change of Control Date"..................... 4.21
"Change of Control Purchase Price"........... 4.21
"Covenant Defeasance"........................ 9.03
"Custodian".................................. 6.01
"Event of Default"........................... 6.01
"Excess Proceeds Offer"...................... 4.14
"Exchange Notes"............................. Preamble
"Funding Guarantor".......................... 10.11
"Guarantee Payment Blockage Period".......... 10.07
"Guarantor Payment Default".................. 10.07
"Guarantor Payment Notice"................... 10.07
"IAI"........................................ 2.01
"Initial Notes".............................. Preamble
"Legal Defeasance"........................... 9.02
"Legal Holiday".............................. 12.08
"Offer Period"............................... 4.14
"Pari Passu Excess Proceeds Offer............ 4.14
"Paying Agent"............................... 2.03
"Payment Blockage Period".................... 11.02
"Payment Default"............................ 11.02
"Payment Notice"............................. 11.02
"Purchase Date".............................. 4.14
"Registrar".................................. 2.03
"Reinvestment Date".......................... 4.14
"Resale Restriction Termination Date"........ 2.15
24
32
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes or the Guarantees.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
25
33
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) The Initial Notes (including Global Notes) and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
which is incorporated in and made part of this Indenture. Any Exchange Notes and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit B, which is incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company may use "CUSIP" numbers in
issuing the Notes. The Company shall approve the form of the Notes. Each Note
shall be dated the date of its authentication.
(b) The terms and provisions contained in the Notes and the
Guarantee shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(c) The Notes are being offered and sold by the Company pursuant to
the Purchase Agreement. Notes offered and sold to "qualified institutional
buyers" (as defined in Rule 144A under the Securities Act ("Rule 144A"))
("QIBs") in accordance with Rule 144A as provided in the Purchase Agreement,
shall be issued on the Issue Date initially in the form of a permanent Global
Note substantially in the form set forth in Exhibit A (the "QIB Global Note").
On the Issue Date, a similar Global Note (the "IAI Global Note", and with the
QIB Global Note each a "Global Note") will also be issued to accommodate
transfers of Notes from QIBs to institutional "Accredited Investors" (within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) ("IAIs").
On the Issue Date, each Global Note will be deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company (and the Guarantors
will execute the Guarantees endorsed thereon) and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of each Global Note may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided in accordance with the Trustee's and Depositary's standard operating
procedures. Transfers of Initial Notes from QIBs to IAIs, and from IAIs to QIBs,
will be represented by appropriate increases and
26
34
decreases to the respective amounts of the appropriate Global Notes, as more
fully provided in Section 2.14.
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two Officers
of the Company or an Officer and an Assistant Secretary of the Company and the
Guarantees shall be executed on behalf of the Guarantors by two Officers of each
of the Guarantors or an Officer and an Assistant Secretary of each of the
Guarantors.
Such signature may be either manual or facsimile. The Company's seal
may be impressed, affixed, imprinted or reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall (1) authenticate
Initial Notes for original issue in the aggregate principal amount of
$200,000,000 and (2) authenticate Exchange Notes for issue only in a Registered
Exchange Offer, pursuant to the Exchange and Registration Rights Agreement, for
Initial Notes for a like principal amount of Initial Notes exchanged pursuant
thereto, in each case upon a Company Request. The aggregate principal amount of
Notes outstanding at any time may not exceed $200,000,000 except as provided in
Section 2.07 hereof. The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and integral multiples thereof.
The Company Request directing the authentication and delivery of
Notes shall specify whether such Notes shall be issued in the form of definitive
Notes or Global Notes. Such Company Request shall specify the amount of the
Notes to be authenticated, the date on which the original issue of the Notes is
to be authenticated and whether the Notes are to be Initial Notes or Exchange
Notes. If the Company Request specifies that the Notes are to be issued in the
form of one or more Global Notes, then the Company shall execute (and the
Guarantors will execute the Guarantees endorsed thereon) and the Trustee shall,
in accordance with
27
35
this Section and such Company Request, authenticate and deliver one or more
Global Notes in definitive form that:
(a) shall be registered in the name of the Depositary or a nominee
of such Depositary,
(b) shall, at the instruction of the Company, be delivered by the
Trustee to the Depositary or held by the Trustee as custodian for the
Depositary, and
(c) shall include and bear a legend substantially to the effect that
unless and until it is exchanged in whole or in part for definitive Notes, such
Global Notes may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
The Depositary must, at the time of its designation and at all times
when it serves as Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Any appointment shall be
evidenced by instrument signed by an authorized officer of the Trustee, a copy
of which shall be furnished to the Company. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same right as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Notes may be presented for payment ("Paying Agent") and an office or
agency where notices and demands to or upon the Company or any Guarantor in
respect of the Notes, Guarantees and this Indenture may be served. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. Neither the Company nor any Affiliate of the Company may act as Paying
Agent. The Company may change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder.
28
36
The Company shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes
and the office or agency in the Borough of Manhattan for purposes of this
Section 2.03 and 4.09 shall initially be:
State Street Bank and Trust Company, N.A.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Location: Concourse Level
Corporate Trust Window
Section 2.04. Paying Agent To Hold Assets in Trust.
The Trustee as Paying Agent shall, and the Company shall require
each Paying Agent other than the Trustee to agree in writing that, subject to
Articles 10 and 11, each Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee in writing of any Default
by the Company (or any other obligor on the Notes) in making any such payment.
The Company at any time may require a Paying Agent to distribute all assets held
by it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment default with respect to the
Notes, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
29
37
Section 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee as of each Record Date and on or before each related Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Noteholders.
Section 2.06. Transfer and Exchange.
Subject to the provisions of this Section 2.06, when a Note is
presented to the Registrar with a request to register the transfer thereof, the
Registrar shall register the transfer as requested if the requirements of
applicable law are met and, when Notes are presented to the Registrar with a
request to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall make the exchange as requested. To
permit transfers and exchanges, upon surrender of any Note for registration of
transfer at the office or agency maintained pursuant to Section 2.03 hereof,
subject to the provisions of this Section 2.06, the Company shall execute (and
the Guarantors will execute the Guarantees endorsed thereon) and the Trustee
shall authenticate Notes at the Registrar's request.
Notwithstanding any other provision of this Section 2.06, unless and
until it is exchanged in whole or in part for definitive Notes, a Global Note
may not be transferred except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
If (i) the Depositary is at any time unwilling, unable or ineligible
to continue as Depositary and a successor Depositary is not appointed by the
Company within 60 days of the date the Company is so informed in writing or
becomes aware of the same, or (ii) an Event of Default has occurred and is
continuing, the Company promptly will execute (and the Guarantors will execute
the Guarantees endorsed thereon) and deliver to the Trustee definitive Notes,
and the Trustee, upon receipt of a Company Request for the authentication and
delivery of such definitive Notes (which the Company will promptly execute and
deliver to the Trustee), will authenticate and deliver definitive Notes,
30
38
without charge, in an aggregate principal amount equal to the principal amount
of the outstanding Global Notes, in exchange for and upon surrender of all such
Global Notes.
In any exchange provided for in the preceding paragraph, the Company
will execute (and the Guarantors will execute the Guarantees endorsed thereon)
and the Trustee will authenticate and deliver definitive Notes in the authorized
denominations provided by Section 2.01.
Upon the exchange of a Global Note for definitive Notes, such Global
Note shall be canceled by the Trustee. Definitive Notes issued in exchange for
Global Notes pursuant to this Section 2.06 shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration or transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar or a
co-Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or a
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
Any exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to
Sections 2.09, 3.06, 4.14, 4.21 or 8.05 hereof. The Trustee shall not be
required to register transfers of Notes or to exchange Notes for a period of 15
days before selection of any Notes to be redeemed. The Trustee shall not be
required to exchange or register transfers of any Notes called or being called
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note presents evidence to the
31
39
satisfaction of the Company and the Trustee that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Trustee's requirements are met. An
indemnity bond may be required by the Company or the Trustee that is sufficient
in the judgment of the Company and the Trustee to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Note is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note, including reasonable fees and expenses of counsel.
Every replacement Note is an additional obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding until
the Company and the Trustee receive proof satisfactory to each of them that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and accrued interest on
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
Subject to Section 12.06, a Note does not cease to be outstanding
solely because the Company or an Affiliate holds the Note.
Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights, of definitive
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes
presented to it.
32
40
Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. At the
direction of the Trustee, the Registrar or the Paying Agent, and no one else,
shall cancel and at the written request of the Company, shall dispose of all
Notes surrendered for transfer, exchange, payment or cancellation. If the
Company or any Guarantor shall acquire any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
such Notes unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.10.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the special record date, the Company shall mail or cause to be
mailed to each Noteholder, with a copy to the Trustee, a notice that states the
special record date, the payment date, and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment
Date and on the Maturity Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or on the Maturity Date, as the case may
be, in a timely manner which permits the Trustee to remit payment to the Holders
on such Interest Payment Date or on the Maturity Date, as the case may be.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness
33
41
or accuracy of the CUSIP number(s) printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed on
the Notes.
Section 2.14. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name
of the Depositary for such Global Note or the nominee of such Depositary and
(ii) be delivered to the Trustee as custodian for such Depositary.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary, or the Trustee as its custodian, or under
such Global Note, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Trustee or the Company from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or shall
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.15. If required to do so pursuant to any applicable
law or regulation, beneficial owners may obtain definitive Notes in exchange for
their beneficial interests in a Global Note upon written request in accordance
with the Depositary's and the Registrar's procedures.
(c) In connection with any transfer of a portion of the beneficial
interest in a Global Note pursuant to subsection (b) of this Section 2.14 to
beneficial owners identified by the Depositary who are required to hold
definitive Notes, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Note in an amount equal to
the principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute (and the Guarantors will execute the
Guarantees endorsed thereon), and the Trustee shall authenticate and deliver,
one or more definitive Notes of like tenor and amount.
34
42
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to subsection (b) of this Section 2.14, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver (and the
Guarantors will execute the Guarantees endorsed thereon), to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of definitive Notes of
authorized denominations.
(e) Any definitive Note delivered in exchange for an interest in a
Global Note pursuant to subsection (c) or subsection (d) of this Section 2.14
shall, except as otherwise provided by paragraph (d) of Section 2.15, bear the
Private Placement Legend.
(f) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
Section 2.15. Special Transfer Provisions.
Unless and until an Initial Note is transferred or exchanged under
an effective registration statement under the Securities Act, the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of an Initial Note to any IAI
which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of such Initial Note
if (x) the requested transfer is after the date that is two years after
the later of the Issue Date and the last date on which the Company or any
of its Affiliates was the owner of such Initial Note (such later date, the
"Resale Restriction Termination Date") or (y) the proposed transferee has
delivered to the Registrar a certificate substantially in the form set
forth in Exhibit C.
(ii) If the proposed transferee is an Agent Member, and the Initial
Note to be transferred consists of a definitive Note or an interest in the
QIB Global Note, upon receipt by the Registrar of (x) the document, if
any, required by paragraph (i) and (y) instructions given in accordance
with the Depositary's
35
43
and the Registrar's procedures therefor, the Registrar shall reflect on
its books and records the transfer date and an increase in the principal
amount of the IAI Global Note in an amount equal to (x) the principal
amount of the definitive Notes to be transferred, and the Trustee shall
cancel the definitive Note so transferred or (y) the amount of the
beneficial interest in the QIB Global Note to be so transferred (in which
case the Registrar shall reflect on its books and records the date and an
appropriate decrease in the principal amount of the QIB Global Note).
(iii) If the proposed transferee is entitled to receive a definitive
Note as provided in Section 2.14 and the proposed transferor is an Agent
Member holding a beneficial interest in a Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of such Global Note in an
amount equal to the principal amount of the beneficial interest in such
Global Note to be transferred, and the Company shall execute (and the
Guarantors will execute the Guarantees endorsed thereon), and the Trustee
shall authenticate and deliver, one or more definitive Notes of like tenor
and amount.
(iv) If the Initial Note to be transferred consists of definitive
Notes and the proposed transferee is entitled to receive a definitive Note
as provided in Section 2.14, upon receipt by the Registrar of the
document, if any, required by paragraph (i), the Registrar shall register
such transfer and the Company shall execute (and the Guarantors will
execute the Guarantees endorsed thereon), and the Trustee shall
authenticate and deliver, one or more definitive Notes of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Note to a QIB
(excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of definitive Notes or an
interest in the IAI Global Note, the Registrar shall register the transfer
if such transfer is being made by a proposed transferor who has provided
the Registrar with a certificate substantially in the form set forth in
Exhibit F hereto.
36
44
(ii) If the proposed transferee is an Agent Member, and the Initial
Note to be transferred consists of definitive Notes or an interest in the
IAI Global Note, upon receipt by the Registrar of (x) the document, if
any, required by paragraph (i) and (y) instructions given in accordance
with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the QIB Global Note in an amount equal to (x)
the principal amount of the definitive Notes, to be transferred, and the
Trustee shall cancel the definitive Note so transferred or (y) the amount
of the beneficial interest in the IAI Global Note to be so transferred (in
which case the Registrar shall reflect on its books and records the date
and an appropriate decrease in the principal amount of the IAI Global
Note).
(iii) If the proposed transferee is entitled to receive a definitive
Note as provided in Section 2.14 and the proposed transferor is an Agent
Member holding a beneficial interest in a Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of such Global Note in an
amount equal to the principal amount of the beneficial interest in such
Global Note to be transferred, and the Company shall execute (and the
Guarantors will execute the Guarantees endorsed thereon), and the Trustee
shall authenticate and deliver, one or more definitive Notes of like tenor
and amount.
(iv) If the Initial Note to be transferred consists of definitive
Notes and the proposed transferee is entitled to receive a definitive Note
as provided in Section 2.14, upon receipt by the Registrar of the
document, if any, required by paragraph (i), the Registrar shall register
such transfer and the Company shall execute (and the Guarantors will
execute the Guarantees thereon), and the Trustee shall authenticate and
deliver, one or more definitive Notes of like tenor and amount.
(c) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
37
45
(i) The Registrar shall register any proposed transfer of an Initial
Note to a Non-U.S. Person upon receipt of a certificate substantially in
the form set forth in Exhibit G from the proposed transferor and the
Company shall execute (and the Guarantors will execute the Guarantees
endorsed thereon), and the Trustee shall authenticate and make available
for delivery, one or more definitive Notes.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of (x)
the document required by paragraph (i), and (y) instructions in accordance
with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and a decrease
in the principal amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred and the Company shall
execute (and the Guarantors will execute the Guarantees endorsed thereon),
and the Trustee shall authenticate and deliver, one or more definitive
Notes of like tenor and amount.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) such transfer, exchange or replacement of such Notes occurs
after the Resale Restriction Termination Date (which date shall be set forth in
an Officers' Certificate of the Company delivered to the Trustee) or (ii) there
is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15.
The Company shall have the right to inspect and make copies of all such
38
46
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE 3.
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 6 of the
Notes, it shall notify the Trustee of the Redemption Date and the principal
amount of Notes to be redeemed at least 30 days (unless a shorter notice shall
be satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.02. Selection by Trustee of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed pro rata, by lot or by any other method that the
Trustee considers fair and appropriate and, if such Notes are listed on any
securities exchange, by a method that complies with the requirements of such
exchange; provided, however, that if a partial redemption is made with the
proceeds of a Public Equity Offering, selection of Notes for redemption shall be
made on a pro rata basis, unless such method is otherwise prohibited.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or integral multiples thereof)
of the principal amount of Notes that have denominations larger than $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption
Date, the Company shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each
39
47
Holder of Notes to be redeemed at his or her last address as the same appears on
the registry books maintained by the Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including the
CUSIP number(s) thereof, if any,) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless (a) the Company defaults in making the redemption
payment or (b) such redemption payment is prohibited pursuant to Article
10 or 11 hereof or otherwise, interest on the Notes called for redemption
ceases to accrue on and after the Redemption Date, and the only remaining
right of the Holders of such Notes is to receive payment of the redemption
price upon surrender to the Paying Agent of the Notes redeemed;
(7) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
40
48
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, plus interest, if any, accrued to (but not including) the
Redemption Date. Upon surrender to the Trustee or Paying Agent, such Notes shall
be paid at the redemption price, plus accrued interest, if any, to (but not
including) the Redemption Date unless prohibited by Article 10 or 11, provided
that if the Redemption Date is after a regular interest payment record date and
on or prior to the next Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record
date.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest, if
any, on all Notes to be redeemed on that date other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph and the
Company and the Paying Agent are not prohibited from paying such moneys to
Holders, the Notes called for redemption will cease to accrue interest and the
only right of the Holders of such Notes will be to receive payment of the
redemption price of and, subject to the proviso in Section 3.04, accrued and
unpaid interest on such Notes to the Redemption Date. If any Note called for
redemption shall not be so paid, interest will be paid, from the Redemption Date
until such redemption payment is made, on the unpaid principal of the Note and
any interest not paid on such unpaid principal, in each case, at the rate and in
the manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
41
49
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay such installment and is not prohibited from
paying such money to the Holders pursuant to the terms of this Indenture or
otherwise.
The Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
The Company will deliver to the Trustee and Holders of Notes within
15 days after the filing of the same with the SEC, copies of the quarterly and
annual report and of the information documents and other reports, if any, which
the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the SEC, to the extent permitted, and provide the Trustee,
Holders of Notes and prospective holders of Notes with such quarterly and annual
reports and such information, documents and other reports specified in Section
13 and 15(d) of the Exchange Act. The Company will also comply with the other
provisions of TIA Section 314(a).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenant (to the extent that it may
lawfully do so) that they will not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company or such Guarantor, as the case may be,
from paying all or any portion of the principal of, premium, if any, and/or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that they may lawfully do so) the Company
42
50
and each Guarantor hereby expressly waive all benefit or advantage of any such
law, and covenant that they 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 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company (commencing with the fiscal year
ended December 31, 1997) and on or before 45 days after the end of the first,
second and third quarters of each fiscal year of the Company, an Officers'
Certificate which complies with TIA Section 314(a)(4) stating that a review of
the activities of the Company and its Subsidiaries during such fiscal year or
fiscal quarter, as the case may be, has been made under the supervision of the
signing Officers with a view to determining whether each has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge each has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action each is taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Notes is prohibited or if such event has occurred, a description of the
event and what action each is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.02 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that the Company has violated
any provisions of this Article 4 or Article 5 hereof of this Indenture or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable
43
51
directly or indirectly for any failure to obtain knowledge of any such
violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee an Officers' Certificate specifying such event,
notice or other action within five Business Days of its becoming aware of such
occurrence.
Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by GAAP.
Section 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used in, or useful to the
conduct of, its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries, taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
in the good faith judgment of the Board of Directors of the Company or the
Subsidiary concerned, as the case may be, desirable in
44
52
the conduct of the business of the Company or such Subsidiary, as the case may
be, and is not disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself
and each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and such Restricted Subsidiaries in a prudent
manner, 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, in the good faith
judgment of the Company, for corporations similarly situated in the industry,
unless the failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole.
Section 4.07. Compliance with Laws.
The Company shall, and shall cause each of its Subsidiaries to,
comply with all applicable statutes, rules, regulations, orders and restrictions
of the United States of America, all states and municipalities thereof, and of
any governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of its
businesses and the ownership of its properties, except for such noncompliances
as would not in the aggregate have a material adverse effect on the business or
financial condition of the Company and its Subsidiaries, taken as a whole.
Section 4.08. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company and of
each Restricted Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of
45
53
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
Section 4.09. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Notes 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
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the 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 as set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of 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 set forth in Section 12.02 as such office of the Company.
Section 4.10. Limitation on Additional Indebtedness and Preferred Stock of
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) other than Permitted Indebtedness and will not permit any
Restricted Subsidiary to issue any Preferred Stock, unless (a) after giving
effect to the incurrence of such Indebtedness and the issuance of any such
Preferred Stock and the receipt and application of the proceeds thereof, the
Company's Leverage Ratio is less than (i) 6.50 to 1 if such Indebtedness is
incurred or Preferred Stock is issued, as the case may be, on or prior to
December 1, 1999, (ii) 6.25 to 1 if such Indebtedness is incurred or Preferred
Stock is issued, as the case may be, after December 1, 1999 and on or prior to
December 1, 2001 and (iii) 6.00 to 1 if such Indebtedness is
46
54
incurred or Preferred Stock is issued, as the case may be thereafter, and (b) no
Default or Event of Default shall have occurred and be continuing at the time or
as a consequence of the incurrence of such Indebtedness or issuance of such
Preferred Stock. Notwithstanding the foregoing, Preferred Stock may only be
issued by a Restricted Subsidiary of the Company pursuant to the preceding
sentence to the extent such Restricted Subsidiary is a Guarantor.
Notwithstanding the foregoing, the Company and the Restricted
Subsidiaries may incur Permitted Indebtedness; provided that the Company will
not incur any Permitted Indebtedness that ranks junior in right of payment to
the Notes that has a maturity or mandatory sinking fund payment prior to the
maturity of the Notes.
Section 4.11. Limitation on Issuances and Sales of Preferred Stock by Restricted
Subsidiaries.
The Company (a) will not permit any of its Restricted Subsidiaries
to issue any Preferred Stock (other than to the Company or a Wholly-Owned
Restricted Subsidiary of the Company or as permitted by the first paragraph of
Section 4.10) and (b) will not permit any Person (other than the Company or a
Wholly-Owned Restricted Subsidiary of the Company) to own any Preferred Stock of
any Restricted Subsidiary of the Company; provided, however, that this Section
4.11 shall not prohibit the issuance and sale of (x) all, but not less than all,
of the issued and outstanding Capital Stock of any Restricted Subsidiary of the
Company owned by the Company or any of its Restricted Subsidiaries in compliance
with the other provisions of this Indenture or (y) to the extent mandated by
applicable law, directors' qualifying shares or investments by foreign
nationals.
Section 4.12. Limitation on Restricted Payments.
The Company will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such Restricted
Payment, the Company could incur $1.00
47
55
of additional Indebtedness (other than Permitted Indebtedness) under
Section 4.10; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after November 27,
1996 does not exceed the sum of (1) 100% of the Company's Cumulative
EBITDA minus 1.4 times the Company's Cumulative Consolidated Interest
Expense, plus (2) 100% of the aggregate Net Proceeds and the fair market
value of securities or other property received by the Company from the
issue or sale, after November 27, 1996, of Capital Stock (other than
Disqualified Capital Stock or Capital Stock of the Company issued to any
Subsidiary of the Company) of the Company or any Indebtedness or other
securities of the Company convertible into or exercisable or exchangeable
for Capital Stock (other than Disqualified Capital Stock) of the Company
which has been so converted or exercised or exchanged, as the case may be,
plus (3) $25 million plus (4) the net reductions in Investments (other
than reductions in Permitted Investments) in any Person resulting from
payments of interest on Indebtedness, dividends, repayments of loans,
partial or total releases or discharges of Guaranteed Permitted
Unrestricted Subsidiary Obligations, or from designations of Unrestricted
Subsidiaries as Restricted Subsidiaries, valued in each case at the fair
market value thereof, not to exceed the amount of Investments previously
made by the Company and its Restricted Subsidiaries in such Person. For
purposes of determining under this clause (c) the amount expended for
Restricted Payments, cash distributed shall be valued at the face amount
thereof and property other than cash shall be valued at its fair market
value as determined by the Board of Directors of the Company reasonably
and in good faith.
The provisions of this Section 4.12 shall not prohibit (i) the
payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture, (ii) the retirement of any shares of Capital Stock
of the Company or Indebtedness which is subordinated or pari passu in right of
payment to the Notes by conversion into, or by or in exchange for, shares of
Capital Stock (other than Disqualified Capital Stock), or out of the Net
Proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of other shares of Capital Stock of the Company (other than
Disqualified Capital Stock); provided, however, that the amount of any such Net
Proceeds that are utilized for any such retirement shall be
48
56
excluded from clause (c)(2) of the previous paragraph, (iii) the redemption or
retirement of Indebtedness of the Company which is subordinated or pari passu in
right of payment to the Notes in exchange for, by conversion into, or out of the
Net Proceeds of, a substantially concurrent sale or incurrence of Indebtedness
of the Company (other than any Indebtedness owed to a Subsidiary of the Company)
that is, with respect to any such subordinated Indebtedness, contractually
subordinated in right of payment to the Notes to at least the same extent as the
subordinated Indebtedness being redeemed or retired, with respect to any such
pari passu Indebtedness, pari passu or subordinated in right of payment to the
Notes and, with respect to any such subordinated or pari passu Indebtedness, (x)
has no Stated Maturity earlier than the 91st day after the Final Maturity Date
or the final maturity date of the Indebtedness being redeemed or retired,
whichever is earlier and (y) has an Average Life to Stated Maturity equal to or
greater than the remaining Average Life to Stated Maturity of the Indebtedness
being redeemed or retired; provided, however, that the amount of any such Net
Proceeds that are utilized for any such redemption or retirement shall be
excluded from clause (c)(2) of the preceding paragraph, (iv) the funding of
loans (but not including the forgiveness of any such loan) to executive
officers, directors and shareholders for relocation loans, bonus advances and
other purposes consistent with past practices or the purchase, redemption or
other acquisition for value of shares of Capital Stock of the Company (other
than Disqualified Capital Stock) or options on such shares held by the Company's
or the Restricted Subsidiaries' officers or employees or former officers or
employees (or their estates or trusts or beneficiaries under their estates or
trusts for the benefit of such beneficiaries) upon the death, disability,
retirement or termination of employment of such current or former officers or
employees pursuant to the terms of an employee benefit plan or any other
agreement pursuant to which such shares of Capital Stock or options were issued
or pursuant to a severance, buy-sell or right of first refusal agreement with
such current or former officer or employee; provided that the aggregate amount
of any such loans funded and cash consideration paid, or distributions made,
pursuant to this clause (iv) do not in any one fiscal year exceed $1 million,
and (v) the making of Investments in Unrestricted Subsidiaries and joint
ventures in an aggregate amount not to exceed $20 million; provided, however,
that the Company or the Restricted Subsidiaries may make additional Investments
pursuant to this clause (v) up to an aggregate amount not to exceed $10 million
if the Company is able, at the time of any such Investment and immediately after
giving effect thereto, to incur at least $1.00 of additional
49
57
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.10; provided, further, that in calculating the aggregate amount of Restricted
Payments made subsequent to November 27, 1996 for purposes of clause (c) of the
immediately preceding paragraph, amounts expended pursuant to clause (i) and (v)
shall be included in the calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.12 were computed, which calculations may
be based upon the Company's latest available financial statements, and that no
Default or Event of Default exists and is continuing and no Default or Event of
Default will occur immediately after giving effect to any Restricted Payments.
Section 4.13. Limitation on Other Senior Subordinated Debt.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness that is both (i) subordinate in right of payment to any Senior
Indebtedness of the Company or any of the Guarantors, as the case may be, and
(ii) senior in right of payment to the Notes or any of the Guarantees, as the
case may be.
Section 4.14. Limitation on Certain Asset Sales.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time of
such sale or other disposition at least equal to the fair market value thereof
(as determined in good faith by the Company's Board of Directors, and evidenced
by a Board Resolution); (ii) not less than 75% of the consideration received by
the Company or such Restricted Subsidiary, as the case may be, is in the form of
cash or Temporary Cash Investments; provided, however, that the amount of (x)
any liabilities of the Company or any Restricted Subsidiaries that are assumed
by the transferee of such assets and for which the Company and its Restricted
Subsidiaries are released, including any such Indebtedness of a Restricted
Subsidiary whose stock is purchased by the transferee and (y) any notes or other
securities received by the Company or any such Restricted Subsidiary which are
converted into cash within 180 days of such Asset Sale (to the extent of cash
received) shall be
50
58
deemed to be cash for purposes of this provision; provided, further, that the
Company or such Restricted Subsidiary will not be required to comply with this
clause (ii) with respect to a Permitted Asset Swap; and (iii) the Asset Sale
Proceeds received by the Company or such Restricted Subsidiary are applied (a)
first, to the extent the Company elects, or is required, to permanently prepay,
repay or purchase existing Senior Indebtedness (or Purchase Money Indebtedness
that ranks pari passu in right of payment with the Notes solely to the extent
that such Asset Sale involves property or assets securing such Purchase Money
Indebtedness pursuant to a Lien granted pursuant to clause (v) of the definition
of Permitted Liens) within 270 days following the receipt of the Asset Sale
Proceeds from any Asset Sale; provided that any such repayment shall result in a
permanent reduction of the commitments thereunder in an amount equal to the
principal amount so repaid; (b) second, to the extent of the balance of Asset
Sale Proceeds after application as described above, to the extent the Company
elects, to an investment in assets (including Capital Stock or other securities
purchased in connection with the acquisition of Capital Stock or property of
another Person) used or useful in businesses similar or ancillary to the
business of the Company and the Restricted Subsidiaries as conducted at the time
of such Asset Sale, provided that such investment occurs and such Asset Sale
Proceeds are so applied within 270 days following the receipt of such Asset Sale
Proceeds (the "Reinvestment Date"); and (c) third, if on the Reinvestment Date
with respect to any Asset Sale, the Available Asset Sale Proceeds exceed $10
million, the Company shall apply an amount equal to such Available Asset Sale
Proceeds to an offer to repurchase the Notes, at a purchase price in cash equal
to 100% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of repurchase (an "Excess Proceeds Offer"); provided, however,
that the Company may, at the time that it makes any such Excess Proceeds Offer,
also offer to purchase, at a price in cash equal to 100% of the outstanding
principal amount thereof plus accrued and unpaid interest, if any, to the
purchase date, any Indebtedness which ranks pari passu in right of payment to
the Notes (a "Pari Passu Excess Proceeds Offer") and to the extent the Company
so elects to make a Pari Passu Excess Proceeds Offer, Notes and such pari passu
Indebtedness shall be purchased pursuant to such Excess Proceeds Offer and Pari
Passu Excess Proceeds Offer, respectively, on a pro rata basis based on the
aggregate principal amount of such Notes and pari passu Indebtedness then
outstanding. To the extent that the aggregate principal amount of Notes tendered
pursuant to an Excess Proceeds Offer is less than the Available Asset Sale
Proceeds, the Company may use such deficiency for general
51
59
corporate purposes. To the extent that the aggregate principal amount of pari
passu Indebtedness tendered pursuant to a Pari Passu Excess Proceeds Offer is
less than such pari passu Indebtedness' pro rata share of such Available Asset
Sale Proceeds, the Company shall use such remaining Available Asset Sale
Proceeds to purchase any Notes validly tendered and not withdrawn pursuant to
such Excess Proceeds Offer. If the aggregate principal amount of Notes validly
tendered and not withdrawn by holders thereof exceeds the Available Asset Sale
Proceeds or to the extent the Company elects to make a Pari Passu Excess
Proceeds Offer, exceeds the Notes' pro rata share of such Available Asset Sale
Proceeds, then Notes to be purchased will be selected on a pro rata basis. Upon
completion of such Excess Proceeds Offer, the amount of Available Asset Sale
Proceeds shall be reset to zero.
(b) If the Company is required to make an Excess Proceeds Offer, the
Company shall mail, within 30 days following the Reinvestment Date, a notice to
the Holders with a copy to the Trustee which shall include, among other things,
the instructions, determined by the Company, that each such Holder must follow
in order to have such Notes repurchased and the calculations used in determining
the amount of Available Asset Sale Proceeds to be applied to the repurchase of
such Notes. The notice, which shall govern the terms of the Excess Proceeds
Offer, shall also state:
(1) that the Excess Proceeds Offer is being made pursuant to this
Section 4.14 and that the Excess Proceeds Offer shall remain open for a
period of 20 Business Days following its commencement or such longer
period as may be required by law (the "Offer Period");
(2) that such Holders have the right to require the Company to apply
the Available Asset Sale Proceeds to repurchase such Notes at a purchase
price in cash equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of purchase;
(3) the purchase price and the purchase date (the "Purchase Date")
which shall be no earlier than 30 days and not later than 60 days from the
date such notice is mailed;
(4) that any Note not tendered or accepted for payment will continue
to accrue interest;
52
60
(5) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date;
(6) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Company, a depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least three
Business Days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have the Note purchased;
(8) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered;
(9) whether the Company is also making a Pari Passu Excess Proceeds
Offer and to the extent the Company is also making such a Pari Passu
Excess Proceeds Offer the aggregate principal amount of Notes and such
pari passu Indebtedness which may be purchased by the Company on a pro
rata basis based on the aggregate principal amount of Notes and such pari
passu Indebtedness then outstanding (including any calculations with
respect thereto); and
(10) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Available Asset Sale Proceeds or to the extent the
Company elects to make a Pari Passu Excess Proceeds Offer, the Notes' pro
rata share of such Available Asset Sale Proceeds, the Company shall select
the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Notes
or portions thereof
53
61
tendered pursuant to the Excess Proceeds Offer, deposit with the Paying Agent
U.S. legal tender sufficient to pay the purchase price plus accrued interest, if
any, on the Notes to be purchased and deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 4.14. The
Paying Agent shall promptly (but in any case not later than three Business Days
after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Note tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee shall authenticate and mail or make available for delivery such new
Note to such Holder equal in principal amount to any unpurchased portion of the
Note surrendered. Any Note not so accepted shall be promptly mailed or delivered
by the Company to the Holder thereof. The Company will publicly announce the
results of the Excess Proceeds Offer on the Purchase Date.
Section 4.15. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate (including entities in which the Company or any of the Restricted
Subsidiaries owns a minority interest) or holder of 5% or more of the Company's
Common Stock (each of the foregoing, an "Affiliate Transaction") or extend,
renew, waive or otherwise modify the terms of any Affiliate Transaction entered
into prior to the Issue Date unless the terms of such Affiliate Transaction are
fair and reasonable to the Company or such Restricted Subsidiary, as the case
may be, and the terms of such Affiliate Transaction are at least as favorable as
the terms which could be obtained by the Company or such Restricted Subsidiary,
as the case may be, in a comparable transaction made on an arm's-length basis
between unaffiliated parties. In any Affiliate Transaction involving an amount
or having a value in excess of $1 million, the Company must obtain a Board
Resolution approved by a majority of the members of the Board of Directors of
the Company (and a majority of the disinterested members of the Board of
Directors of the Company) certifying that such Affiliate Transaction complies
with this Section 4.15. In any Affiliate Transaction with a value in excess of
$5 million, the Company must obtain a written opinion that such Affiliate
Transaction complies
54
62
with this Section 4.15 from an independent investment banking firm of nationally
recognized standing.
(b) The foregoing provisions will not apply to (i) any Restricted
Payment that is not prohibited by Section 4.12, (ii) any transaction between the
Company and any of its Restricted Subsidiaries or between Restricted
Subsidiaries, or (iii) the payment of reasonable and customary regular fees to
directors of the Company who are not employees of the Company and any employment
and consulting agreements entered into by the Company or any Restricted
Subsidiary with their executives or consultants in the ordinary course of
business.
Section 4.16. Limitations on Liens.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any Property,
assets, income or profits of the Company or any Restricted Subsidiary or any
shares of stock or debt of any Restricted Subsidiary (whether or not any of the
foregoing is now owned or hereafter acquired), unless (i) if such Lien secures
Indebtedness which is pari passu in right of payment with the Notes, then the
Notes are secured on an equal and ratable basis with the obligations so secured
until such time as such obligation is no longer secured by a Lien or (ii) if
such Lien secures Indebtedness which is subordinated in right of payment to the
Notes, any such Lien shall be subordinated to the Lien granted to the Holders of
the Notes in the same collateral as that securing such Lien to the same extent
as such subordinated Indebtedness is subordinated to the Notes.
Section 4.17. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions to the Company or any Restricted Subsidiary on its Capital Stock,
(b) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (c)
make loans or advances to the Company or any Restricted Subsidiary, (d) transfer
any of its properties or assets to the Company or any Restricted Subsidiary, (e)
grant Liens on or security interests on the assets of the Company or the
Restricted Subsidiaries in favor of the
55
63
Holders of the Notes, or (f) guarantee the Notes or any renewals or refinancings
thereof, except for Permitted Dividend Encumbrances.
Section 4.18. Guarantees of Certain Indebtedness.
The Company will not permit any of the Restricted Subsidiaries
(other than the Guarantors) to (a) incur, guarantee or secure through the
granting of Liens the payment of any Indebtedness of the Company or any other
Restricted Subsidiary or (b) pledge any intercompany notes representing
obligations of any of the Restricted Subsidiaries to secure the payment of any
Indebtedness of the Company, in each case unless such Restricted Subsidiary, the
Company and the Trustee execute and deliver a supplemental indenture evidencing
such Restricted Subsidiary's Guarantee of the Notes pursuant to Article 10 of
this Indenture. Thereafter, such Restricted Subsidiary shall be a Guarantor for
all purposes of this Indenture.
Section 4.19. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all Holders of the Notes which so consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
Section 4.20. Line of Business.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly engage to any substantial extent in any
line or lines of business activity other than that which, in the reasonable good
faith judgment of the Board of Directors of the Company, is a Related Business.
Section 4.21. Change of Control.
(a) Upon the occurrence of a Change of Control (the date of such
occurrence, the "Change of Control Date"), the Company will notify the Holders
of the Notes in writing of such occurrence and shall make an offer to purchase
(a "Change of Control Offer"), and shall purchase, on a Business Day (a "Change
of Control Purchase Date") not more than 60 nor less than 30 days following the
Change of
56
64
Control Date all of the then outstanding Notes at a purchase price equal to 101%
of the principal amount thereof plus accrued interest, if any, to the Change of
Control Purchase Date (the "Change of Control Purchase Price").
(b) Notice of a Change of Control Offer shall be sent, by
first-class mail, postage prepaid, by the Company not later than the 30th day
after the Change of Control Date to the Holders of the Notes at their last
registered addresses with a copy to the Trustee and the Paying Agent. The Change
of Control Offer shall remain open from the time of mailing for at least 20
Business Days and until 5:00 p.m., New York City time, on the Change of Control
Purchase Date. The notice, which shall govern the terms of the Change of Control
Offer, shall include such disclosures as are required by law and shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.21 and that all Notes validly tendered into the Change of
Control Offer and not withdrawn will be accepted for payment;
(ii) the purchase price (including the amount of accrued interest,
if any) for each Note, the Change of Control Purchase Date and the date on
which the Change of Control Offer expires;
(iii) that any Note not tendered for payment will continue to accrue
interest in accordance with the terms thereof;
(iv) that, unless the Company shall default in the payment of the
purchase price, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Purchase Date;
(v) that Holders electing to have Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Change of Control Purchase Date and must
complete any form of letter of transmittal proposed by the Company and
reasonably acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a tested telex,
facsimile transmission or letter setting forth the name
57
65
of the Holder, the principal amount of Notes the Holder delivered for
purchase, the Note certificate number (if any) and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be
issued Notes equal in principal amount to the unpurchased portion of the
Notes surrendered;
(viii) the instructions that Holders must follow in order to tender
their Notes; and
(ix) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the SEC
pursuant to the Exchange Act (or, if the Company is not then permitted to
file any such reports with the SEC, the comparable reports prepared
pursuant to Section 4.02), a description of material developments in the
Company's business, information with respect to pro forma historical
financial information after giving effect to such Change of Control and
such other information concerning the circumstances and relevant facts
regarding such Change of Control Offer as would be material to a Holder of
Notes in connection with the decision of such Holder as to whether or not
it should tender Notes pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment Notes or portions thereof validly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so
accepted together with an Officers' Certificate setting forth the Notes or
portions thereof tendered to and accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered; provided that each
such new Note shall be issued in an original principal amount in denominations
of $1,000 and integral multiples thereof. Any Notes not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Change of Control Offer not later than
the first Business Day following the Change of Control Purchase Date.
58
66
(c) (i) If the Company or any Restricted Subsidiary has issued any
outstanding Indebtedness that is subordinated in right of payment to the Notes
or the Guarantee of such Restricted Subsidiary, as the case may be, or the
Company or any Restricted Subsidiary has issued any Preferred Stock, and the
Company or such Restricted Subsidiary is required to make a change of control
offer or to repurchase or make a distribution with respect to such subordinated
Indebtedness or Preferred Stock in the event of a change of control, the Company
or such Restricted Subsidiary shall not consummate any such change of control
offer, repurchase or distribution with respect to such subordinated Indebtedness
or Preferred Stock until such time as the Company shall have paid the Change of
Control Purchase Price in full to Holders of Notes that have accepted the
Company's Change of Control Offer and shall otherwise have consummated the
Change of Control Offer made to Holders of the Notes and (ii) the Company or any
Restricted Subsidiary will not issue Indebtedness that is subordinated in right
of payment to the Notes or the Guarantee of such Restricted Subsidiary and the
Company and its Restricted Subsidiaries will not issue Preferred Stock with
change of control provisions requiring the payment of such Indebtedness or
Preferred Stock prior to the payment of the Notes in the event of a Change of
Control under this Indenture.
In the event that a Change of Control occurs and the holders of
Notes exercise their right to require the Company to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Company will comply with the requirements of Rule
14e-1 as then in effect with respect to such repurchase.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
(a) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person or Persons, and
the Company will not permit any of its Restricted Subsidiaries to enter into any
such transaction or series of transactions if such transaction or
59
67
series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless at the
time of and after giving effect thereto (i) either (A) if the transaction or
series of transactions is a merger or consolidation, the Company shall be the
surviving Person of such merger or consolidation, or (B) the Person formed by
such consolidation or into which the Company or such Restricted Subsidiary is
merged or to which the properties and assets of the Company or such Restricted
Subsidiary, as the case may be, are transferred (any such surviving person or
transferee Person being the "Surviving Entity") shall be a corporation organized
and existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume by a supplemental
indenture executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Notes and this
Indenture, and in each case, this Indenture shall remain in full force and
effect; and (ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be continuing and the
Company or the Surviving Entity, as the case may be, after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions),
could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.10 hereof (assuming a market rate of interest with respect
to such additional Indebtedness).
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.01, the Company shall deliver, or cause to
be delivered, to the Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.01 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
60
68
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Restricted Subsidiary in
accordance with Section 5.01 above, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer 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 corporation had been named as the Company herein, and thereafter
(except with respect to any such transfer which is a lease) the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by the provisions of Article 11 hereof;
(2) there is a default in the payment of any interest on any Note
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 11 hereof;
(3) the Company or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for 45
days after written notice from the Trustee or the Holders of not less than
25% in the aggregate principal amount of the Notes then outstanding;
(4) there is a default or are defaults under one or more agreements,
instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which the Company or any Restricted Subsidiary of the
Company then has outstanding Indebtedness in excess of $10 million,
individually or in the aggregate, and either (a) such Indebtedness is
already due and payable
61
69
in full or (b) such default or defaults have resulted in the acceleration
of the maturity of such Indebtedness;
(5) a court of competent jurisdiction enters a final judgment or
judgments which can no longer be appealed for the payment of money in
excess of $10 million (not covered by insurance) against the Company or
any Restricted Subsidiary and such judgment remains undischarged for a
period of 60 consecutive days during which a stay of enforcement of such
judgment shall not be in effect;
(6) the Company or any Restricted Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for all or substantially all of the property of the
Company or any Restricted Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of
62
70
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Notes of any
Default (except in payment of principal or premium, if any, or interest on the
Notes) in accordance with Section 7.05.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising under
Section 6.01(6) or (7)) occurs and is continuing, the Trustee by written notice
to the Company, or the Holders of not less than 25% in aggregate principal
amount of the Notes then outstanding may by written notice to the Company and
the Trustee declare that the entire principal amount of all the Notes then
outstanding plus accrued and unpaid interest to the date of acceleration are
immediately due and payable, in which case either (i) such amounts shall become
immediately due and payable; or (ii) if there are any amounts outstanding under
or in respect of the Senior Credit Facility, such amounts shall become due and
payable upon the first to occur of an acceleration under or in respect of the
Senior Credit Facility or five Business Days after receipt by the Company and
the agent for the lenders under the Senior Credit Facility of notice of the
acceleration of the Notes; provided, however, that after such acceleration but
before a judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Notes may rescind and annul such acceleration and its consequences
if (i) all existing Events of Default, other than the nonpayment of accelerated
principal, premium, if any, or interest that has become due solely because of
the acceleration, have been cured or waived, (ii) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid and (iii) if the rescission would not conflict with
any judgment or decree. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. In case an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company occurs, such principal,
premium, if any, and interest amount with respect to all of the Notes shall be
due and payable immediately without any declaration or other act on the part of
the Trustee or the Holders of the Notes.
63
71
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding 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 by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another Noteholder
or that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
64
72
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture (but in any
event subject to the provisions of Articles 10 and 11), the right of any Holder
of a Note to receive payment of principal of, or premium, if any, and interest
of the Note on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company or the Guarantors (or any other obligor on the Notes) for the whole
amount of unpaid principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate then borne by the Notes, and such further amounts as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
65
73
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company or the
Guarantors (or any other obligor upon the Notes), any of their respective
creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, 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 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes; and
66
74
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment
to Noteholders 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 in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the same circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture but,
in the case of any
67
75
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 and 6.05 hereof.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity satisfactory to
it against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, paragraphs (a),
(b), (c) and (d) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper person.
68
76
The Trustee need not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed by it with due
care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(7) The Trustee shall not be deemed to have knowledge of any fact or
matter unless such fact or matter is known to a Responsible Officer of the
Trustee.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may make loans to, accept deposits
from, perform services for or otherwise deal with the Company or any Guarantor,
or any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like
69
77
rights. The Trustee, however, shall be subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Notes, it shall not be accountable for the Company's
use of the proceeds from the sale of Notes or any money paid to the Company
pursuant to the terms of this Indenture and it shall not be responsible for any
statement in the Notes other than its certificate of authentication.
Section 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Noteholder notice of
the Default or the Event of Default, as the case may be, within 30 days after it
occurs. Except in the case of a Default or an Event of Default in payment of the
principal of, or premium, if any, or interest on any Note the Trustee may
withhold the notice if and so long as the Board of Directors of the Trustee, the
executive committee or any trust committee of such board and/or its Responsible
Officers in good faith determine(s) that withholding the notice is in the
interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
If required by the TIA, within 60 days after May 15 of each year,
commencing the May 15 following the date of this Indenture, the Trustee shall
mail to each Noteholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b)
and 313(c).
A copy of each report at the time of its mailing to Noteholders
shall be filed with the SEC, the New York Stock Exchange and each other stock
exchange, if any, on which the Notes are listed. The Company shall promptly
notify the Trustee when the Notes are listed on any other stock exchange and the
Trustee shall comply with TIA Section 313(d).
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any provision of law on compensation of a trustee of an express trust.
70
78
The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity.
However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations. Notwithstanding the foregoing, the
Company and the Guarantors need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by the Trustee through its
negligence or bad faith. To secure the payment obligations of the Company and
the Guarantors in this Section 7.07, the Trustee shall have a lien prior to the
Notes on all money or property held or collected by the Trustee except such
money or property held in trust to pay principal of and interest on particular
Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by notifying the removed Trustee in writing and may
appoint a successor Trustee with the Company's written consent which consent
71
79
shall not be unreasonably withheld. The Company may remove the Trustee at its
election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly notify each Holder
of such event and shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and 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 following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
72
80
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every respect. The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the provision in Section
310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1) that it will hold all sums held by it as agent for the payment
of principal of, or premium, if any, or interest on, the Notes (whether
such sums have been paid to it by the Company or by any obligor on the
Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(2) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(3) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
73
81
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to certificated
Notes;
(3) to add new Subsidiary Guarantors pursuant to Section 10.04;
(4) to comply with any requirements of the SEC under the TIA; or
(5) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not adversely affect the rights of any Noteholder.
The Trustee is hereby authorized to join with the Company and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Company, the Guarantors, when authorized by a Board Resolution
of each of them, and the Trustee may amend or supplement this Indenture or the
Notes with the written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes without notice to any
Noteholder. The Holders of not less than a majority in aggregate principal
amount of the outstanding Notes may waive compliance in a particular instance by
the Company with any provision of this Indenture or the Notes without notice to
any Noteholder. Subject to Section 8.04, without the consent of each Noteholder
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
74
82
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of interest on
any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note;
(4) make any Note payable in money other than that stated in the
Note;
(5) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes, or change
the time before which no such redemption may be made;
(6) waive a default in the payment of the principal of, interest on,
or redemption payment with respect to, any Note;
(7) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
(8) amend, alter, change or modify the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change of
Control or make and consummate an Excess Proceeds Offer after such
obligation has arisen or waive any Default in the performance of any such
offers or modify any of the provisions or definitions with respect to any
such offers; or
(9) take any other action otherwise prohibited by this Indenture to
be taken without the consent of each holder affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Noteholders as aforesaid and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
75
83
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
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 which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such 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, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (10) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note; provided that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Note, on or after the respective due
dates
76
84
expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee may request the Holder of the Note to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment supplement or waiver.
Section 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company or any Guarantor may not sign an amendment or
supplement until the Board of Directors of the Company or such Guarantor, as
appropriate, approves it.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations under
the Notes, the Guarantees and this Indenture, except the obligations referred to
in the last paragraph of this Section 9.01, if there shall have been canceled by
the Trustee or delivered to the Trustee for cancellation all Notes theretofore
authenticated and delivered (other than any Notes that are asserted to have been
destroyed, lost or stolen and that shall have been replaced as provided in
Section 2.07 hereof) and the Company
77
85
has paid all sums payable by it hereunder or deposited all required sums with
the Trustee.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's and the Guarantors' obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall
survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be discharged
from its obligations with respect to the Notes and the Guarantors discharged
from their obligations under the Guarantees on the date the conditions set forth
in Section 9.04 below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Notes and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned (and the Trustee, at the expense of the Company,
shall, subject to Section 9.06 hereof, execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of outstanding
Notes to receive solely from the trust funds described in Section 9.04 hereof
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Notes when such payments are
due, (B) the Company's obligations with respect to such Notes under Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 4.09 hereof, (C) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder (including claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof) and (D) this
Article 9. Subject to compliance with this Article 9, the Company may exercise
its option under this Section 9.02 with respect to the Notes notwithstanding the
prior exercise of its option under Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the
Company and the Guarantors shall be released from their respective obligations
under Sections 4.02 through 4.08 and Sections 4.10 through 4.21 hereof,
78
86
inclusive, and Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 9.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that the Company and the Guarantors may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section or portion thereof, whether directly or indirectly by
reason of any reference elsewhere herein to any such specified Section or
portion thereof or by reason of any reference in any such specified Section or
portion thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Notes shall be unaffected thereby.
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment,
money in an amount, or (C) 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, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the maturity date of
such principal, premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest selected in
accordance with the terms of this Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit, or shall have
occurred and be
79
87
continuing at any time during the period ending on the 91st day after the
date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period under any Bankruptcy Law
applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute default under any other agreement
or instrument to which the Company is a party or by which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended;
(6) in the case of an election under Section 9.02 above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there has
been a change in any applicable Federal income tax law with the effect
that, and such opinion shall confirm that, the Holders of the outstanding
Notes or persons in their positions will not recognize income, gain or
loss for Federal income tax purposes solely as a result of such Legal
Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner, including as a result of prepayment, and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
80
88
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof
(as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee all amounts
then due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Notes, of all sums due and to become due thereon in respect of
principal, premium, if any, and accrued interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee,
81
89
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02, 9.03 or 9.04
hereof 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 and each Guarantor's obligations
under this Indenture, the Notes and the Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 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 9.01, 9.02, 9.03 or 9.04
hereof; provided, however, that if the Company or the Guarantors have made any
payment of principal of, premium, if any, or accrued interest on any Notes
because of the reinstatement of their obligations, the Company or the
Guarantors, as the case may be, shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Company (or,
if such moneys had been deposited by the Guarantors, to such Guarantors), and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then
held by the Company or the Guarantors in trust for the payment of the principal
of, or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then
held by the Company or the Guarantors in trust, such
82
90
moneys shall be released from such trust; and the Holder of such Note entitled
to receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company and the Guarantors for the payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Trustee or any such Paying
Agent, before being required to make any such repayment, may, at the expense of
the Company and the Guarantors, either mail to each Noteholder affected, at the
address shown in the register of the Notes maintained by the Registrar pursuant
to Section 2.03 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in the City of New York, New York,
a notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or the Guarantors or the release of
any money held in trust by the Company or any Guarantors, as the case may be,
Noteholders entitled to the money must look only to the Company and the
Guarantors for payment as general creditors unless applicable abandoned property
law designates another person.
ARTICLE 10.
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder and to the
Trustee, on behalf of the Holders, (i) the due and punctual payment of the
principal of, and premium, if any, and interest on each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal of,
and premium, if any, and interest on the Notes, to the extent lawful, and the
due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor
hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective
83
91
of, and shall be unaffected by, any invalidity, irregularity or unenforceability
of any such Note or this Indenture, any failure to enforce the provisions of any
such Note or this Indenture, any waiver, modification or indulgence granted to
the Company with respect thereto by the Holder of such Note or the Trustee, or
any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor.
Each Guarantor hereby waives diligence, presentment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to any
such Note except by payment in full of the principal thereof, premium if any,
and interest thereon and as provided in Section 9.01 hereof. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of this Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 6 hereof,
the Trustee shall promptly make a demand for payment on the Notes under the
Guarantee provided for in this Article 10 and not discharged.
The Guarantee set forth in this Section 10.01 shall not be valid or
become obligatory for any purpose with respect to a Note until the certificate
of authentication on such Note shall have been signed by or on behalf of the
Trustee.
Section 10.02. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each
Guarantor hereby agrees that a notation of such Guarantee shall be placed on
each Note authenticated and made available for delivery by the Trustee and that
this Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
84
92
Each Guarantor hereby agrees that the Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office at the time the Trustee authenticates the Note on which
the Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of each Guarantor.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of
such Guarantor (including, without limitation, any guarantees of Senior
Indebtedness) and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Guarantee or pursuant to its contribution obligations
under this Indenture, result in the obligations of such Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. In making any calculation relevant to determining such
maximum amount, all Senior Indebtedness shall be deemed to have been incurred
prior to the Issue Date.
Section 10.04. Additional Guarantors.
The Company covenants and agrees that it will cause any Restricted
Subsidiary which becomes obligated to guarantee the Notes, pursuant to the terms
of Section 4.18 hereof, to execute a supplemental indenture satisfactory in form
and substance to the Trustee pursuant to which such Restricted Subsidiary shall
guarantee the obligations of the Company under the Notes and this Indenture in
accordance with this Article 10 with the same effect and to the same extent as
if such Person had been named herein as a Guarantor. Upon the execution of such
a Supplemental Indenture, the Guarantee of such Restricted Subsidiary shall be
deemed to be notated on each outstanding Note. Notes delivered by the Trustee
after the execution and delivery of such Supplemental Indenture shall include
the notation of the Guarantee of such Restricted Subsidiary but the failure to
include such a notation shall not otherwise effect the validity or
enforceability of such Guarantee.
85
93
Section 10.05. Release of Guarantor.
Upon (i) the release of all guarantees by a Guarantor of any Indebtedness
of the Company and the release of all Liens on the property and assets of such
Guarantor securing such guarantees or Indebtedness or (ii) the sale or
disposition (whether by merger, sale of stock or otherwise) of a Guarantor (or
substantially all of its assets) to an entity which is not a Subsidiary of the
Company which is otherwise in compliance with this Indenture (and providing that
the guarantees and Liens referred to in the foregoing clause (i) are also
released at such time), and in each such case, the delivery to the Trustee of an
Officers' Certificate and an Opinion of Counsel, each stating that all such
conditions in the foregoing clause (i) or (ii), as the case may be, have been
complied with, such Guarantor shall be deemed released from all of its
obligations under this Indenture and its Guarantor.
Section 10.06. Guarantee Obligations Subordinate to Senior Indebtedness.
Each Guarantor and each Holder, by its acceptance of the Notes,
agree that the payment of the principal of and interest on the Notes pursuant to
the Guarantees and any other payment in respect of the Notes by each Guarantor
is subordinated, to the extent and in the manner provided in this Article 10, to
the prior payment in full in cash of all Senior Indebtedness of such Guarantor
and that these subordination provisions are for the benefit of the holders of
Senior Indebtedness of the Guarantors.
This Article 10 shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness of a Guarantor, and such provisions are made for the benefit
of the holders of Senior Indebtedness of the Guarantors, and such holders are
made obligees hereunder and any one or more of them may enforce such provisions.
Section 10.07. No Payment on Guarantees in Certain Circumstances.
(a) No payment (by set-off or otherwise) shall be made by or on
behalf of a Guarantor on account of its Obligations on its Guarantee (other than
Junior Securities), (i) upon the maturity of any Senior Indebtedness of such
Guarantor by lapse of time, acceleration (unless waived) or otherwise, unless
and until all principal of, premium, if any, and interest on such Senior
Indebtedness of such Guarantor are first paid in full in cash or (ii) in the
86
94
event of default in the payment of any principal of, premium, if any, or
interest on Senior Indebtedness of such Guarantor when it becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration
or otherwise (a "Guarantor Payment Default"), unless and until such Guarantor
Payment Default has been cured or waived or otherwise has ceased to exist.
(b) Upon (i) the happening of an event of default (other than a
Guarantor Payment Default) that permits the holders of Designated Senior
Indebtedness of a Guarantor to declare such Designated Senior Indebtedness of
such Guarantor to be due and payable and (ii) written notice of such event of
default given to such Guarantor, the Company and the Trustee by the
representative of the holders of such Designated Senior Indebtedness of such
Guarantor (a "Guarantor Payment Notice"), then, unless and until such event of
default has been cured or waived or otherwise has ceased to exist, no payment
(by set-off or otherwise) may be made by or on behalf of such Guarantor on
account of its Obligations under its Guarantee, other than payments made with
Junior Securities. Notwithstanding the foregoing, unless the Designated Senior
Indebtedness of such Guarantor in respect of which such event of default exists
has been declared due and payable in its entirety within 179 days after the
Guarantor Payment Notice is delivered as set forth above (the "Guarantor Payment
Blockage Period") (and such declaration has not been rescinded or waived), at
the end of the Guarantor Payment Blockage Period, such Guarantor shall, unless a
Guarantor Payment Default with respect to such Designated Senior Indebtedness of
such Guarantor exists, resume making any and all required payments in respect of
its Obligations under its Guarantee. Any number of Guarantor Payment Notices may
be given; provided, however, that (i) not more than one Guarantor Payment Notice
shall be given within a period of any 360 consecutive days, and (ii) no default
that existed upon the date of such Guarantor Payment Notice if the
representative of the holders of Designated Senior Indebtedness of such
Guarantor that gave such Guarantor Payment Notice knew of such default on such
date (whether or not such event of default is on the same issue of Designated
Senior Indebtedness of such Guarantor) shall be made the basis for the
commencement of any other Guarantor Payment Blockage Period unless such default
has been cured or waived for a period of at least 90 consecutive days.
(c) In furtherance of the provisions of Section 10.01, in the event
that, notwithstanding the foregoing provisions of this Section 10.07, any
payment on account of a Guarantor's Obligations on its Guarantee (other than
87
95
Junior Securities) shall be received by the Trustee at a time when such payment
is prohibited by the provisions of this Section 10.07, such payment shall be
held in trust for the benefit of the holders of Senior Indebtedness of such
Guarantor, and shall be paid or delivered by the Trustee, to the holders of
Senior Indebtedness of such Guarantor remaining unpaid or to their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness of such Guarantor may have been issued, ratably according to the
aggregate principal amounts remaining unpaid on account of such Senior
Indebtedness of such Guarantor held or represented by each, for application to
the payment of all such Senior Indebtedness of such Guarantor remaining unpaid,
to the extent necessary to pay or provide for the payment of all such Senior
Indebtedness of such Guarantor in full in cash after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
such Guarantor.
Section 10.08. Guarantee Obligations Subordinated to Prior Payment of All Senior
Indebtedness of Guarantors on Dissolution, Liquidation or
Reorganization.
Upon any distribution of assets of a Guarantor upon any dissolution,
winding up, total or partial liquidation or reorganization of such Guarantor,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or a
similar proceeding or upon assignment for the benefit of creditors or any
marshalling of assets or liabilities:
(a) the holders of all Senior Indebtedness of such Guarantor will
first be entitled to receive payment in full in cash before the Holders are
entitled to receive any payment on account of such Guarantor's Obligations on
its Guarantee (other than Junior Securities);
(b) any payment or distribution of assets of such Guarantor of any
kind or character from any source, whether in cash, property or securities
(other than Junior Securities) to which the Holders or the Trustee on behalf of
the Holders would be entitled (by set-off or otherwise), except for the
provisions of this Article 10, shall be paid by the liquidating trustee or agent
or other person making such a payment or distribution directly to the holders of
such Senior Indebtedness of such Guarantor or their representative to the extent
necessary to make payment in full (or have such payment duly provided for) on
all such Senior Indebtedness of such Guarantor remaining unpaid,
88
96
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness of such Guarantor; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of such Guarantor (other than Junior Securities) shall be
received by the Trustee at a time when such payment or distribution is
prohibited by the foregoing provisions, such payment or distribution shall be
held in trust for the benefit of the holders of such Senior Indebtedness of such
Guarantor, and shall be paid or delivered by the Trustee to the holders of such
Senior Indebtedness of such Guarantor remaining unpaid, to their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any of such Senior Indebtedness of such
Guarantor may have been issued, ratably according to the aggregate principal
amounts remaining unpaid on account of such Senior Indebtedness of such
Guarantor held or represented by each, for application to the payment of all
such Senior Indebtedness of such Guarantor remaining unpaid, to the extent
necessary to pay all such Senior Indebtedness of such Guarantor in full in cash
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness of such Guarantor.
Section 10.09. Holders to be Subrogated to Rights of Holders of Senior
Indebtedness of Guarantors.
Subject to the payment in full in cash of all Senior Indebtedness of
each Guarantor as provided herein, the Holders of Notes shall be subrogated to
the rights of the holders of such Senior Indebtedness of such Guarantor to
receive payments or distributions of assets of such Guarantor applicable to the
Senior Indebtedness of such Guarantor until all amounts owing on the Notes shall
be paid in full, and for the purpose of such subrogation no such payments or
distributions to the holders of such Senior Indebtedness of such Guarantor by or
on behalf of such Guarantor, or by or on behalf of the Holders by virtue of this
Article 10, which otherwise would have been made to the Holders shall, as
between such Guarantor and the Holders, be deemed to be payment by such
Guarantor or on account of such Senior Indebtedness of such Guarantor, it being
understood that the provisions of this Article 10 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of such Senior Indebtedness of such Guarantor, on the other
hand.
89
97
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of
amounts payable under Senior Indebtedness of a Guarantor, then the Holders shall
be entitled to receive from the holders of such Senior Indebtedness of such
Guarantor any payments or distributions received by such holders of Senior
Indebtedness of such Guarantor in excess of the amount sufficient to pay all
amounts payable under or in respect of such Senior Indebtedness of such
Guarantor in full in cash.
Section 10.10. Application of Certain Article 11 Provisions.
The provisions of Sections 11.05, 11.06, 11.07, 11.08. 11.09, 11.10,
11.11, and 11.12 hereof shall apply, mutatis mutandis, to each Guarantor and
their respective holders of Senior Indebtedness and the rights, duties and
obligations set forth therein shall govern the rights, duties and obligations of
each Guarantor, the holders of Senior Indebtedness of such Guarantor, the
Holders and the Trustee with respect to the Guarantee of such Guarantor and all
references therein to Article 11 hereof shall mean this Article 10.
Section 10.11. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Guarantor's Obligations with
respect to its Guarantee.
ARTICLE 11.
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness.
The Company and each Holder, by its acceptance of the Notes, agree
that (a) the payment of the principal of and interest on the Notes and (b) any
other payment in
90
98
respect of the Notes, including on account of the acquisition or redemption of
the Notes by the Company (including, without limitation, pursuant to Section
4.14 or 4.21) is subordinated, to the extent and in the manner provided in this
Article 11, to the prior payment in full in cash of all Senior Indebtedness of
the Company and that these subordination provisions are for the benefit of the
holders of Senior Indebtedness.
This Article 11 shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
Section 11.02. No Payment on Notes in Certain Circumstances.
(a) No payment (by set-off or otherwise) shall be made by or on
behalf of the Company on account of the principal of, premium, if any, or
interest on the Notes (including any repurchases of Notes), or on account of the
redemption provisions of the Notes, for cash or property (other than Junior
Securities), (i) upon the maturity of any Senior Indebtedness of the Company by
lapse of time, acceleration (unless waived) or otherwise, unless and until all
principal of, premium, if any, and interest on such Senior Indebtedness are
first paid in full in cash or (ii) in the event of default in the payment of any
principal of, premium, if any, or interest on Senior Indebtedness of the Company
when it becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise (a "Payment Default"), unless and
until such Payment Default has been cured or waived or otherwise has ceased to
exist.
(b) Upon (i) the happening of an event of default (other than a
Payment Default) that permits the holders of Designated Senior Indebtedness to
declare such Designated Senior Indebtedness to be due and payable and (ii)
written notice of such event of default given to the Company and the Trustee by
the representative of the holders of such Designated Senior Indebtedness (a
"Payment Notice"), then, unless and until such event of default has been cured
or waived or otherwise has ceased to exist, no payment (by set-off or otherwise)
may be made by or on behalf of the Company on account of the principal of,
premium, if any, or interest on the Notes, or on account of the redemption
provisions of the Notes, other than payments made with Junior Securities.
91
99
Notwithstanding the foregoing, unless the Designated Senior Indebtedness in
respect of which such event of default exists has been declared due and payable
in its entirety within 179 days after the Payment Notice is delivered as set
forth above (the "Payment Blockage Period") (and such declaration has not been
rescinded or waived), at the end of the Payment Blockage Period, the Company
shall, unless a Payment Default exists, be required to pay all sums not paid to
the Holders of the Notes during the Payment Blockage Period due to the foregoing
prohibitions and to resume all other payments as and when due on the Notes. Any
number of Payment Notices may be given; provided, however, that (i) not more
than one Payment Notice shall be given within a period of any 360 consecutive
days, and (ii) no default that existed upon the date of such Payment Notice if
the representative of the holders of Designated Senior Indebtedness that gave
such Payment Notice knew of such default on such date (whether or not such event
of default is on the same issue of Designated Senior Indebtedness) shall be made
the basis for the commencement of any other Payment Blockage Period unless such
default has been cured or waived for a period of at least 90 consecutive days.
(c) In furtherance of the provisions of Section 11.01, in the event
that, notwithstanding the foregoing provisions of this Section 11.02, any
payment or distribution of assets of the Company (other than Junior Securities)
shall be received by the Trustee at a time when such payment or distribution is
prohibited by the provisions of this Section 11.02, such payment or distribution
shall be held in trust for the benefit of the holders of such Senior
Indebtedness, and shall be paid or delivered by the Trustee, to the holders of
such Senior Indebtedness remaining unpaid or to their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate principal amounts remaining unpaid on
account of such Senior Indebtedness held or represented by each, for application
to the payment of all such Senior Indebtedness remaining unpaid, to the extent
necessary to pay or provide for the payment of all such Senior Indebtedness in
full in cash after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
Section 11.03. Notes Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial
92
100
liquidation or reorganization of the Company, whether voluntary or involuntary,
in bankruptcy, insolvency, receivership or a similar proceeding or upon
assignment for the benefit of creditors or any marshalling of assets or
liabilities:
(a) the holders of all Senior Indebtedness of the Company will first
be entitled to receive payment in full in cash before the Holders are entitled
to receive any payment on account of the principal of, premium, if any, and
interest on the Notes (other than Junior Securities);
(b) any payment or distribution of assets of the Company of any kind
or character from any source, whether in cash, property or securities (other
than Junior Securities) to which the Holders or the Trustee on behalf of the
Holders would be entitled (by set-off or otherwise), except for the provisions
of this Article 11, shall be paid by the liquidating trustee or agent or other
person making such a payment or distribution directly to the holders of such
Senior Indebtedness or their representative to the extent necessary to make
payment in full (or have such payment duly provided for) on all such Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company (other than Junior Securities) shall be
received by the Trustee at a time when such payment or distribution is
prohibited by the foregoing provisions, such payment or distribution shall be
held in trust for the benefit of the holders of such Senior Indebtedness, and
shall be paid or delivered by the Trustee to the holders of such Senior
Indebtedness remaining unpaid, to their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate principal amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, for application to the payment
of all such Senior Indebtedness remaining unpaid, to the extent necessary to pay
all such Senior Indebtedness in full in cash after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
Section 11.04. Holders to be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full in cash of all Senior Indebtedness of
the Company as provided herein, the
93
101
Holders of Notes shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the Notes shall
be paid in full, and for the purpose of such subrogation no such payments or
distributions to the holders of such Senior Indebtedness by or on behalf of the
Company, or by or on behalf of the Holders by virtue of this Article 11, which
otherwise would have been made to the Holders shall, as between the Company and
the Holders, be deemed to be payment by the Company or on account of such Senior
Indebtedness, it being understood that the provisions of this Article 11 are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of such Senior Indebtedness, on the
other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 11 shall have been
applied, pursuant to the provisions of this Article 11, to the payment of
amounts payable under Senior Indebtedness of the Company, then 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 sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full in cash.
Section 11.05. Obligations of the Company Unconditional.
Nothing contained in this Article 11 or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as between the Company and the
Holders, the obligation of each such Person, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, and
interest on the Notes 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 Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article 11, of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article 11 or elsewhere in this
Indenture or in the Notes, upon any distribution of assets of the Company
94
102
referred to in this Article 11, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other Person making any
distribution 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 11 so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article 11. Nothing in this Section 11.05
shall apply to the claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
Section 11.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Responsible Officer of the Trustee or any Paying
Agent shall have received, no later than the close of business on the Business
Day prior to such payment, written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any representative therefor and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Sections 7.01 and 7.02, shall be entitled in all respects
conclusively to assume that no such fact exists.
Section 11.07. Application by Trustee of Assets Deposited With it.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article 9 shall be for the sole benefit of Holders of Notes and
shall not be subject to the subordination provisions of this Article 11.
Otherwise, any deposit of assets with the Trustee or the Paying Agent (whether
or not in trust) for the payment of principal of or interest on any Notes shall
be subject to the provisions of Sections 11.01, 11.02, 11.03 and 11.04; provided
that, if prior to one Business Day preceding the date on which by the terms of
this Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either principal of or interest on
any Note) the Trustee or such Paying Agent shall not have
95
103
received with respect to such assets the written notice provided for in Section
11.06, then the Trustee or such Paying Agent shall have full power and authority
to receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
Section 11.08. Subordination Rights Not Impaired by Acts of 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 provisions contained in this Article 11 shall 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 which any such holder may have or be
otherwise charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with the
Company, all without affecting the liabilities and obligations of the parties to
this Indenture or the Holders.
Section 11.09. Holders Authorize Trustee to Effectuate Subordination of Notes.
Each Holder of the Notes by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article 11 and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company), the immediate filing of a
claim for the unpaid balance of his Notes in the form required in said
proceedings and causing said claim to be approved. If the Trustee does not file
a proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their representative are or is hereby
authorized to have the right to file and are or is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said
96
104
Notes. Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness or their representative to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior
Indebtedness or their representative to vote in respect of the claim of any
Holder in any such proceeding.
Section 11.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article 11 in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 11.11. Article 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 Notes by reason of any provision of this Article 11
shall not be construed as preventing the occurrence of a Default or an Event of
Default under Section 6.01 or in any way limit the rights of the Trustee or any
Holder to pursue any other rights or remedies with respect to the Notes.
Section 11.12. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Notes or the Company or any
other Person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 11 or otherwise.
Nothing in this Section 11.12 shall affect the obligation of any other such
Person to hold such payment for the benefit of, and to pay such payment over to,
the holders of Senior Indebtedness or their representative. In the event of any
conflict between the fiduciary duty of the Trustee to the Holders of Notes and
to the holders of Senior Indebtedness, the Trustee is expressly authorized to
resolve such conflict in favor of the Holders.
97
105
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 12.02. Notices.
Any notice or communication shall be given in writing and delivered
in person, sent by facsimile, delivered by commercial courier service or mailed
by first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
If to the Trustee:
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Department
The Company, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company, the Trustee, or the
Guarantors shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by registered or certified mail, postage prepaid (except that a notice of change
of address
98
106
shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Noteholder shall be mailed
to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication to a Noteholder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
99
107
Section 12.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 12.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, any Guarantor or any other obligor on the Notes or
by any Affiliate of any of them shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the Trustee actually knows
are so owned shall be so disregarded. Notes so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, a Guarantor or any other obligor
upon the Notes or any Affiliate of any of them.
Section 12.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at meetings
of Noteholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
100
108
Section 12.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the Commonwealth of Massachusetts.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 12.09. Governing Law.
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES 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, THE NOTES OR THE
GUARANTEES.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 12.11. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company or any Guarantor shall not have any liability for any obligations
of the Company or any Guarantor under the Notes, the Guarantees or the Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creations. Each Noteholder by accepting a Note waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
Section 12.12. Successors.
All agreements of the Company and the Guarantors in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee, any additional
101
109
trustee and any Paying Agents in this Indenture shall bind its successor.
Section 12.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 12.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet 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 or provisions hereof.
Section 12.15. Separability.
Each provision of this Indenture shall be considered separable and
if for any reason any provision which is not essential to the effectuation of
the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
102
110
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed, and the Company's corporate seal to be hereunto affixed and
attested, all as of the date and year first written above.
XXXXX ADVERTISING COMPANY
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial
Officer, Treasurer
and Director
ATTEST:
/s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President and Chief
Executive Officer
Guarantors:
THE LAMAR CORPORATION
INTERSTATE LOGOS, INC.
XXXXX ADVERTISING OF COLORADO
SPRINGS, INC.
XXXXX ADVERTISING OF XXXXXXX,
INC.
XXXXX ADVERTISING OF MOBILE, INC.
XXXXX ADVERTISING OF SOUTH
GEORGIA, INC.
XXXXX ADVERTISING OF SOUTH
MISSISSIPPI, INC.
XXXXX ADVERTISING OF YOUNGSTOWN,
INC.
TLC PROPERTIES, INC.
MISSOURI LOGOS, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
UTAH LOGOS, INC.
OHIO LOGOS, INC.
GEORGIA LOGOS, INC.
KANSAS LOGOS, INC.
LAMAR PENSACOLA TRANSIT, INC.
LAMAR TENNESSEE LIMITED
PARTNER, INC.
000
XXXXX XXXXX GENERAL PARTNER,
INC.
MICHIGAN LOGOS, INC.
MINNESOTA LOGOS, INC.
MISSISSIPPI LOGOS, INC.
NEW JERSEY LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
TENNESSEE LOGOS, INC.
TEXAS LOGOS, INC.
TLC PROPERTIES II, INC.
VIRGINIA LOGOS, INC.
XXXXX ADVERTISING OF
HUNTINGTON-BRIDGEPORT, INC.
XXXXX ADVERTISING OF PENN,
INC.
XXXXX ADVERTISING OF MICHIGAN,
INC.
XXXXX ADVERTISING OF MISSOURI,
INC.
CANADIAN TODS LIMITED
NEVADA LOGOS, INC.
KENTUCKY LOGOS, INC.
FLORIDA LOGOS, INC.
LAMAR ELECTRICAL, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name:
Title:
ATTEST:
/s/ Xxxxx X. Xxxxxx
-------------------------------
Name:
Title:
000
XXXXX XXXXX LIMITED PARTNERSHIP
By: Lamar Texas General Partner,
Inc., its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name:
Title:
ATTEST:
/s/ Xxxxx X. Xxxxxx
--------------------------------
Name:
Title:
000
XXXXX XXXXXXXXX LIMITED PARTNERSHIP
LAMAR TENNESSEE LIMITED PARTNERSHIP
II
By: The Lamar Corporation, their
General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name:
Title:
ATTEST:
/s/ Xxxxx X. Xxxxxx
-------------------
Name:
Title:
LAMAR AIR, L.L.C.
By: The Lamar Corporation, its
Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name:
Title:
ATTEST:
/s/ Xxxxx X. Xxxxxx
-------------------
Name:
Title:
114
MINNESOTA LOGOS, A PARTNERSHIP
By: Minnesota Logos, Inc., its
General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name:
Title:
ATTEST:
/s/ Xxxxx X. Xxxxxx
----------------
Name:
Title:
000
XXXXX XXXXXX BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
ATTEST:
/s/ Alison Della Bella
----------------------
Name: Alison Della Bella
Title: Assistant Secretary
108
116
[EXHIBIT A]
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
1 This paragraph should only be added if the Security is issued in global form.
A-1
117
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A TRANSACTION INVOLVING A MINIMUM PURCHASE PRICE OF $250,000 FOR
SUCH SECURITIES FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
XXXXX ADVERTISING COMPANY
8 5/8% SENIOR SUBORDINATED NOTE DUE 2007
No. CUSIP No. [ ]
$[ ]
XXXXX ADVERTISING COMPANY, a Delaware corporation, promises to pay
to [ ], or registered assigns, the principal sum of $[ ], on
September 15, 2007.
Interest Payment Dates: March 15 and September 15,
commencing March 15, 1998.
Record Dates: March 1 and September 1,
commencing March 1, 1998
(whether or nor a business
day).
A-2
118
Additional provisions of this Note are set forth on the other side
of this Note.
XXXXX ADVERTISING COMPANY
By:_____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST
COMPANY
as Trustee, certifies that
this is one of the __ %
Senior Subordinated Notes
referred to in the
Indenture
By:_______________________________
Authorized Signatory
A-3
119
[FORM OF REVERSE SIDE OF INITIAL NOTE]
XXXXX ADVERTISING COMPANY
8 5/8% SENIOR SUBORDINATED NOTE DUE 2007
1. INTEREST.
Xxxxx Advertising Company, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note semiannually on
March 15 and September 15 of each year (each an "Interest Payment Date"),
commencing on March 15, 1998 at the rate of 8 5/8% per annum. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Interest shall
accrue from the most recent date to which interest has been paid or duly
provided for, or if no interest has been paid or duly provided for, from
September 25, 1997.
The Company shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at a rate equal to
the rate of interest otherwise payable on the Notes.
The Company and the Guarantors will use their reasonable best
efforts to have the Exchange Offer Registration Statement or, if applicable, the
Shelf Registration Statement (each a "Registration Statement") declared
effective by the Commission as promptly as practicable after the filing thereof.
If (i) the Shelf Registration Statement or Exchange Offer Registration
Statement, as applicable under the Exchange and Registration Rights Agreement is
not filed with the Commission on or prior to 60 days after the Issue Date, (ii)
the Exchange Offer Registration Statement or, as the case may be, the Shelf
Registration Statement, is not declared effective within 120 days after the
Issue Date, (iii) the Exchange Offer is not consummated on or prior to 150 days
after the Issue Date, or (iv) the Shelf Registration Statement is filed and
declared effective after the Issue Date but shall thereafter cease to be
effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 45 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), the Company and the
Guarantors will pay liquidated damages to each holder of Transfer Restricted
Securities, during the period of such Registration Default, in an amount equal
to $0.192 per week per $1,000 principal amount of the Notes held by such holder
until the applicable Registration Statement is filed or
A-4
120
declared effective, the Exchange Offer is consummated or the Shelf Registration
Statement again becomes effective, as the case may be. All accrued liquidated
damages shall be paid to holders in the same manner as interest payments on the
Notes on semi-annual payment dates which correspond to interest payment dates
for the Notes. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease. The Trustee shall have no responsibility with
respect to the determination of the amount of any such liquidated damages. For
purposes of the foregoing, "Transfer Restricted Securities" mean each Initial
Note until (i) the date on which such Initial Note has been exchanged for a
freely transferable Exchange Note in the Exchange Offer, (ii) the date on which
such Initial Note has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement, or (iii) the
date on which such Initial Note is distributed to the public pursuant to Rule
144 under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in Paragraph
1 above (except defaulted interest) to the person who is the registered Holder
of this Note at the close of business on the Record Date immediately preceding
the Interest Payment Date. The Holder must surrender this Note to a Paying Agent
to collect principal payments. The Company will pay principal, premium, if any,
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts; provided, however, that so long
as this Note is a Global Note such payments will be made in immediately
available funds and the Company may pay principal, premium, if any, and interest
on a Note which is not a Global Note by check payable in such money. The Company
may mail an interest check with respect to any Note that is not a Global Note to
the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, State Street Bank and Trust Company, a trust company duly
organized under the laws of the Commonwealth of Massachusetts (the "Trustee"),
will act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to the Holders of the Notes. Neither the Company nor
any of its Subsidiaries or Affiliates may act as Paying Agent but may act as
registrar or co-registrar.
A-5
121
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of
September 25, 1997 (the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of this Note include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture. This
Note is subject to all such terms, and the Holder of this Note is referred to
the Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are general unsecured obligations of the Company limited
to $200,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of Indebtedness and Liens by
the Company and its Restricted Subsidiaries, mergers and sale of assets, the
payment of dividends on, or the repurchase of, Capital Stock of the Company and
its Restricted Subsidiaries, certain other Restricted Payments by the Company
and its Restricted Subsidiaries and certain transactions with Affiliates.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinated and subject in right of payment
to the prior payment in full in cash of all Senior Indebtedness, and this Note
is issued subject to such provisions. Each Holder of this Note, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose.
6. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company, in whole
or in part, at any time on or after September 15, 2002 at the following
redemption prices (expressed as a percentage of principal amount), together, in
each case, with accrued and unpaid interest to (but not including) the
redemption date, if redeemed during the twelve-month period beginning on
September 15, of each year listed below:
A-6
122
Year Percentage
---- ----------
2002................................ 104.313%
2003................................ 102.875%
2004................................ 101.438%
2005 and thereafter................. 100.000%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to $60 million of the original principal amount of the Notes at any
time and from time to time prior to September 15, 2000 at a redemption price
equal to 108.625% of the aggregate principal amount so redeemed, plus accrued
interest to but not including the redemption date out of the Net Proceeds of one
or more Public Equity Offerings; provided that at least $140 million of the
aggregate principal amount of the Notes originally issued remain outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 120 days following the closing of any such Public
Equity Offering.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first-class mail at least 30
days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be
used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth in
the Indenture. The Company is also required to make an offer to purchase Notes
upon occurrence of a Change of Control in accordance with procedures set forth
in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. As provided in the Indenture and subject
to certain limitations therein set forth, a Holder may register the transfer or
A-7
123
exchange of Notes 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 of or exchange any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before a selection of Notes to be redeemed or any Note after
it is called for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its written request. After that, Holders entitled
to money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Company, the Guarantors and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding and any existing default or compliance with any
provision may be waived in a particular instance with the consent of the Holders
of a majority in principal amount of the Notes then outstanding. Without the
consent of Holders, the Company, the Guarantors and the Trustee may amend the
Indenture or the Notes or supplement the Indenture for certain specified
purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or making
any other change that does not adversely affect the rights of any Holder.
13. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Notes then outstanding
may declare all the Notes to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Notes may not
A-8
124
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity reasonably satisfactory to it before it enforces
the Indenture or the Notes. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
14. 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, any Guarantor or their Affiliates, and may otherwise deal with the
Company, any Guarantor or their Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company or any Guarantor shall not have
any liability for any obligations of the Company or any Guarantor under the
Notes or the Indenture or for any claim based on, in respect or by reason of,
such obligations or their creation. The Holder of this Note by accepting this
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of this Note.
16. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a
Note 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).
X-0
000
00. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP Numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
19. GOVERNING LAW.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE AGREES 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 THE INDENTURE OR THIS NOTE.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON
WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS
MAY BE MADE TO: XXXXX ADVERTISING COMPANY, 0000 XXXXXXXXX XXXXXXXXX,
XXXXX XXXXX, XXXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL OFFICER.
A-10
126
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date:______________________ Your Signature:_______________________________
__________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:____________________________________________________
A-11
127
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Each Guarantor (the "Guarantor", which term includes any successor
Person under the Indenture) has unconditionally guaranteed, on a senior
subordinated basis, jointly and severally, to the extent set forth in the
Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of, and interest on the Notes, to the extent permitted by law
and the due and punctual performance of all other Obligations of the Company to
the Noteholders or the Trustee all in accordance with the terms set forth in the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other Obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, at stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Noteholders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
Guarantors:
THE LAMAR CORPORATION
INTERSTATE LOGOS, INC.
XXXXX ADVERTISING OF COLORADO
SPRINGS, INC.
XXXXX ADVERTISING OF XXXXXXX,
INC.
XXXXX ADVERTISING OF MOBILE, INC.
XXXXX ADVERTISING OF SOUTH
GEORGIA, INC.
XXXXX ADVERTISING OF SOUTH
MISSISSIPPI, INC.
A-12
128
XXXXX ADVERTISING OF YOUNGSTOWN,
INC.
TLC PROPERTIES, INC.
MISSOURI LOGOS, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
UTAH LOGOS, INC.
OHIO LOGOS, INC.
GEORGIA LOGOS, INC.
KANSAS LOGOS, INC.
LAMAR PENSACOLA TRANSIT, INC.
LAMAR TENNESSEE LIMITED
PARTNER, INC.
LAMAR TEXAS GENERAL PARTNER,
INC.
MICHIGAN LOGOS, INC.
MINNESOTA LOGOS, INC.
MISSISSIPPI LOGOS, INC.
NEW JERSEY LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
TENNESSEE LOGOS, INC.
TEXAS LOGOS, INC.
TLC PROPERTIES II, INC.
VIRGINIA LOGOS, INC.
XXXXX ADVERTISING OF
HUNTINGTON-BRIDGEPORT, INC.
XXXXX ADVERTISING OF PENN,
INC.
XXXXX ADVERTISING OF MICHIGAN,
INC.
XXXXX ADVERTISING OF MISSOURI,
INC.
CANADIAN TODS LIMITED
NEVADA LOGOS, INC.
KENTUCKY LOGOS, INC.
FLORIDA LOGOS, INC.
LAMAR ELECTRICAL, INC.
By:_____________________________________
Name:
Title:
ATTEST:
________________________
Name:
Title:
A-13
000
XXXXX XXXXX LIMITED PARTNERSHIP
By: Lamar Texas General Partner,
Inc., its General Partner
By: ___________________________
Name:
Title:
ATTEST:
_________________________
Name:
Title:
A-14
000
XXXXX XXXXXXXXX LIMITED PARTNERSHIP
LAMAR TENNESSEE LIMITED PARTNERSHIP
II
By: The Lamar Corporation, their
General Partner
By: ______________________________
Name:
Title:
ATTEST:
_______________________
Name:
Title:
LAMAR AIR, L.L.C.
By: The Lamar Corporation, its
Manager
By: ______________________________
Name:
Title:
ATTEST:
_______________________
Name:
Title:
A-15
131
MINNESOTA LOGOS, A PARTNERSHIP
By: Minnesota Logos, Inc., its
General Partner
By: ___________________________
Name:
Title:
ATTEST:
_______________________
Name:
Title:
X-00
000
X-00
133
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED SECURITIES
This certificate relates to $____________ principal amount of Notes
held in (check applicable space)_____ book-entry or ____ definitive
form by the undersigned.
The undersigned (check one box below):
|_| has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depository a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above);
|_| has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Notes and the last date, if any, on which such Notes were owned by the
Company or any Affiliate of the Company, the
A-18
134
undersigned confirms that such Notes are being transferred in accordance with
its terms:
CHECK ONE BOX BELOW:
(1) /_/ to the Company; or
(2) /_/ pursuant to an effective registration
statement under the Securities Act of 1933;
or
(3) /_/ inside the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is given that such transfer
is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933;
or
(4) /_/ outside the United States in an offshore
transaction within the meaning of Regulation S
under the Securities Act in compliance with Rule
904 under the Securities Act of 1933; or
(5) /_/ pursuant to another available exemption from
registration such as the exemption provided by
Rule 144 under the Securities Act of 1933.
A-19
135
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; provided, however, that if box (4) or (5) is checked,
the Trustee may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
_____________________________________
Signature
Signature Guarantee:
_____________________________ _____________________________________
Signature must be guaranteed Signature
-----------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note 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.
Dated:_____________________ ________________________________________
NOTICE: To be executed by
an executive officer
A-20
136
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Note have been
made:
Date of Amount of Amount of Principal Signature of
Exchange decrease in increase in amount of this authorized
Principal Principal Global Note officer of
Amount of Amount of following such Trustee or
this Global this Global decrease or Custodian
Note Note increase
A-21
137
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.21 of the Indenture, check
the appropriate box:
/ / Section 4.14 / / Section 4.21
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.14 or Section 4.21 of the Indenture, state the amount you
elect to have purchased:
$________________________
Date:____________________
Your Signature:__________________________________________
(Sign exactly as your name appears on the face
of this Note)
________________________________
Signature Guaranteed
A-22
138
[EXHIBIT B]
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)
XXXXX ADVERTISING COMPANY
8 5/8% SENIOR SUBORDINATED NOTE DUE 2007
No. # CUSIP No. [ ]
$[ ]
XXXXX ADVERTISING COMPANY, a Delaware corporation, promises to pay
to [ ], or registered assigns, the principal sum of $[ ], on
September 15, 2007.
Interest Payment Dates: March 15 and September 15,
commencing March 15, 1998.
Record Dates: March 1 and September 1,
commencing March 1, 1998
(whether or not a business
day).
-----------------
(1) This paragraph should only be added if the Security is issued in global
form.
B-1
139
Additional provisions of this Note are set forth on the other side
of this Note.
XXXXX ADVERTISING COMPANY
By:____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST
COMPANY
as Trustee, certifies that
this is one of the __ %
Senior Subordinated Notes
referred to in the
Indenture
By:______________________________
Authorized Signatory
B-2
140
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
XXXXX ADVERTISING COMPANY
8 5/8% SENIOR SUBORDINATED NOTE DUE 2007
1. INTEREST.
Xxxxx Advertising Company, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note semiannually on
March 15 and September 15 of each year (each an "Interest Payment Date"),
commencing on March 15, 1998 at the rate of 8 5/8% per annum. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Interest shall
accrue from the most recent date to which interest has been paid or duly
provided for, or if no interest has been paid or duly provided for, from
September 25, 1997.
The Company shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at a rate equal to
the rate of interest otherwise payable on the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in Paragraph
1 above (except defaulted interest) to the person who is the registered Holder
of this Note at the close of business on the Record Date immediately preceding
the Interest Payment Date. The Holder must surrender this Note to a Paying Agent
to collect principal payments. The Company will pay principal, premium, if any,
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts; provided, however, that so long
as this Note is a Global Note such payments will be made in immediately
available funds and the Company may pay principal, premium, if any, and interest
on a Note which is not a Global Note by check payable in such money. The Company
may mail an interest check with respect to any Note that is not a Global Note to
the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, State Street Bank and Trust Company, a trust company duly
organized under the laws of the Commonwealth of Massachusetts (the "Trustee"),
will act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to the Holders of the Notes. Neither the Company nor
any of its Subsidiaries or Affiliates
B-3
141
may act as Paying Agent but may act as registrar or co-registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of
September 25, 1997 (the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of this Note include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture. This
Note is subject to all such terms, and the Holder of this Note is referred to
the Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are general unsecured obligations of the Company limited
to $200,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of Indebtedness and Liens by
the Company and its Restricted Subsidiaries, mergers and sale of assets, the
payment of dividends on, or the repurchase of, Capital Stock of the Company and
its Restricted Subsidiaries, certain other Restricted Payments by the Company
and its Restricted Subsidiaries and certain transactions with Affiliates.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinated and subject in right of payment
to the prior payment in full in cash of all Senior Indebtedness, and this Note
is issued subject to such provisions. Each Holder of this Note, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose.
6. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company, in whole
or in part, at any time on or after September 15, 2002 at the following
redemption prices (expressed as a percentage of principal amount), together, in
each case, with accrued and unpaid interest to (but not
B-4
142
including) the redemption date, if redeemed during the twelve-month period
beginning on December 1, of each year listed below:
Year Percentage
---- ----------
2002................................ 104.313%
2003................................ 102.875%
2004................................ 101.438%
2005 and thereafter................. 100.000%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to $60 million of the original principal amount of the Notes at any
time and from time to time prior to September 15, 2000 at a redemption price
equal to 108.625% of the aggregate principal amount so redeemed, plus accrued
interest to but not including the redemption date out of the Net Proceeds of one
or more Public Equity Offerings; provided that at least $140 million of the
aggregate principal amount of the Notes originally issued remain outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 120 days following the closing of any such Public
Equity Offering.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first-class mail at least 30
days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be
used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth in
the Indenture. The Company is also required to make an offer to purchase Notes
upon occurrence of a Change of Control in accordance with procedures set forth
in the Indenture.
B-5
143
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. As provided in the Indenture and subject
to certain limitations therein set forth, a Holder may register the transfer or
exchange of Notes 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 of or exchange any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before a selection of Notes to be redeemed or any Note after
it is called for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its written request. After that, Holders entitled
to money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Company, the Guarantors and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding and any existing default or compliance with any
provision may be waived in a particular instance with the consent of the Holders
of a majority in principal amount of the Notes then outstanding. Without the
consent of Holders, the Company, the Guarantors and the Trustee may amend the
Indenture or the Notes or supplement the Indenture for certain specified
purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or making
any other change that does not adversely affect the rights of any Holder.
B-6
144
13. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Notes then outstanding
may declare all the Notes to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the Indenture
or the Notes. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
14. 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, any Guarantor or their Affiliates, and may otherwise deal with the
Company, any Guarantor or their Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company or any Guarantor shall not have
any liability for any obligations of the Company or any Guarantor under the
Notes or the Indenture or for any claim based on, in respect or by reason of,
such obligations or their creation. The Holder of this Note by accepting this
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of this Note.
16. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants
B-7
145
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).
18. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP Numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
19. GOVERNING LAW.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE AGREES 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 THE INDENTURE OR THIS NOTE.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
XXXXX ADVERTISING COMPANY, 0000 XXXXXXXXX XXXXXXXXX, XXXXX XXXXX, XXXXXXXXX
00000, ATTENTION: CHIEF FINANCIAL OFFICER.
B-8
146
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date:_____________________ Your Signature:_______________________________
_________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:___________________________________________________________
B-9
147
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Each Guarantor (the "Guarantor", which term includes any successor
Person under the Indenture) has unconditionally guaranteed, on a senior
subordinated basis, jointly and severally, to the extent set forth in the
Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of, and interest on the Notes, to the extent permitted by law
and the due and punctual performance of all other Obligations of the Company to
the Noteholders or the Trustee all in accordance with the terms set forth in the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other Obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, at stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Noteholders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
Guarantors:
THE LAMAR CORPORATION
INTERSTATE LOGOS, INC.
XXXXX ADVERTISING OF COLORADO
SPRINGS, INC.
XXXXX ADVERTISING OF XXXXXXX,
INC.
XXXXX ADVERTISING OF MOBILE, INC.
XXXXX ADVERTISING OF SOUTH
GEORGIA, INC.
XXXXX ADVERTISING OF SOUTH
MISSISSIPPI, INC.
B-10
148
XXXXX ADVERTISING OF YOUNGSTOWN,
INC.
TLC PROPERTIES, INC.
MISSOURI LOGOS, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
UTAH LOGOS, INC.
OHIO LOGOS, INC.
GEORGIA LOGOS, INC.
KANSAS LOGOS, INC.
LAMAR PENSACOLA TRANSIT, INC.
LAMAR TENNESSEE LIMITED
PARTNER, INC.
LAMAR TEXAS GENERAL PARTNER,
INC.
MICHIGAN LOGOS, INC.
MINNESOTA LOGOS, INC.
MISSISSIPPI LOGOS, INC.
NEW JERSEY LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
TENNESSEE LOGOS, INC.
TEXAS LOGOS, INC.
TLC PROPERTIES II, INC.
VIRGINIA LOGOS, INC.
XXXXX ADVERTISING OF
HUNTINGTON-BRIDGEPORT, INC.
XXXXX ADVERTISING OF PENN,
INC.
XXXXX ADVERTISING OF MICHIGAN,
INC.
XXXXX ADVERTISING OF MISSOURI,
INC.
CANADIAN TODS LIMITED
NEVADA LOGOS, INC.
KENTUCKY LOGOS, INC.
FLORIDA LOGOS, INC.
LAMAR ELECTRICAL, INC.
By:_______________________________
Name:
Title:
ATTEST:
_________________________
Name:
Title:
B-11
000
XXXXX XXXXX LIMITED PARTNERSHIP
By: Lamar Texas General Partner,
Inc., its General Partner
By: ___________________________
Name:
Title:
ATTEST:
____________________
Name:
Title:
B-12
000
XXXXX XXXXXXXXX LIMITED PARTNERSHIP
LAMAR TENNESSEE LIMITED PARTNERSHIP
II
By: The Lamar Corporation, their
General Partner
By: ______________________________
Name:
Title:
ATTEST:
____________________
Name:
Title:
LAMAR AIR, L.L.C.
By: The Lamar Corporation, its
Manager
By: ______________________________
Name:
Title:
ATTEST:
____________________
Name:
Title:
B-13
151
MINNESOTA LOGOS, A PARTNERSHIP
By: Minnesota Logos, Inc., its
General Partner
By: ___________________________
Name:
Title:
ATTEST:
____________________
Name:
Title:
B-14
152
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED SECURITIES
This certificate relates to $____________ principal amount of Notes held in
(check applicable space) ____ book-entry or ____ definitive form by the
undersigned.
The undersigned (check one box below):
/_/ has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depository a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above);
/_/ has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occuring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Notes and the last date, if any, on which such Notes were owned by the
Company or any Affiliate of the Company, the
B-15
153
undersigned confirms that such Notes are being transferred in accordance with
its terms:
CHECK ONE BOX BELOW:
(1) /_/ to the Company; or
(2) /_/ pursuant to an effective registration
statement under the Securities Act of 1933;
or
(3) /_/ inside the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is given that such transfer
is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933;
or
(4) /_/ outside the United States in an offshore
transaction within the meaning of Regulation S
under the Securities Act in compliance with Rule
904 under the Securities Act of 1933; or
(5) /_/ pursuant to another available exemption from
registration such as the exemption provided by
Rule 144 under the Securities Act of 1933.
B-16
154
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; provided, however, that if box (4) or (5) is checked,
the Trustee may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
____________________________________
Signature
Signature Guarantee:
____________________________ ____________________________________
Signature must be guaranteed Signature
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note 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.
Dated:____________________ ______________________________________
NOTICE: To be executed by
an executive officer
B-17
155
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Note have been
made:
Date of Amount of Amount of Principal Signature of
Exchange decrease in increase in amount of this authorized
Principal Principal Global Note officer of
Amount of Amount of following such Trustee or
this Global this Global decrease or Custodian
Note Note increase
B-18
156
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.21 of the Indenture, check
the appropriate box:
/ / Section 4.14 / / Section 4.21
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.14 or Section 4.21 of the Indenture, state the amount you
elect to have purchased:
$________________________
Date:____________________
Your Signature:____________________________________________________
(Sign exactly as your name appears on the face of this Note)
______________________________________
Signature Guaranteed
B-19
157
[EXHIBIT C]
[FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS]
Transferee Letter of Representation
Xxxxx Advertising Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Location: Corporate Trust Department
Dear Ladies and Gentlemen:
This certificate is delivered to request a transfer of $
principal amount of the % Senior Subordinated Notes due 2007 (the "Notes")
of Xxxxx Advertising Company (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:________________________________________________
Address:_____________________________________________
Taxpayer ID Number:__________________________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and invest in
or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
X-0
000
0. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the
United States within the meaning of Regulation S under the Securities Act or (e)
to an institutional "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is purchasing for its own account
or for the account of such an institutional "accredited investor", in each case
in a transaction involving a minimum principal amount of Notes of $250,000 or
(f) pursuant to any other available exemption from the registration requirements
of the Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Notes is proposed to be made pursuant to
clause (e) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Company and the Trustee, which shall provide, among other
things, that the transferee is an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it
is acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Trustee
C-2
159
reserve the right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Notes pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:____________________________
BY_____________________________________
C-3
160
[EXHIBIT F]
[FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO RULE 144A]
Xxxxx Advertising Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Location: Corporate Trust Department
[date]
Re: Xxxxx Advertising Company (the "Company") %
Senior Subordinated Notes due 2007 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal
amount of the Notes, we hereby certify that such transfer is being effected
pursuant to and in accordance with Rule 144A under the United States Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly, we hereby
further certify that the Notes are being transferred to a person that we
reasonably believe is purchasing the Notes for its own account, or for one or
more accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A and such Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
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 Transferor]
By:_____________________________________
Authorized Signature
F-1
161
[EXHIBIT G]
[Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S]
[date]
Xxxxx Advertising Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Location: Corporate Trust Department
Re: Xxxxx Advertising Company (the "Company") %
Senior Subordinated Notes due 2007 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $ ______________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a person in
the United States;
(2) either (a) 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 or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule Rule 904(b) of Regulation S,and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 904(c)(1) of Regulation S are applicable thereto, we confirm
that such sale has been
G-1
162
made in accordance with the applicable provisions of Rule 904(c)(1).
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_____________________________________
Authorized Signature
G-2
