EXHIBIT 4.1
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OUTDOOR COMMUNICATIONS, INC.,
as Company,
OCI(N) CORP. and
OCI(S) CORP.,
as Guarantors,
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Trustee
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INDENTURE
Dated as of [ ], 1997
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$100,000,000
[ ]% Senior Subordinated Notes due 2007
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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ss. 310(a)(1).............................................................. 7.10; 12.1
(a)(2)............................................................... 7.10; 12.1
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(b).................................................................. 7.8; 7.10; 12.2
(c).................................................................. N.A.
ss. 311(a)................................................................. 7.11
(b).................................................................. 7.11
(c).................................................................. N.A.
ss. 312(a)................................................................. 2.5
(b).................................................................. 12.3
(c).................................................................. 12.3
ss. 313(a)................................................................. 7.6
(b)(1)............................................................... 7.6
(b)(2)............................................................... 7.6
(c).................................................................. 7.6; 12.2
(d).................................................................. 7.6
ss. 314(a)................................................................. 4.6; 4.7; 12.2
(b).................................................................. N.A.
(c)(1)............................................................... 12.4
(c)(2)............................................................... 12.4
(c)(3)............................................................... 12.4
(d).................................................................. N.A.
(e).................................................................. 12.5
(f).................................................................. N.A.
ss. 315(a)................................................................. 7.1(b)
(b).................................................................. 7.5; 12.2
(c).................................................................. 7.1(a)
(d).................................................................. 7.1(c)
(e).................................................................. 6.11
ss. 316(a) (last sentence)................................................. 2.9
(a)(1)(A)............................................................ 6.5
(a)(1)(B)............................................................ 6.4
(a)(2)............................................................... N.A.
(b).................................................................. 6.7
ss. 317(a)(1).............................................................. 6.8
(a)(2)............................................................... 6.9
(b).................................................................. 2.4
ss. 318(a)................................................................. 12.1
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of this Indenture.
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.1. Definitions...............................................................................1
SECTION 1.2. Incorporation by Reference of Trust Indenture Act........................................21
SECTION 1.3. Rules of Construction....................................................................21
ARTICLE II THE SECURITIES
SECTION 2.1. Form and Dating..........................................................................22
SECTION 2.2. Execution and Authentication.............................................................22
SECTION 2.3. Registrar and Paying Agent...............................................................23
SECTION 2.4. Paying Agent To Hold Money in Trust......................................................24
SECTION 2.5. Securityholder Lists.....................................................................24
SECTION 2.6. Transfer and Exchange....................................................................24
SECTION 2.7. Replacement Securities...................................................................25
SECTION 2.8. Outstanding Securities...................................................................25
SECTION 2.9. Treasury Securities......................................................................26
SECTION 2.10. Temporary Securities....................................................................26
SECTION 2.11. Cancellation............................................................................26
SECTION 2.12. Defaulted Interest......................................................................27
SECTION 2.13. CUSIP Number............................................................................27
SECTION 2.14. Deposit of Moneys.......................................................................27
ARTICLE III REDEMPTION
SECTION 3.1. Election To Redeem; Notices to Trustee...................................................28
SECTION 3.2. Selection of Securities To Be Redeemed...................................................28
SECTION 3.3. Notice of Redemption.....................................................................29
SECTION 3.4. Effect of Notice of Redemption...........................................................30
SECTION 3.5. Deposit of Redemption Price..............................................................30
SECTION 3.6. Securities Redeemed in Part..............................................................30
ARTICLE IV COVENANTS
SECTION 4.1. Payment of Securities....................................................................31
SECTION 4.2. Maintenance of Office or Agency..........................................................31
SECTION 4.3. Corporate Existence......................................................................32
SECTION 4.4. Payment of Taxes and Other Claims........................................................32
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SECTION 4.5. Maintenance of Properties; Insurance; Books and Records; Compliance with Law.............32
SECTION 4.6. Compliance Certificates..................................................................33
SECTION 4.7. Reports..................................................................................34
SECTION 4.8. Limitation on Additional Indebtedness....................................................34
SECTION 4.9. Limitation on Restricted Payments........................................................35
SECTION 4.10. Limitation on Liens.....................................................................37
SECTION 4.11. Limitation on Guarantees of Certain Indebtedness........................................37
SECTION 4.12. Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries...........38
SECTION 4.13. Asset Sales.............................................................................38
SECTION 4.14. Limitation on Transactions with Affiliates..............................................39
SECTION 4.15. Change of Control.......................................................................40
SECTION 4.16. Limitation on Issuance and Sales of Preferred Stock by Subsidiaries.....................43
SECTION 4.17. Limitation on Activities of the Company and Its Subsidiaries............................43
SECTION 4.18. Limitation on Other Senior Subordinated Debt............................................43
SECTION 4.19. Waiver of Stay, Extension or Usury Laws.................................................43
ARTICLE V SUCCESSOR CORPORATION
SECTION 5.1. Consolidation, Merger, Sale of Assets, Etc...............................................44
SECTION 5.2. Successor Entity Substituted.............................................................46
SECTION 5.3. Status of Subsidiaries...................................................................46
ARTICLE VI DEFAULT AND REMEDIES
SECTION 6.1. Events of Default........................................................................47
SECTION 6.2. Acceleration.............................................................................49
SECTION 6.3. Other Remedies...........................................................................50
SECTION 6.4. Waiver of Past Default...................................................................50
SECTION 6.5. Control by Majority......................................................................50
SECTION 6.6. Limitation on Suits......................................................................51
SECTION 6.7. Rights of Holders To Receive Payment.....................................................51
SECTION 6.8. Collection Suit by Trustee...............................................................52
SECTION 6.9. Trustee May File Proofs of Claim.........................................................52
SECTION 6.10. Priorities..............................................................................53
SECTION 6.11. Undertaking for Costs...................................................................53
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ARTICLE VII TRUSTEE
SECTION 7.1. Duties of Trustee........................................................................54
SECTION 7.2. Rights of Trustee........................................................................55
SECTION 7.3. Individual Rights of Trustee.............................................................56
SECTION 7.4. Trustee's Disclaimer.....................................................................56
SECTION 7.5. Notice of Defaults.......................................................................57
SECTION 7.6. Reports by Trustee to Holders............................................................57
SECTION 7.7. Compensation and Indemnity...............................................................57
SECTION 7.8. Replacement of Trustee...................................................................58
SECTION 7.9. Successor Trustee by Merger, Etc.........................................................60
SECTION 7.10. Eligibility; Disqualification...........................................................60
SECTION 7.11. Preferential Collection of Claims Against the Company...................................60
SECTION 7.12. Money Held in Trust.....................................................................60
SECTION 7.13. Preferred Collection of Claims..........................................................60
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Satisfaction and Discharge...............................................................61
SECTION 8.2. Legal Defeasance and Covenant Defeasance.................................................62
SECTION 8.3. Application of Trust Money...............................................................65
SECTION 8.4. Repayment to the Company or a Guarantor..................................................65
SECTION 8.5. Reinstatement............................................................................66
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders...............................................................66
SECTION 9.2. With Consent of Holders..................................................................67
SECTION 9.3. Compliance with Trust Indenture Act......................................................68
SECTION 9.4. Revocation and Effect of Amendments and Consents.........................................68
SECTION 9.5. Notation on or Exchange of Securities....................................................69
SECTION 9.6. Trustee To Sign Amendments, Etc..........................................................70
SUBORDINATION OF SECURITIES AND THE GUARANTEES..........................................70
SECTION 10.1. Securities Subordinate to Senior
Indebtedness and Guarantor Senior
Indebtedness, as the case may be,
including obligations under the new
Credit Facility......................................................................70
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Securities Subordinate to Senior Indebtedness
and Guarantor Senior Indebtedness, as the case
may be, including obligations under the new
Credit Facility......................................................................70
SECTION 10.2. Payment Over of Proceeds upon Dissolution, etc..........................................70
SECTION 10.3. Suspension of Payment When Senior Indebtedness in Default...............................72
SECTION 10.4. Trustee's Relation to Senior
Indebtedness and Guarantor Senior
Indebtedness, as the case may be,
including obligations under the
new Credit Facility..................................................................74
Trustee's Relation to Senior Indebtedness and Guarantor Senior Indebtedness,
as the case may be, including obligations under
the new Credit Facility..............................................................74
SECTION 10.5. Subrogation to Rights of Holders of
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be,
including obligations under the new Credit Facility..................................75
Subrogation to Rights of Holders of Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, including obligations under
the new Credit Facility..............................................................75
SECTION 10.6. Provisions Solely To Define Relative Rights.............................................76
SECTION 10.7. Trustee To Effectuate Subordination.....................................................77
SECTION 10.8. No Waiver of Subordination Provisions...................................................77
SECTION 10.9. Notice to Trustee.......................................................................78
SECTION 10.10. Reliance on Judicial Order or Certificate of Liquidating Agent.........................80
SECTION 10.11. Rights of Trustee as a Holder of
Senior Indebtedness and Guarantor Senior Indebtedness,
as the case may be, including obligations under the new
Credit Facility; Preservation of Trustee's Rights....................................80
SECTION 10.12. Article Applicable to Paying Agents....................................................81
SECTION 10.13. No Suspension of Remedies..............................................................81
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ARTICLE XI GUARANTEE
SECTION 11.1. Unconditional Guarantee.................................................................81
SECTION 11.2. Severability............................................................................82
SECTION 11.3. Limitation of Liability.................................................................82
SECTION 11.4. Guarantors May Consolidate, etc., on Certain Terms......................................83
SECTION 11.5. Contribution............................................................................84
SECTION 11.6. Waiver of Subrogation...................................................................84
SECTION 11.7. Execution of Guarantee..................................................................85
SECTION 11.8. Waiver of Stay, Extension or Usury Laws.................................................85
ARTICLE XII MISCELLANEOUS
SECTION 12.1. Trust Indenture Act Controls............................................................86
SECTION 12.2. Notices.................................................................................86
SECTION 12.3. Communications by Holders with Other Holders............................................87
SECTION 12.4. Certificate and Opinion of Counsel as to Conditions Precedent...........................87
SECTION 12.5. Statements Required in Certificate and Opinion of Counsel...............................87
SECTION 12.6. Rules by Trustee, Paying Agent, Registrar...............................................88
SECTION 12.7. Legal Holidays..........................................................................88
SECTION 12.8. Governing Law...........................................................................88
SECTION 12.9. No Recourse Against Others..............................................................88
SECTION 12.10. Successors.............................................................................89
SECTION 12.11. Duplicate Originals....................................................................89
SECTION 12.12. Joint and Several Obligations..........................................................89
SECTION 12.13. Separability...........................................................................89
SECTION 12.14. Table of Contents, Headings, Etc.......................................................89
EXHIBIT A - Form of Security
EXHIBIT B - Form of Guarantee
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INDENTURE dated as of [ ], 1997 by and among OUTDOOR COMMUNICATIONS,
INC., a Delaware corporation (the "Company"), the Guarantors (as defined) and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, [a North Carolina banking
corporation,] as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Securities to be issued as provided
for in this Indenture. All things necessary to make the Securities the valid and
binding obligations of the Company have been done.
The Securities will be unconditionally guaranteed (the "Guarantees")
on a senior unsecured basis, jointly and severally, by OCI (N) Corp. and OCI (S)
Corp., the Company's Subsidiaries (the "Guarantors").
The parties hereto agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.1. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Subsidiary or assumed in connection with an Asset
Acquisition by such Person and not incurred in connection with, or in
anticipation of, such Person becoming a Subsidiary or such Asset Acquisition.
"Advertising Displays" mean all posters, signs, billboards and other
outdoor advertising displays and related sites therefor owned or leased (as
lessee) by the Company and its Subsidiaries.
"Affiliate" of any specified Person means any other Person that,
directly or indirectly through one or more intermediaries, controls, 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
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agreement or otherwise. For purposes of this definition, none of The Chase
Manhattan Bank or any of its Affiliates shall be deemed an Affiliate of the
Company.
"Affiliate Transaction" has the meaning provided in Section 4.14.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Acquisition" means (i) an Investment by the Company or any of
its Subsidiaries in any other Person pursuant to which such Person shall become
a Subsidiary of the Company or shall be consolidated or merged with the Company
or any Subsidiary of the Company, or (ii) the acquisition by the Company or any
Subsidiary of the Company of assets of any Person comprising a division or line
of business of such Person or which is otherwise outside of the ordinary course
of business, or (iii) the acquisition by the Company or any Subsidiary of the
Company of Advertising Displays of any Person with a Fair Market Value in excess
of $100,000.
"Asset Sale" means any direct or indirect sale, conveyance, transfer
or lease (that has the effect of a disposition and is not for security purposes)
or other disposition (that is not for security purposes) to any Person other
than the Company or a Subsidiary of the Company, in one transaction or a series
of related transactions, of (i) any Capital Stock of any Subsidiary of the
Company, (ii) any assets of the Company or any Subsidiary of the Company which
constitute substantially all of an operating unit or line of business of the
Company and its Subsidiaries, (iii) any other property or asset of the Company
or any Subsidiary of the Company outside of the ordinary course of business or
(iv) any Advertising Displays of the Company or any Subsidiary of the Company
with a Fair Market Value in excess of $100,000. For the purposes of this
definition, the term "Asset Sale" shall not include (i) any disposition of
property or assets of the Company that is governed under Section 5.1, (ii) sales
of property and equipment that have become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company or
any Subsidiary of the Company, as the case may be, (iii) dispositions of
property pursuant to any condemnation or other taking by any governmental
authority, provided, that any net cash proceeds of such taking are applied
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pursuant to Section 4.13(iii) and (iv) for purposes of Section 4.13, any sale,
conveyance, transfer, lease or other disposition of any property or asset,
whether in one transaction or a series of re-
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lated transactions occurring within one year, either (x) involving assets with a
Fair Market Value not in excess of $500,000 or (y) which constitutes an
incurrence of a Capitalized Lease Obligation.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any of its Subsidiaries 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, (c) provision for minority interest holders
in any Subsidiary of the Company as a result of such Asset Sale and (d)
deduction of appropriate amounts to be provided by the Company or such
Subsidiary as a reserve, in accordance with GAAP, against any liabilities
associated with the assets sold or disposed of in such Asset Sale and retained
by the Company or such 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 non-cash consideration received by the
Company or any Subsidiary from such Asset Sale or other disposition upon the
liquidation or conversion of such notes or non-cash consideration into cash.
"Available Asset Sale Proceeds" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that has not been applied
in accordance with Section 4.13(iii).
"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.
"Bankruptcy Law" means Title 11 of the U.S. Code or any other similar
Federal, state or foreign law for the relief of debtors.
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"Board" of any Person means the board of directors, management
committee or other governing body of such Person.
"Board Resolution" means a copy of a resolution certified by a
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the board of directors of the Company to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, a Sunday or
any day on which banking institutions in New York, New York, are required or
authorized by law or other governmental action to be closed.
"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 accordance with GAAP, and for purposes of this definition,
the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with GAAP.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any lender party to the
New Credit Facility or with any domestic commercial bank having capital and
surplus in excess of $500 million and a ▇▇▇▇▇▇▇▇ Bank Watch Rating of "B" or
better, (iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) above
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, (v) commercial paper having a rating of at least P1 from
Moody's or a rating of at least Al from S&P and (vi) money market mutual or
similar funds having assets in excess of $100 million.
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"Change of Control" means the occurrence of any of the
following events (whether or not approved by the Board of Directors of the
Company); (i) any Person (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1)under
the Exchange Act), other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
shares that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the happening of
an event or otherwise), directly or indirectly, of more than 35% of the total
voting power of the then outstanding Voting Stock of the Company; (ii) the
Company consolidates with, or merges with or into, another Person (other than
the Company or a Wholly Owned Subsidiary) or the Company or any or its
Subsidiaries sells, assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of the assets of the Company and its Subsidiaries
(determined on a consolidated basis) to any Person (other than the Company or
any Wholly Owned Subsidiary), other than any such transaction where immediately
after such transaction the Person or Persons that "beneficially owned" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time) immediately prior to such transaction,
directly or indirectly, a majority of the total voting power of the then
outstanding Voting Stock of the Company, as the case may be, "beneficially own"
(as so determined), directly or indirectly, a majority of the total voting power
of the then outstanding Voting Stock of the surviving or transferee Person;
(iii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors of the Company 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 (iv) the Company is liquidated or dissolved or adopts a plan of liquidation
or dissolution other than in a transaction which complies with the provisions
described in Section 5.1
"Change of Control Date" has the meaning provided in
Section 4.15.
"Change of Control Offer" has the meaning provided in
Section 4.15.
"Change of Control Payment Date" has the meaning provided
in Section 4.15.
"Commission" means the Securities and Exchange Commission.
"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.
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"Company" has the meaning provided in the introductory
paragraph.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest that, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its 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, amortization of
other financing fees and expenses, 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 the amount
of all dividends or distributions paid on Disqualified Capital Stock (other than
dividends paid or payable in shares of Capital Stock of the Company).
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, however, that (i) the Net Income (but not loss) of any
Person that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Subsidiary thereof, (ii) the Net Income of any
Subsidiary of such Person shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that Net
Income to such Person or one of its other Subsidiaries is not at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its stockholders, (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded, (iv)
extraordinary gains and losses shall be excluded from Consolidated Net Income
for purposes of Section 4.8 and (v) the cumulative effect of a change in
accounting principles shall be excluded.
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"consolidation" means, with respect to the Company, the
consolidation of the accounts of its Subsidiaries with those of the Company, all
in accordance with GAAP.
"covenant defeasance" has the meaning provided in Section 8.2.
"Cumulative Consolidated Interest Expense" means, as of any
date of determination, Consolidated Interest Expense of the Company from the
Issue Date 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 the Issue Date to the end of the Company's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Debt Securities" means any debt securities (including any
guarantee of such securities) issued by the Company and/or any Subsidiary in
connection with a public offering (whether or not underwritten) or a private
placement (provided such private placement is underwritten for resale pursuant
to Rule 144A, Regulation S or otherwise under the Securities Act or sold on an
agency basis by a broker-dealer or one of its Affiliates to 10 or more
beneficial holders), it being understood that the term "Debt Securities" shall
not include any evidence of Indebtedness under the New Credit Facility or any
other commercial bank borrowings or similar borrowings, recourse transfers of
financial assets, capital leases or other types of borrowings incurred in a
manner not customarily viewed as a "securities offering."
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Default Amount" means 100% of the principal amount of all
outstanding Securities, plus accrued and unpaid interest, if any, thereon.
"Designated Senior Indebtedness" means (i) all Senior
Indebtedness under or in respect of the New Credit Facility and (ii) any other
Senior Indebtedness that, at the time of the In-
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▇▇▇▇▇▇▇▇ of such Indebtedness, is specifically designated in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" by the
Company.
"Designation Amount" has the meaning provided in Section 4.16.
"Disinterested Director" means, with respect to any
transaction or series of transactions, a member of the Board of the Company, as
the case may be, other than any such Board member who has any material direct or
indirect financial interest in or with respect to such transaction or series of
transactions.
"Disqualified Capital Stock" means any Capital Stock of the
Company or any of its Subsidiaries that, 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 fixed maturity date of the Securities, for cash and/or securities
constituting Indebtedness, provided, however, that (i) such Capital Stock shall
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only constitute Disqualified Capital Stock to the extent it so matures or is
redeemable or exchangeable at the option of the holder thereof on or prior to
the final maturity date of the Securities and (ii) Preferred Stock that is
issued with the benefit of provisions requiring a change of control offer to be
made for such Preferred Stock in the event of a change of control of the
Company, which provisions have substantially the same effect as Section 4.15,
shall not be deemed to be Disqualified Capital Stock solely by virtue of such
provisions.
"EBITDA" means, for any Person, for any period, an amount
equal to (a) the sum of, without duplication, Consolidated Net Income for such
period, plus, to the extent reducing such Consolidated Net Income, (i) 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 (ii) Consolidated Interest Expense for such period, plus (iii) depreciation
for such period on a consolidated basis, plus (iv) amortization of intangibles
for such period on a consolidated basis, plus (v) any other non-cash items
reducing Consolidated Net Income for such period, minus (b) all non-cash items
increasing such Consolidated Net Income for such period, all for such Person and
its
-9-
Subsidiaries determined in accordance with GAAP, except that with respect to the
Company each of the foregoing items shall be determined on a consolidated basis
with respect to the Company and the Subsidiaries only; and provided, however,
-------- -------
that, for purposes of calculating EBITDA during any fiscal quarter, cash income
from a particular Investment of such Person (other than a consolidated
Subsidiary of the Company) shall be included only (x) if cash income has been
received by such Person with respect to such Investment during each of the
previous four fiscal quarters, or (y) if the cash income derived from such
Investment is attributable to Cash Equivalents.
"Event of Default" has the meaning provided in Section 6.1.
"Excess Proceeds" means, with respect to any Asset Sale, the
then Available Asset Sale Proceeds less any such Available Asset Sale Proceeds
that are required to be applied and are applied in accordance with Section 4.13.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the price that could be negotiated in an arms'-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under pressure or compulsion to complete the transaction. Unless
otherwise specified in this Indenture, Fair Market Value shall be determined by
the Board of the Company acting in good faith and shall be evidenced by a Board
Resolution delivered to the Trustee.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States on the Issue Date.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
of all of such obligation and (ii) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
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"Guarantee" has the meaning provided in the third
introductory paragraph hereto.
"Guarantor" has the meaning provided in the third
introductory paragraph hereto.
"Guarantor Senior Indebtedness" means, with respect to the
Indebtedness of any Guarantor, any such Indebtedness represented by a guarantee
by such Guarantor of any Senior Indebtedness.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
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 by itself 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, that 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, without limitation, 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, (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 secured thereby shall have been assumed, (iii)
guarantees of items 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
-11-
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, (v) Disqualified Capital Stock of such
Person or any of its Subsidiaries and (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). 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 and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, provided that (i) the amount
--------
outstanding at any time of any Indebtedness issued with original issue discount,
including the Notes, 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, (ii)
Indebtedness shall not include any liability for federal, state, local or other
taxes and (iii) the principal amount of any Indebtedness shall be reduced by the
aggregate amount of Cash Equivalents of the Company and its Subsidiaries that
are pledged to secure, and are required to be applied solely to, the repayment
of the principal of such Indebtedness. Notwithstanding any other provision of
the foregoing definition, any trade payable arising from the purchase of goods
or materials or for services obtained in the ordinary course of business shall
not be deemed to be "Indebtedness" of the Company or any of its Subsidiaries for
purposes of this definition.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the terms hereof.
"Interest Payment Date," when used with respect to any
Security, means the stated maturity of an installment of interest specified in
such Security.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance, loan
or other extension of credit (including by means of a guarantee) 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
acquisition,
-12-
by purchase or otherwise, of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities or other evidence of beneficial
interest of any Person. Investments shall exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices. In
addition to the foregoing, any foreign exchange contract, currency swap,
Interest Rate Agreement or similar agreement shall constitute an Investment.
"Issue Date" means the date the Securities are first issued by
the Company and authenticated by the Trustee under this Indenture.
"legal defeasance" has the meaning provided in Section 8.2.
"Legal Holiday" means any day other than a Business Day.
"Leverage Ratio" means the ratio of (i) the sum of the
aggregate outstanding amount of Indebtedness of the Company and its 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 its Subsidiaries (including any Person who becomes a
Subsidiary of the Company 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) 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
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Obligation, conditional sales, or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity Date" means, with respect to any Security, the date
specified in such Security as the fixed date on which principal of such Security
is due and payable.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"New Credit Facility" means that certain Credit Agreement,
dated as of , 1997 by and among the Company, the Guarantors, Chase Manhattan
Bank, as agent and as a lender, and certain banks, financial institutions and
other entities, as lenders, including any related notes, letters of credit
issued thereunder, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, restated,
modified, renewed, refunded, increased, replaced or refinanced, in whole or in
part, from time to time, whether or not with the same lenders or agents.
"Non-Payment Event of Default" means any event (other than a
Payment Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means Chairman of the Board and the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary, of the Company or any Guarantor, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, 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 the Indenture.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee, which may include
-14-
an individual employed as counsel to the Company or a Guarantor.
"Other Pari Passu Debt" means Indebtedness of the Company or
any Guarantor that neither constitutes Senior Indebtedness nor Guarantor Senior
Indebtedness, as applicable, nor Subordinated Indebtedness.
"Other Pari Passu Debt Pro Rata Share" means the amount of the
applicable Available Asset Sale Proceeds obtained by multiplying the amount of
such Available Asset Sale Proceeds by a fraction, (i) the numerator of which is
the aggregate accreted value and/or principal amount, as the case may be, of all
Other Pari Passu Debt outstanding at the time of the applicable Asset Sale with
respect to which the Company is required to use Available Asset Sale Proceeds to
repay or make an offer to purchase or repay and (ii) the denominator of which is
the sum of (a) the aggregate principal amount of all Securities outstanding at
the time of the applicable Asset Sale and (b) the aggregate principal amount or
the aggregate accreted value, as the case may be, of all Other Pari Passu Debt
outstanding at the time of the applicable Asset Sale Offer with respect to which
the Company is required to use the applicable Available Asset Sale Proceeds to
offer to repay or make an offer to purchase or repay.
"Paying Agent" has the meaning provided in Section 2.3.
"Payment Default" means any default, whether or not any
requirement for the giving of notice, the lapse of time or both, or any other
condition to such default becoming an event of default has occurred, in the
payment of principal of (or premium, if any) or interest on or any other amount
payable in connection with Designated Senior Indebtedness.
"Permitted Asset Swap" means the exchange of any interest of
the Company or any of its 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 Subsidiary; provided that (i) the aggregate Fair Market
--------
Value of the Advertising Display or Displays being transferred by the Company or
such Subsidiary is not greater than the aggregate Fair Market Value of the
Advertising Display or Displays received by the Company or such Subsidiary in
such exchange, or (ii) if the aggregate Fair Market Value of the Advertising
Display or Displays being transferred by the Company or such Subsidiary is
greater than the aggregate Fair Market
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Value of the Advertising Display or Displays received by the Company or such
Subsidiary in such exchange, so long as the Company or such Subsidiary receives
cash or other property with a Fair Market Value equal to the difference between
the Fair Market Value of the Advertising Display or Displays being transferred
by the Company or such Subsidiary and the Fair Market Value of the Advertising
Display or Displays received by the Company or such Subsidiary in such exchange,
the transaction shall be bifurcated and treated as a "Permitted Asset Swap" to
the extent of the Fair Market Value of the Advertising Display or Displays
received by the Company or such Subsidiary in such exchange, and as an "Asset
Sale" to the extent of the difference between the Fair Market Value of the
Advertising Display or Displays being transferred by the Company or such
Subsidiary and the Fair Market Value of the Advertising Display or Displays
received by the Company or such Subsidiary in such exchange.
"Permitted Indebtedness" means each of the following: (i)
Indebtedness of the Company, as borrower, and/or any Guarantor, as guarantor,
under the New Credit Facility in an amount not to exceed $200,000,000, less the
aggregate amount of all principal repayments thereunder (to the extent, in the
case of payments of revolving credit Indebtedness, that the corresponding
commitments have been permanently reduced) or scheduled payments actually made
thereunder; (ii) Indebtedness under the Securities and the Guarantees; (iii) (i)
Indebtedness of any Subsidiary of the Company owed to and held by the Company or
a Subsidiary of the Company and (ii) Indebtedness of the Company owed to and
held by any Subsidiary of the Company; provided that an incurrence of
--------
Indebtedness shall be deemed to have occurred upon (x) any sale or other
disposition (excluding assignments as security to financial institutions) of any
Indebtedness of the Company or a Subsidiary of the Company referred to in this
clause (iii) to a Person (other than the Company or a Subsidiary of the Company)
or (y) any sole or other disposition of Capital Stock of a Subsidiary of the
Company which holds Indebtedness of the Company or another Subsidiary of the
Company such that such Subsidiary, in any such case, ceases to be a Subsidiary
of the Company; (iv) (i) Interest Rate Agreements of the Company and/or any
Subsidiary of the Company relating to Indebtedness of the Company and/or such
Subsidiary, as the case may be (which Indebtedness (x) bears interest at
fluctuating interest rates and (y) is otherwise permitted to be incurred under
Section 4.8), and/or (ii) Indebtedness (which Indebtedness would bear interest
at fluctuating interest rates) for which a lender has provided a commitment
(subject to customary conditions) in an amount reasonably
-16-
anticipated to be incurred by the Company and/or a Subsidiary of the Company in
the following 12 months after such Interest Rate Agreement has been incurred,
but only to the extent, in the case of either subclause (i) or (ii), that the
notional principal amount of such Interest Rate Agreements does not exceed the
principal amount of the Indebtedness (and/or Indebtedness subject to
commitments) to which such Interest Rate Agreements relate; (v) Purchase Money
Indebtedness and Capitalized Lease Obligations of the Company and/or any
Subsidiary of the Company incurred to acquire property in the ordinary course of
business, which Purchase Money Indebtedness and Capitalized Lease Obligations do
not in the aggregate exceed 5% of the Company's consolidated total assets; (vi)
Indebtedness ("Refinancing Indebtedness") of the Company and/or any Subsidiary
of the Company to the extent it represents a replacement, renewal, refinancing
or extension (a "Refinancing") of outstanding Indebtedness of the Company and/or
of any Subsidiary of the Company incurred or outstanding pursuant to clause (ii)
or (vii) of this definition or the proviso to Section 4.8, provided that (1)
--------
Indebtedness of the Company may not be Refinanced to such extent under this
clause (vi) with Indebtedness of any Subsidiary of the Company and (2) any such
Refinancing shall only be permitted under this clause (vi) to the extent that
(x) it does not result in a lower Average Life to Stated Maturity of such
Indebtedness as compared with the Indebtedness being Refinanced and (y) it does
not exceed the sum of the principal amount (or, if such Indebtedness provides
for a lesser amount to be due and payable upon a declaration of acceleration
thereof, an amount no greater than such lesser amount) of the Indebtedness being
Refinanced plus the amount of accrued interest thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such
Refinancing and such reasonable fees and expenses incurred in connection
therewith; and (vii) in addition to the items referred to above, Indebtedness of
the Company and/or any Subsidiary of the Company having an aggregate principal
amount not to exceed $25,000,000 at any time outstanding.
"Permitted Investments" means (i) Investments in any of the
Securities; (ii) Investments in Cash Equivalents; (iii) Investments by the
Company or any of its Subsidiaries in a Subsidiary of the Company or another
Person, if as a result of such Investment (a) such other Person becomes a
Subsidiary of the Company or (b) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all of its assets to,
the Company or a Subsidiary of the Company; (iv) Investments received in
connection with the bankruptcy or reorganization of suppliers and customers and
in settlement of
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delinquent obligations of, and other disputes with, customers and suppliers, in
each case arising in the ordinary course of business; (v) Investments in
Interest Rate Agreements permitted by Section 4.8; and (vi) loans or advances to
officers or employees of the Company and its Subsidiaries in the ordinary course
of business for bona fide business purposes of the Company and its Subsidiaries
(including travel and moving expenses) not in excess of $1,000,000 in the
aggregate at any one time outstanding.
"Permitted Junior Securities" means unsecured equity
---------
securities or subordinated securities of an issuer as reorganized or readjusted
or securities of the Company or any other company, trust, corporation or
partnership provided for by a plan of reorganization or readjustment that, in
the case of any such subordinated securities as junior or the payment of which
is otherwise subordinated, at least to the extent provided in this Indenture
with respect to the Securities, to the payment and satisfaction in full in cash
of all Senior Indebtedness of the Company at the time outstanding, and to the
payment of all securities issued in exchange therefor, to the holders of the
Senior Indebtedness at the time outstanding and that has no shorter a maturity
than the Securities.
"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, that 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.
"principal" of a debt security (including the Securities)
means the principal amount of the security plus, when appropriate, the premium,
if any, on the security. Such amount shall, if applicable, be calculated by
reference to the last sentence of "Indebtedness."
"Public Equity Offering" means a public offering by the
Company of shares of its common stock on a primary basis pursuant to a
registration statement filed and declared effective pursuant to the Securities
Act for gross proceeds of not less than $20,000,000 in cash.
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"Purchase Money Indebtedness" means any Indebtedness incurred
in the ordinary course of business by a Person to finance the cost (including
the cost of construction) of an item of 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" means, with respect to any Security, the
date on which such Security is to be redeemed by the Company pursuant to the
terms of the Securities.
"Registrar" has the meaning provided in Section 2.3.
"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 of its Subsidiaries or any payment made to
the direct or indirect holders (in their capacities as such) of Capital Stock of
the Company or any of its Subsidiaries (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 Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Wholly Owned
Subsidiary or dividends or distributions made on a pro rata basis to all holders
of Capital Stock of a Restricted Subsidiary), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Company or
any of its Subsidiaries (other than Capital Stock owned by the Company or a
Subsidiary of the Company), (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 Subordinated Indebtedness other than Subordinated
Indebtedness acquired in anticipation of satisfying a scheduled sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition) and (iv) the making of any Investment in any
Person other than a Permitted Investment.
"S&P" means Standard & Poor's Corporation.
"Securities" means the [ ]% Senior Subordinated Notes
Due 2007 issued, authenticated and delivered under this Indenture, as amended or
supplemented from time to time pursuant to the terms of this Indenture.
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"Securities Act" means the Securities Act of 1933, as amended.
"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 of
the Company owed to lenders under the New Credit Facility, (b) all obligations
of the Company with respect to any Interest Rate Agreement, (c) all obligations
of the Company to reimburse any bank or other person in respect of amounts paid
under letters of credit, acceptances or other similar instruments, (d) all other
Indebtedness of the Company that does not provide that it is to rank pari passu
with or subordinate to the Securities 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, (ii) Indebtedness represented by the
Securities, (iii) any Indebtedness which provides that it is subordinated or
junior in right of payment to any other Indebtedness of the Company, or (iv) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business or any obligation that is by
operation of law or judicial decision subordinate to any general unsecured
obligations of the Company or (v) Indebtedness of the Company to the extent that
such Indebtedness is owed to and held by Federal, State, local or other
governmental authority.
"Significant Subsidiary" means any Subsidiary of the Company
that would be a "significant subsidiary" as defined in Article I, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"Subordinated Indebtedness" means with respect to the Company,
Indebtedness of the Company that is expressly subordinated in right of payment
to the Securities or, with respect to any Guarantor, Indebtedness of such
Guarantor that is expressly subordinated in right of payment to the Guarantee of
such Guarantor.
-20-
"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 by such first-named 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 first-named
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 the first-named Person for
financial statement purposes.
"Surviving Entity" has the meaning provided in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
(S)(S) 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trust Officer" means an officer or assistant officer of the
Trustee assigned to the corporate trustee department (or any successor group) of
the Trustee, or any successor to such department or, in the case of a successor
trustee, an officer or assistant officer assigned to the department, division or
group performing the corporate trust work of such successor.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"U.S. Government Obligations" has the meaning provided in
Section 8.2(d).
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"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.
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"Wholly Owned Subsidiary" means any Subsidiary of the Company,
all of the outstanding voting securities (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company.
SECTION 1.2. Incorporation by Reference of Trust Indenture
Act.
---------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "indenture securities" means the Securities;
(b) "indenture security holder" means a Holder or
Securityholder;
(c) "indenture to be qualified" means this Indenture;
(d) "indenture trustee" or "institutional trustee"
means the Trustee; and
(e) "obligor" on the indenture securities means the
Company, each Guarantor or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings so assigned to them
therein.
SECTION 1.3. Rules of Construction.
---------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words
in the plural include the singular;
(d) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other Subsection; and
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(e) unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in
accordance with GAAP.
ARTICLE II
THE SECURITIES
--------------
SECTION 2.1. Form and Dating.
---------------
The Securities and the Trustee's certificates of
authentication with respect thereto shall be substantially in the form set forth
in Exhibit A, which is annexed hereto and hereby incorporated in and expressly
made a part of this Indenture. The Securities may have notations, legends or
endorsements (including notations relating to any Guarantee) required by law,
rule or usage to which the Company or any Guarantor is subject. Each Security
shall be dated the date of its authentication. The terms and provisions
contained in the Securities shall constitute, and are expressly made, a part of
this Indenture.
SECTION 2.2. Execution and Authentication.
----------------------------
Two Officers (each of whom shall have been duly authorized by
all requisite partnership or corporate action, as the case may be) shall execute
the Securities on behalf of the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security or at any time
thereafter, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Security.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
in an aggregate principal amount not to exceed $125,000,000 upon receipt of the
Officers' Certificate of the Company signed by two Officers of the Company
directing the Trustee to authenticate the Securities and certifying that all
conditions precedent to the issuance of the Securities con-
-23-
tained herein have been complied with. The aggregate principal amount of
Securities outstanding at any time may not exceed $125,000,000, except as
provided in Section 2.8.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent shall
have the same rights as the Trustee in any dealings hereunder with the Company
or with any of the Company's Affiliates.
The Securities shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 principal amount and any
integral multiple thereof.
SECTION 2.3. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where (a) Securities may be presented for registration of transfer or for
exchange (the "Registrar"), (b) Securities may be presented for payment (the
"Paying Agent") and (c) notices and demands to or upon the Company and any
Guarantor in respect of the Securities, the Guarantees and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent. Neither the Company nor any Affiliate thereof may act as Paying
Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture that shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee located at the
address set forth in Section 12.2 as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Securities, the Guarantees
and this Indenture.
-24-
SECTION 2.4. Paying Agent To Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company or any other obligor on the Securities), and the
Company and the Paying Agent shall notify the Trustee of any default by the
Company (or any other obligor on the Securities) in making any such payment.
Money held in trust by the Paying Agent need not be segregated except as
required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.1(a)(i) or (ii), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.5. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five Business Days before each
Interest Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Securities, if any.
SECTION 2.6. Transfer and Exchange.
---------------------
(a) When Securities are presented to the Registrar or a co-
registrar with a request from the Holder of such Securities to register a
transfer, the Registrar shall register the transfer as requested. Every Security
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or
-25-
denominations, of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at the office or agency maintained for such purpose
pursuant to Section 2.3.
To permit registrations of transfers and exchanges, the
Company shall issue and execute and the Trustee shall authenticate new
Securities evidencing such transfer or exchange at the Registrar's request.
SECTION 2.7. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Registrar or the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security. If required by the Trustee or the Company,
an indemnity bond shall be posted, sufficient in the judgment of each of the
Company and the Trustee to protect the Company, the Trustee or any Paying Agent
from any loss that any of them may suffer if such Security is replaced. The
Company may charge such Holder for the Company's reasonable out-of-pocket
expenses in replacing such Security and the Trustee may charge the Company for
the Trustee's expenses in replacing such Security. Every replacement Security
shall constitute an additional obligation of each of the Company.
SECTION 2.8. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for (a) those cancelled by it, (b)
those delivered to it for cancellation, (c) to the extent set forth in Sections
8.1 and 8.2, on or after the date on which the conditions set forth in Section
8.1 or 8.2 have been satisfied, those Securities theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.8
as not outstanding. Subject to Section 2.9, a Security does not cease to be
outstanding because the Company or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee receives an Officer's Certificate stating
that the replaced Security is held by a bona fide purchaser in whose hands such
Security is a legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money
-26-
sufficient to pay all accrued interest and principal with respect to such
Securities 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 Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Treasury Securities.
-------------------
In determining whether the Holders of the required principal
amount of Securities have concurred in any declaration of acceleration or notice
of default or direction, waiver or consent or any amendment, modification or
other change to this Indenture, Securities owned by the Company or an Affiliate
of the Company shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Securities that the Trustee actually
knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are prepared and ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as definitive
Securities.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment or purchase. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation or purchase and return such Securities to the Company. The Company
may not reissue or resell, or issue new Securities to replace, Securities that
the Company has redeemed or paid or purchased, or that have been delivered to
the Trustee for cancellation.
-27-
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults on a payment of interest on the
Securities, they shall pay the defaulted interest, plus (to the extent permitted
by law) any interest payable on the defaulted interest, in accordance with the
terms hereof, to the Persons who are Holders of Securities on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Company shall fix such special record date and payment
date in a manner satisfactory to the Trustee. At least 15 days before such
special record date, the Company shall mail to each Holder of Securities 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 2.13. CUSIP Number.
------------
The Company in issuing the Securities may use a "CUSIP"
number, and if so, such CUSIP number shall be included 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 or accuracy of the CUSIP
number printed in the notice or on the Securities and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Company will promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Moneys.
-----------------
On each Interest Payment Date and Maturity Date and on any
Business Day immediately following any acceleration of the Securities pursuant
to Section 6.2, 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, Maturity Date or Business Day, as the case may
be, in a timely manner that permits the Trustee to remit payment to the Holders
on such Interest Payment Date, Maturity Date or Business Day, as the case may
be.
-28-
ARTICLE III
REDEMPTION
----------
SECTION 3.1. Election To Redeem; Notices to Trustee.
--------------------------------------
If the Company elects to redeem Securities pursuant to
Paragraph 6 or 7 of the Securities, they shall notify the Trustee and the Paying
Agent in writing of the Redemption Date and the principal amount of Securities
to be redeemed.
The Company shall give each notice provided for in this
Section 3.1 at least 30 days before the Redemption Date (unless a shorter notice
shall be agreed to by the Trustee in writing), together with an Officers'
Certificate of the Company stating that such redemption will comply with the
conditions contained herein and in the Securities.
SECTION 3.2. Selection of Securities To Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not then listed on a national
securities exchange, on a pro rata basis, by lot or by such other method as the
--- ----
Trustee deems fair and appropriate; provided that any redemption pursuant to
--------
Paragraph 7 of the Securities shall be made on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to the procedures of The Depository
--- ----
Trust Company) based on the aggregate principal amount of Securities held by
each Holder. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption. The Trustee shall promptly
notify the Company in writing of such Securities selected for redemption and, in
the case of Securities selected for partial redemption, the principal amount to
be redeemed. The Trustee may select for redemption portions of the principal
amount of Securities that have denominations equal to or larger than $1,000
principal amount. Securities and portions of them the Trustee selects shall be
in amounts of $1,000 principal amount or integral multiples thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
-29-
SECTION 3.3. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause the mailing of a notice of redemption by
first-class mail to each Holder of Securities to be redeemed at such Holder's
registered address. Notice of a redemption in connection with a Public Equity
Offering shall be mailed within 60 days of the particular Public Equity
Offering. A copy of such notice shall be mailed to the Trustee on the same day
the notice is mailed to Holders of Securities.
The notice shall identify the Securities to be redeemed and
shall state:
(a) the Redemption Date;
(b) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(c) the redemption price and the amount of accrued interest,
if any, to be paid;
(d) the name and address of the Paying Agent;
(e) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price and
accrued interest, if any;
(f) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and the only remaining right
of the Holders of such Securities is to receive payment of the
redemption price upon surrender to the Paying Agent of the Securities
redeemed;
(g) if any Security is to be redeemed in part, the portion
of the principal amount (equal to $1,000 or any integral multiple
thereof) of such Security to be redeemed and that, on or after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed
portion thereof will be issued without charge to the Securityholder;
(h) if less than all of the Securities are to be redeemed,
the identification of the particular Securities (or portion thereof) to
be redeemed, as well as the aggre-
-30-
gate principal amount of Securities to be redeemed and the aggregate
principal amount of Securities to be outstanding after such partial
redemption; and
(i) the CUSIP number, if any, pursuant to Section 2.13.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.4. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date will
be payable on the relevant Interest Payment Dates to the Holders that would
otherwise have been entitled thereto pursuant to this Indenture and the
Securities.
SECTION 3.5. Deposit of Redemption Price.
---------------------------
At least one Business Day prior to the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the redemption price of and accrued interest, if any, on all Securities or
portions thereof to be redeemed on that date.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Company to deposit with the Paying Agent U.S. Legal Tender,
the principal and accrued and unpaid interest, if any, thereon shall, until paid
or duly provided for, bear interest as provided in Section 4.1 with respect to
any payment default.
SECTION 3.6. Securities Redeemed in Part.
---------------------------
Upon the surrender to the Paying Agent of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder a new Security equal in principal amount to the principal amount
of the unredeemed portion of the Security surrendered.
-31-
ARTICLE IV
COVENANTS
---------
SECTION 4.1. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture.
An installment of principal or interest shall be considered
paid on the date due if the Trustee or the Paying Agent holds on such date U.S.
Legal Tender designated for and sufficient to pay such installment.
The Company shall pay cash interest on overdue principal and
(to the extent permitted by law) on overdue installments of interest at the rate
borne by the Securities. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 4.2. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required under
Section 2.3. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
--------
manner relieve the Company of their obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the corporate trust
office of the Trustee set forth in Section 12.2 as an agency of the Company with
respect to the Securities in accordance with Section 2.3.
-32-
SECTION 4.3. Corporate Existence.
-------------------
Subject to Article V, the Company shall do or cause to be
done, at their own cost and expense, all things necessary to, and will cause
each Subsidiary to, preserve and keep in full force and effect the corporate
existence and rights (charter and statutory), licenses and/or franchises of the
Company and each Subsidiary; provided that the Company or any Subsidiaries shall
--------
be required to preserve any such rights, licenses or franchises if such rights,
licenses or franchises will be replaced or if the Board of the Company shall
reasonably determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or such Subsidiary, as the case may be,
and the loss thereof is not adverse in any material respect to the Holders;
provided, further, that any Subsidiary may be wound up and liquidated into the
-------- -------
Company or any other Subsidiary.
SECTION 4.4. 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, (a) all taxes, assessments
and governmental charges levied or imposed upon their or their Subsidiaries'
income, profits or property and (b) all lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the property of the
Company or a Subsidiary; provided that the Company shall not be required to pay
--------
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate negotiations or proceedings and for which disputed amounts
any reserves required in accordance with GAAP have been made.
SECTION 4.5. Maintenance of Properties; Insurance;
Books and Records; Compliance with Law.
--------------------------------------
(a) The Company shall, and shall cause each of the
Subsidiaries to, at all times cause all properties used or useful in the conduct
of its business to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
-33-
(b) The Company shall, and shall cause each of its
Subsidiaries to, maintain insurance (which may include self-insurance) in such
amounts and covering such risks as are usually and customarily carried with
respect to similar facilities according to their respective locations.
(c) The Company shall, and shall cause each of its
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all of its financial transactions and the
assets and business, in accordance with GAAP consistently applied.
(d) The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
financial condition of the Company and its Subsidiaries, taken as a whole.
SECTION 4.6. Compliance Certificates.
-----------------------
(a) The Company shall deliver to the Trustee, within 45 days
after the end of each of the first three quarters of the Company's fiscal year,
and within 90 days after the end of such fiscal year, an Officers' Certificate
stating (i) that a review of the activities of the Company during the preceding
fiscal quarter or year, as the case may be, has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture and (ii)
that, to the best knowledge of each Officer signing such certificate, the
Company has kept, observed, performed and fulfilled each and every covenant and
condition contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions, conditions and covenants hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such Officers may have knowledge, their
status and what action the Company is taking or proposes to take with respect
thereto).
(b) The annual financial statements delivered pursuant to
Section 4.7 shall be accompanied by a written statement of the Company's
independent public accountants that in making the examination necessary for
certification of such annual financial statements nothing as to which such
accountants have professional competence has come to their attention that would
lead them to believe that the Company has violated any provisions of this
Indenture as to which such accountants have pro-
-34-
fessional competence, 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 directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly after any Officer of the Company
becomes aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.7. Reports.
-------
Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, to the extent
permitted by the Exchange Act, the Company will file with the Commission and
provide, within 15 days after such filing, the Trustee and Holders of Securities
and prospective holders of Securities (upon request) with the annual reports and
the information, documents and other reports which are specified in Sections 13
and 15(d) of the Exchange Act. In the event that the Company is not permitted to
file such reports, documents and information with the Commission, the Company
will provide substantially similar information to the Trustee, the Holders of
Securities and the prospective holders of Securities (upon request) as if the
Company were subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act. The Company also will comply with the other provisions of TIA (S)
314(a).
SECTION 4.8. Limitation on Additional Indebtedness.
-------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness), except for Permitted Indebtedness; provided
--------
that (i) the Company will be permitted to incur Indebtedness (including Acquired
Indebtedness) and (ii) a Subsidiary of the Company will be permitted to incur
Acquired Indebtedness, if, in either case, after giving pro forma effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the Company's Leverage Ratio is less than (x) 6.50 to 1.00 if such
Indebtedness is incurred on or prior to , 2000, (y) 6.25 to 1.00 if such
Indebtedness is incurred after , 2000 and on or prior to , 2002
and (z) 6.00 to 1.00 if
-35-
such Indebtedness is incurred thereafter. Notwithstanding the foregoing,
a Guarantor will be permitted to guarantee any Indebtedness of the Company
incurred pursuant to clause (i) of the proviso of the immediately preceding
sentence.
SECTION 4.9. Limitation on Restricted Payments.
---------------------------------
The Company will not make, and will not permit any of its
Subsidiaries to make, directly or indirectly, any Restricted Payment, unless:
(a) no 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 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.8; and
(c) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date does not exceed the sum of (1) the difference
between (x) the Cumulative EBITDA and (y) 1.4 times the Cumulative
Consolidated Interest Expense, plus (2) the aggregate net cash proceeds
received by the Company either (x) as capital contributions in the form
of common equity to the Company after the Issue Date or (y) from the
issuance or sale of Capital Stock (excluding proceeds from Disqualified
Capital Stock and excluding the proceeds to the Company from the Common
Stock Offering, but including Capital Stock issued upon the conversion
of convertible Indebtedness, in exchange for outstanding Indebtedness
or from the exercise of options, warrants or rights to purchase Capital
Stock (other than Disqualified Capital Stock)) of the Company to any
person (other than to a Subsidiary of the Company) after the Issue
Date, plus (3) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after the Issue Date,
an amount equal to the lesser of the return of capital with respect to
such Investment and the initial amount of such Investment, in either
case, less the cost of the disposition of such Investment. For purposes
of the preceding subclause (2)(y), upon the issuance of Capital Stock
either from the conversion of convertible Indebtedness or exchange for
outstanding Indebtedness or upon the exercise of options, warrants
-36-
or rights, the amount counted as net cash proceeds received will be the
cash amount received by the Company at the original issuance of the
Indebtedness that is so converted or exchanged or from the issuance of
options, warrants or rights, as the case may be, plus the incremental
amount of cash received by the Company, if any, upon the conversion,
exchange or exercise thereof 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.
The provisions of this Section 4.9 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 the Indenture, (ii) the retirement of any shares of Capital Stock
of the Company or Subordinated Indebtedness by conversion into, or by or in
exchange for, shares of Capital Stock (other than Disqualified Capital Stock),
or out of, the net cash 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), (iii) the redemption or
retirement of Subordinated Indebtedness other than Disqualified Capital Stock of
the Company (including any related guarantees) in exchange for, by conversion
into, or out of the net cash proceeds of, a substantially concurrent sale or
incurrence of Subordinated Indebtedness (other than any Indebtedness owed to a
Subsidiary of the Company) of the Company (including any related guarantees)
that is contractually subordinated in right of payment to the Notes to at least
the same extent as the subordinated Indebtedness being redeemed or retired, (iv)
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 officers or employees or former officers or employees (or their
estates or beneficiaries under their estates) 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 cash
--------
consideration paid, or distributions made, pursuant to this clause (iv) do not
in any one fiscal year exceed $1,000,000, (v) Investments constituting
Restricted Payments made as a result of the receipt of non-cash consideration
from any Asset Sale made pursuant to and in compliance with Section
-37-
4.13 or (vi) any other Investments constituting Restricted Payments made after
the Issue Date in an aggregate amount not in excess of $10,000,000; provided,
--------
however, that in the case of clauses (iii), (iv), (v) and (vi), no Default shall
-------
have occurred or be continuing at the time of such payment or as a result
thereof. In determining the amount of Restricted Payments made subsequent to the
Issue Date for purposes of clause (c) of the first paragraph above, amounts
expended pursuant to clauses (i), (ii), (iv), (v) and (vi) shall be included in
such 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 4.9 were computed, which calculations may
be based upon the Company's latest available financial statements, and that no
Default exists and is continuing and no Default will occur immediately after
giving effect to any Restricted Payments.
SECTION 4.10. Limitation on Liens.
-------------------
The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien of any kind,
upon any of its property or assets, whether now owned or acquired after the
Issue Date, or any proceeds therefrom, that secure either (i) Subordinated
Indebtedness unless the Securities and the Guarantees, as applicable, are
secured by a Lien on such property, assets or proceeds that is senior in
priority to the Liens securing such Subordinated Indebtedness or (ii)
Indebtedness that is pari passu with the Securities unless the Securities and
---- -----
the Guarantees, as applicable, are equally and ratably secured with the Liens
securing such Indebtedness.
SECTION 4.11. Limitation on Guarantees of Certain
Indebtedness.
-----------------------------------
The Company will not permit any of its Subsidiaries (other
than the Guarantors) to (a) guarantee any Indebtedness of the Company (other
than Indebtedness incurred under clause (vii) of Permitted Indebtedness) or (b)
pledge any intercompany notes representing obligations of any of its
Subsidiaries (other than the Guarantors) to secure the payment of any
Indebtedness of the Company (other than Indebtedness incurred under clause (vii)
of Permitted Indebtedness), in each case unless such Subsidiary, the Company,
the other Guarantors and
-38-
the Trustee execute and deliver a supplemental indenture evidencing such
Subsidiary's Guarantee under this Indenture. Thereafter, such Subsidiary shall
be a Guarantor for all purposes of this Indenture.
SECTION 4.12. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
-----------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any of its Subsidiaries to (a) pay dividends or make any other
distributions to the Company or any of its Subsidiaries on its Capital Stock,
(b) pay any Indebtedness owed to the Company or any of its Subsidiaries, (c)
make loans or advances to the Company or any Subsidiary, (d) transfer any of its
properties or assets to the Company or any Subsidiary, (e) grant liens or
security interests on the assets of the Company or any of its Subsidiaries in
favor of the holders of the Notes or (f) guarantee the Notes or any renewals or
refinancings thereof, except for (i) such encumbrances or restrictions arising
by reason of Acquired Indebtedness of any of the Company's Subsidiaries existing
at the time such Person became a Subsidiary of the Company; provided that such
--------
encumbrances or restrictions were not created in anticipation of such Person
becoming a Subsidiary and are not applicable to the Company or any of its other
Subsidiaries, (ii) such encumbrances or restrictions 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, (iii) customary provisions restricting the assignment of any
contract or interest of the Company or any of its Subsidiaries, (iv)
restrictions under the New Credit Facility no more restrictive than those in
effect on the Issue Date and (v) restrictions contained in this Indenture or
any other indenture governing debt securities that is no more restrictive than
the restrictions contained in this Indenture.
SECTION 4.13. Asset Sales.
-----------
The Company will not, and will not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
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
-39-
board resolution); (ii) not less than 75% of the consideration received by the
Company or such Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided that the Company or such 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 Subsidiary are
applied (a) first, to the extent the Company elects, or is required, to prepay,
repay or purchase debt under any then existing Senior Indebtedness of the
Company or any Guarantor Senior Indebtedness of any Guarantor that is a
Subsidiary of the Company within 180 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 its 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, (1) to the repayment of an amount of
Other Pari Passu Debt not exceeding the Other Pari Passu Debt Pro Rata Share
(provided that any such repayment shall result in permanent reduction of any
--------
commitment in respect thereof in an amount equal to the principal amount so
repaid) and (2) if on the Reinvestment Date with respect to any Asset Sale the
Excess Proceeds exceed $10.0 million, the Company shall apply an amount equal to
such Excess Proceeds to an offer to repurchase the Securities, 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").
If an Excess Proceeds Offer is not fully subscribed, the Company may retain the
portion of the Excess Proceeds not required to repurchase Securities.
SECTION 4.14. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not permit any of its
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 or
-40-
holder of 10% or more of the Common Stock of the Company or any Affiliate (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 (i) such Affiliate Transaction is between or among the
Company and/or Wholly Owned Subsidiaries or (ii) the terms of such Affiliate
Transaction are fair and reasonable to the Company or such Subsidiary, as the
case may be, and the terms of such Affiliate Transaction are at least as
favorable as the terms that could be obtained by the Company or such 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 $1.0 million that is not permitted under clause
(i) above, the Company must obtain a resolution of the board of directors
approved by a majority of the members of the board of directors (and a majority
of the independent directors) of the Company certifying that such Affiliate
Transaction complies with clause (ii) above. In transactions with a value in
excess of $5.0 million that are not permitted under clause (i) above, the
Company must obtain a written opinion as to the fairness of such a transaction
to the Company or its Subsidiary from an independent investment banking firm of
nationally recognized standing.
The foregoing provisions will not apply to (i) any dividend
that is not prohibited by the provisions described in Section 4.9 contained
herein, (ii) any transaction, approved by the board of directors of the Company,
with an officer or director of the Company or of any Subsidiary of the Company
in his or her capacity as officer or director entered into in the ordinary
course of business, including compensation and employee benefit arrangements
with any officer or director of the Company or of any of its Subsidiaries that
are customary for public companies in the outdoor advertising industry or (iii)
transactions with The Chase Manhattan Bank or any of its Affiliates in the
ordinary course of providing banking, financial advisory, securities or other
financial services.
SECTION 4.15. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Company shall notify
the holders of the Securities, in the manner prescribed by this Indenture, of
such occurrence and shall make an offer to purchase (a "Change of Control
Offer"), on a Business Day (the "Change of Control Payment Date") not later than
30 days following the Change of Control Date, all
-41-
Securities then outstanding at a purchase price equal to 101% of the principal
amount of the Securities, plus accrued and unpaid interest, if any, thereon to
the Change of Control Payment Date. The Change of Control Offer shall remain
open for at least 20 Business Days or such longer period as may be required by
law and until the close of business on the Change of Control Payment Date. The
Company's obligations under this Section 4.15 may be satisfied if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements applicable to a Change of Control Offer made by
the Company and purchases all Securities validly tendered and not withdrawn
under such Change of Control Offer.
(b) Not less than 30 days nor more than 60 days before the
Change of Control Payment Date, the Company shall send, by first class mail, a
notice to each Holder of Securities, with a copy to the Trustee and the Paying
Agent. 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 a Change of Control Offer is being made pursuant
to this Section 4.15 and that all Securities tendered will be accepted
for payment;
(ii) the purchase price (including the amount of accrued
interest, if any) for each Security and the Change of Control Payment
Date;
(iii) that any Security not tendered for payment will
continue to accrue interest in accordance with the terms thereof;
(iv) that, unless the Company defaults on making the payment,
any Security accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control
Payment Date;
(v) that Holders accepting the offer to have their
Securities purchased pursuant to a Change of Control Offer will be
required to surrender their Securities to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day preceding the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the close of
business on the third Business Day preceding
-42-
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Securities the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Securities purchased;
(vii) that Holders whose Securities are purchased only in part
will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered, provided that each
Security purchased and each such new Security issued shall be in an
original principal amount in denominations of $1,000 and integral
multiples thereof;
(viii) any other procedures that a Holder must follow to accept
a Change of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent U.S. Legal Tender sufficient to pay the purchase price of all Securities
or portions thereof so tendered and accepted and (iii) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officers'
Certificate of the Company setting forth the Securities or portions thereof
tendered to and accepted for payment by the Company. The Paying Agent shall
promptly (but in any case no later than 10 calendar days after the Change of
Control Payment Date) mail or deliver to the Holders of Securities so accepted
payment in an amount equal to the purchase price for such Securities, and the
Company shall execute and issue, and the Trustee shall promptly authenticate and
mail to such Holders, a new Security equal in principal amount to any
unpurchased portion of the Security surrendered; provided that each such new
--------
Security shall be issued in an original principal amount in denominations of
$1,000 and integral multiples thereof. The Company will send to the Trustee and
the Holders of Securities on or as soon as practicable after the Change of
Control Payment a notice setting forth the results of the Change of Control
Offer. Any Securities not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof.
-43-
For purposes of this Section 4.15, the Trustee shall act as
Paying Agent.
In connection with the purchase of Securities pursuant to a
Change of Control Offer, the Company shall comply with all applicable tender
offer laws and regulations, including, to the extent applicable, Section 14(e)
and Rule 14(e)-1 under the Exchange Act, and any other applicable Federal or
state securities laws and regulations and any applicable requirements of any
securities exchange on which the Securities are listed.
SECTION 4.16. Limitation on Issuance and Sales of
Preferred Stock by Subsidiaries.
-----------------------------------
The Company (i) will not permit any of its Subsidiaries to
issue any Preferred Stock (other than to the Company or a Wholly Owned
Subsidiary) and (ii) will not permit any person (other than the Company or a
Wholly Owned Subsidiary) to own any Preferred Stock of any Subsidiary.
SECTION 4.17. Limitation on Activities of the Company
and Its Subsidiaries.
---------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, engage in any business other than the business of outdoor
advertising or a substantially similar or related business.
SECTION 4.18. Limitation on Other Senior Subordinated Debt.
--------------------------------------------
The Company will not, and will not permit any of the
Guarantors to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (other than the Securities and the Guarantees, as the case may be)
that is both (i) subordinate in right of payment to any Indebtedness of the
Company or any Guarantor, as the case may be, and (ii) senior in right of
payment to the Securities or any of the Guarantees, as the case may be. In
addition, the Company will not permit any of the Guarantors to, directly or
indirectly, incur, contingently or otherwise, any guarantee on a senior basis
any Indebtedness of the Company that is subordinate in right of payment to any
other Indebtedness of the Company.
-44-
SECTION 4.19. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants, and each Guarantor shall be deemed to
covenant (to the extent permitted by law), that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law that would prohibit
or forgive the Company or such Guarantor, as the case may be, from paying all or
any portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
permitted by law) the Company hereby expressly waives and each Guarantor shall
be deemed to expressly waive, all benefit or advantage of any such law, and
covenants, and each Guarantor shall be deemed to covenant, that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE V
SUCCESSOR CORPORATION
---------------------
SECTION 5.1. Consolidation, Merger, Sale of Assets, Etc.
------------------------------------------
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 to, any Person or Persons, and the Company
will not permit any of its Subsidiaries to enter into any such transaction or
series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the properties and assets of
the Company and its Subsidiaries, taken as a whole, to any other Person or
Persons, unless:
(i) either (a) (1) if the transaction or transactions is a
merger or consolidation involving the Company, the Company shall be the
surviving Person of such merger or consolidation, or (2) if the
transaction or transactions is a merger or consolidation involving a
Subsidiary of the Company, such Subsidiary shall be the surviving
Person of such merger or consolidation and such surviving
-45-
Person shall be a Subsidiary of the Company, or (b) (1) the Person
formed by any such consolidation or into which the Company or such
Subsidiary is merged or to which the properties and assets of the
Company and/or such Subsidiary, as the case may be, are transferred
(any such surviving Person or transferee Person being a "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 (2)(A) in the case of a transaction involving the Company,
the Surviving Entity shall expressly assume by a supplemental indenture
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Securities and
this Indenture, and, in each case, this Indenture shall remain in full
force and effect, or (B) in the case of a transaction involving a
Subsidiary that is a Guarantor, the Surviving Entity shall expressly
assume by a supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
such Subsidiary under its Guarantee and related supplemental indenture,
and, in each case, such Guarantee and supplemental indenture shall
remain in full force and effect;
(ii) immediately after giving effect to such related
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 shall have occurred and be continuing;
(iii) 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), the Company or the Surviving Entity, as the case may be,
could incur $1.00 of additional Indebtedness pursuant to the proviso to
the first paragraph of clause (a) of Section 4.8; and
(iv) 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, transfer, lease, assignment or
other disposition and the supplemental indenture in respect thereof
comply with the requirements of this Indenture.
-46-
Each Guarantor, unless it is the other party to the
transaction or unless its Guarantee will be released and discharged in
accordance with its terms as a result of the transaction, will be required to
confirm, by supplemental indenture, that its Guarantee will continue to apply to
the obligations of the Company or the Surviving Entity under this Indenture.
SECTION 5.2. Successor Entity Substituted.
----------------------------
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing
in which the Company or any Subsidiary of the Company, as the case may be, is
not the continuing corporation, the successor corporation formed by such a
consolidation or into which the Company or such Subsidiary is merged or to which
such transfer is made will succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Subsidiary, as the case may be,
under this Indenture with the same effect as if such successor corporation had
been named as the Company or such Subsidiary herein; and thereafter, except in
the case of (i) a lease or (ii) any sale, assignment, conveyance, transfer,
lease or other disposition to a Subsidiary of the Company, the Company or such
Guarantor, as the case may be, shall be discharged from all obligations and
covenants under this Indenture and the Securities; provided that, solely
--------
for purposes of computing Cumulative EBITDA for purposes of Section 4.9, the
Cumulative EBITDA of any Persons other than the Company and its Subsidiaries
shall only be included for periods subsequent to the effective time of such
merger, consolidation, combination or transfer of assets.
SECTION 5.3. Status of Subsidiaries.
----------------------
For all purposes of this Indenture and the Securities
(including the provisions of this Article V and Sections 4.8, 4.9 and 4.10),
Subsidiaries of any Surviving Entity will, upon such transaction or series of
related transactions, become Subsidiaries of the Company and all Indebtedness,
and all Liens on property or assets, of the Company and the Subsidiaries in
existence immediately prior to such transaction or series of related
transactions will be deemed to have been incurred upon such transaction or
series of related transactions.
-47-
ARTICLE VI
DEFAULT AND REMEDIES
--------------------
SECTION 6.1. Events of Default.
-----------------
(a) An "Event of Default" occurs if:
(i) there is a default in the payment of the principal of or
premium, if any, when due or payable, on any of the Securities; or
(ii) there is a default in the payment of an installment
of interest on the Securities when due and payable for 30 days; or
(iii) the Company or any Guarantor fails to comply with any
of its obligations described in Section 4.13 or 5.1; or
(iv) the Company or any Guarantor fails to perform or observe
any other term, covenant or agreement contained in the Securities, the
Guarantees or this Indenture (other than those specified in clause (i),
(ii) or (iii) above) for a period of 30 days after written notice of
such failure requiring the Company to remedy the same shall have been
given to the Company by the Trustee or to the Company and the Trustee
by the Holders of 25% in aggregate principal amount of the Securities
then outstanding; or
(v) default or defaults under any agreement, indenture or
instrument under which the Company or any Subsidiary of the Company
then has outstanding Indebtedness in excess of $10.0 million in the
aggregate, and either (a) such Indebtedness is already due and payable
in full by its terms or (b) such default or defaults have resulted in
the acceleration of the maturity of such Indebtedness; or
(vi) any Guarantee ceases to be in full force and effect or
is declared null and void or a Guarantor denies that it has any further
liability under its Guarantee or gives notice to such effect (other
than by reason of the termination of this Indenture or the release of
any such Guarantee in accordance with Section 4.11); or
(vii) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent
-48-
jurisdiction for the payment of money in excess of $10.0 million,
either individually or in the aggregate, shall be entered against the
Company or any of its Subsidiaries or any of their respective
properties and shall not be discharged and either (a) any creditor
shall have commenced an enforcement proceeding upon such judgment,
order or decree or (b) there shall have been a period of 60 days during
which a stay of enforcement of such judgment, order or decree, by
reason of pending appeal or otherwise, will not be in effect; or
(viii) the Company, any Guarantor or any Subsidiary (a) admits
in writing its inability to pay its debts generally as they become due,
(b) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (c) consents to the entry of a judgment, decree
or order for relief against it in an involuntary case or proceeding
under any Bankruptcy Law, (d) consents to the appointment of a
Custodian (as defined below) of it or for substantially all of its
property, (e) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, (f) makes a general
assignment for the benefit of its creditors or (g) takes any corporate
action to authorize or effect any of the foregoing; or
(ix) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company, any Guarantor or
any Subsidiary in an involuntary case or proceeding under any
Bankruptcy Law, which shall (a) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or composition in
respect of the Company, any Guarantor or any Subsidiary, (b) appoint a
Custodian of the Company, a Guarantor or any Subsidiary or for
substantially all of any of their property or (c) order the winding-up
or liquidation of its affairs; and such judgment, decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(x) either (a) the collateral agent under the New Credit
Facility or (b) if the New Credit Facility shall no longer be in force
and effect, any holder of at least $10 million in aggregate principal
amount of Indebtedness of the Company or any Guarantor shall commence
judicial proceedings to foreclose upon assets of the Company or any of
its Subsidiaries having an aggregate Fair Market Value, individually or
in the aggregate, in excess of $10 million or shall have exercised any
right under applicable law or
-49-
applicable security documents to take ownership of any such assets in
lieu of foreclosure.
(b) For purposes of this Article VI, the term "Custodian"
means any receiver, interim receiver, receiver and manager, trustee, assignee,
liquidator, sequestrator or similar official charged with maintaining possession
or control over property for one or more creditors, whether under any Bankruptcy
Law or otherwise.
SECTION 6.2. Acceleration.
------------
If an Event of Default (other than an Event of Default
specified in Section 6.1(a)(viii) or (ix) with respect to the Company) occurs
and is continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities then outstanding may declare to be
immediately due and payable the Default Amount. Upon any such declaration such
amounts shall become due and payable immediately. If an Event of Default
specified in Section 6.1(a)(viii) or (ix) occurs and is continuing with respect
to the Company, then the Default Amount shall ipso facto become and be
---- -----
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder; provided, however, that after such acceleration but
-------- -------
before a judgment or decree based on acceleration is obtained by the Trustee,
the Holders of a majority in aggregate principal amount of outstanding
Securities may rescind or annul such declaration of acceleration if all Events
of Default have been cured or waived, other than the non-payment of the Default
Amount and any accrued interest on the Securities that has become due solely as
a result of such acceleration and if the rescission of acceleration would not
conflict with any judgment or decree. No such rescission shall affect any
subsequent default or impair any right consequent thereto. After a declaration
of acceleration, but before a judgment or decree for payment of the money due
has been obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the outstanding Securities, by written notice to the Company
and the Trustee, may rescind such declaration if (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay (a) all sums paid or advanced
by the Trustee under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (b) all
overdue interest on all Securities, (c) the principal of and premium, if any, on
any Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, and (d)
to the extent that payment of such interest is
-50-
lawful, interest upon overdue interest at the rate borne by the Securities; and
(ii) all Defaults, other than the non-payment of principal of, premium, if any,
and interest on the Securities that have become due solely by such declaration
of acceleration, have been cured or waived.
SECTION 6.3. 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 interest on the Securities, or to enforce the
performance of any provision of the Securities, this Indenture or any Guarantee.
All rights of action and claims under this Indenture, or the
Securities or any Guarantee may be enforced by the Trustee even if the Trustee
does not possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Default.
----------------------
Subject to Sections 6.7 and 9.2, the Holders of, in the
aggregate, a majority in aggregate principal amount of the outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default specified in Section 6.1(a)(i) or
(ii) or in respect of any provision hereof that cannot be modified or amended
without the consent of the Holder so affected pursuant to Section 9.2. When a
Default or Event of Default is so waived, it shall be deemed cured and shall
cease to exist.
SECTION 6.5. Control by Majority.
-------------------
The Holders of at least a majority in principal amount of the
outstanding Securities 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 it; provided that the Trustee may refuse to follow any
--------
direction that (i) conflicts with law or this Indenture, (ii) the Trustee
determines may be unduly prejudicial to the rights of another Securityholder or
(iii) may involve the Trustee in personal liability unless the Trustee has
indemnifica-
-51-
tion satisfactory to it in its sole discretion against any loss or expense
caused by its following such direction; and provided, further, that the Trustee
-------- -------
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction.
SECTION 6.6. Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to
this Indenture, the Securities or any Guarantee unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
a remedy;
(c) such Holder or Holders offer and, if requested, provide
to the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested,
provision of indemnity; and
(e) during such 30-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee
a direction inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted
by a Holder for the enforcement of the payment of the Default Amount, principal
of or accrued interest on the Securities on or after the respective due dates
set forth or provided for in the Securities.
A Securityholder may not use this Indenture to obtain a
preference or priority over any other Securityholder.
SECTION 6.7. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of the Default Amount, principal of and
interest on a Security, on or after
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the respective due dates expressed or provided for in the Security, 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 such Holder.
SECTION 6.8. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.1(a)(i) or (ii)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the interest rate borne by the Securities and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.9. Trustee May File Proofs of Claim.
--------------------------------
The Trustee shall be entitled and empowered to 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 Securityholders allowed in any judicial
proceedings relative to the Company or any Guarantor (or any other obligor upon
the Securities), their creditors or their 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, and any Custodian in
any such judicial proceedings is hereby authorized by each Securityholder 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 Securityholders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.7. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
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SECTION 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article VI,
it shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for interest accrued on the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for interest;
Third: to Holders for principal amounts owing under the
Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for
principal; and
Fourth: to the Company or any Guarantor, as their respective
interests may appear.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders 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 6.7 or a suit by Holders of more than 10% in
aggregate principal amount of the outstanding Securities.
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ARTICLE VII
TRUSTEE
-------
SECTION 7.1. 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 circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any
-55-
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee may refuse to perform any duty or exercise any right
or power unless it is provided adequate funds to enable it to do so and it
receives indemnity satisfactory to it in its sole discretion against any loss,
liability, fee or expense.
SECTION 7.2. Rights of Trustee.
-----------------
Subject to TIA (S)(S)315(a)-(d) and except as provided in Section 7.1:
(a) The Trustee may rely upon any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice, to examine the books, records
and premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting with respect to
any matter contemplated by this Indenture, it may require an Officers'
Certificate from the Company or an Opinion of Counsel from the Company,
that shall conform to the provisions of Section 11.5. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
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(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other
than the negligence or willful misconduct of an agent who is an employee of
the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it reasonably believes to be authorized or
within its rights or powers; provided, however, that the foregoing shall
-------- -------
apply only if the Trustee's conduct does not constitute negligence or bad
faith.
(e) 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.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless such Holder shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction.
SECTION 7.3. Individual Rights of Trustee.
----------------------------
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Securities or any
Guarantee, it shall not be accountable for the Company's use of the proceeds
from the issuance of the Securities and it shall not be responsible for any
statement of the Company in this Indenture or any document issued in connection
with the sale of Securities or any statement in the
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Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults.
------------------
If a Default or an Event of Default with respect to the Securities
occurs and is continuing and is known to the Trustee, the Trustee shall give
notice of the Default or Event of Default within 30 days after the Trustee
acquires knowledge of the occurrence thereof to all Holders as their names and
addresses appear on the Register, unless such Default shall have been cured or
waived before the mailing of such notice. Except in the case of a Default or an
Event of Default in payment of principal of or interest on any Security, the
Trustee may withhold the notice to the Securityholders if a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interest of Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
-----------------------------
To the extent required by TIA (S)313(a), within 60 days after of
each year commencing with 199 and for as long as there are Securities
outstanding hereunder, the Trustee shall mail to each Securityholder the
Trustee's brief report dated as of such date that complies with TIA (S)313(a).
The Trustee also shall comply with TIA (S)313(b) and TIA (S)313(c) and (d). A
copy of such report at the time of its mailing to Securityholders shall be filed
with the Commission, if required, and each stock exchange, if any, on which the
Securities are listed.
SECTION 7.7. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee, the Paying Agent and the
Registrar from time to time such compensation as shall be agreed to in writing
from time to time by the Trustee and the Company for their respective services
rendered hereunder. The Trustee's, the Paying Agent's and the Registrar's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee, the Paying Agent and the
Registrar upon request for all reasonable out-of-pocket disbursements, expenses
and advances (including reasonable fees and expenses of counsel) incurred or
made by each of them in addition to the compensation for their respective
services. Such expenses shall include the reasonable compensation, out-of-pocket
disbursements and expenses of the Trustee's, the Paying Agent's and the
Registrar's agents and counsel.
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The Company shall indemnify each of the Trustee, any predecessor
Trustee, the Paying Agent and the Registrar for, and hold each of them harmless
against, any claim, demand, expense (including but not limited to their
respective reasonable attorneys' fees and expenses), loss or liability,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by each of them arising out of or in connection
with the administration of this Indenture and their respective duties hereunder
or thereunder. Each of the Trustee, the Paying Agent and the Registrar shall
notify the Company promptly of any claim asserted against it for which it may
seek indemnity. However, failure by the Trustee, the Paying Agent or the
Registrar to so notify the Company shall not relieve the Company of their
obligations hereunder. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee, the Paying Agent or the
Registrar through the Trustee's, the Paying Agent's or the Registrar's, as the
case may be, own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7 and in
Section 6.9 (insofar as the Trustee is concerned), each of the Trustee, the
Paying Agent and the Registrar shall have a lien prior to the Securities on all
money or property held or collected by it, in its capacity as Trustee, Paying
Agent or Registrar, as the case may be, except money or property held in trust
to pay principal of or interest on particular Securities. Such lien shall
survive the satisfaction and discharge of this Indenture or any other
termination under the Bankruptcy Law.
Subject to any other rights available to the Trustee, the Registrar
and the Paying Agent under any Bankruptcy Law, when any of the Trustee, the
Paying Agent and the Registrar incurs expenses or renders services after an
Event of Default specified in Section 6.1(a)(ix) or (x) with respect to the
Company occurs, the parties hereto and the Securityholders, by acceptance of the
Securities, hereby agree that the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the termination of
this Indenture.
SECTION 7.8. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Company in
writing, such resignation to be effective upon
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the appointment of a successor Trustee. The Holders of a majority in principal
amount of the outstanding Securities may remove the Trustee by so notifying the
Trustee in writing and may appoint a successor Trustee with the Company's
consent, which consent shall not be unreasonably withheld. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), 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
Securityholder.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 25% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee provided such corporation shall be otherwise
qualified and eligible under this Article VII.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S)310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
(S)310(b) subject to its rights to apply for a stay of its duty to resign under
the penultimate paragraph of TIA (S)310(b). The provisions of TIA (S)310 shall
refer to the Company and any Guarantor as obligors in respect of the Securities.
SECTION 7.11. Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee shall comply with TIA (S)311(a), excluding any creditor
relationship listed in TIA (S)311(b). A Trustee who has resigned or been removed
shall be subject to TIA (S)311(a) to the extent indicated therein. The
provisions of TIA (S)311 shall refer to the Company and any Guarantor, if
applicable, as obligors in respect of the Securities.
SECTION 7.12. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 7.13. Preferred Collection of Claims.
------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the
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Trustee shall be subject to the provisions of the TIA regarding the collection
of claims against the Company (or any such other obligor).
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
----------------------------------
SECTION 8.1. Satisfaction and Discharge.
--------------------------
This Indenture will upon request of the Company cease to be of further
effect (except as to certain provisions governing registration of transfer or
exchange of the Securities and payments thereon when
(A) either (1) all Securities theretofore authenticated and delivered
(other than (i) Securities that have been destroyed, lost or stolen and
that have been replaced or paid and (ii) Securities for whose payment (x)
cash in United States dollars or (y) U.S. Government Obligations maturing
as to principal, premium, if any, and interest in such amounts of money and
at such times as are sufficient without consideration of any reinvestment
of such interest, to pay principal of and interest on the outstanding
Securities not later than one day before the past due date of any payment,
have theretofore been deposited in trust with the Trustee or any Paying
Agent) have been delivered to the Trustee for cancellation, or (2) all such
Securities not theretofore delivered to the Trustee for cancellation (i)
have become due and payable, or (ii) will become due and payable at their
stated maturity within one year, or (iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (2)(i), (2)(ii) or
(2)(iii) above, has irrevocably deposited or caused to be deposited with
the Trustee funds in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit
(in the case of Securities which have become due and payable) or the stated
maturity or Redemption Date, as the case may be, together with instructions
from the Company irrevocably directing the Trustee to apply such funds to
the payment thereof at maturity or redemption, as the case may be;
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(B) the Company has paid or caused to be paid all other sums
then due and payable hereunder by the Company; and
(C) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel that, taken together, state that all conditions
precedent herein relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 8.2. Legal Defeasance and Covenant Defeasance.
----------------------------------------
(a) The Company may, at its option and at any time, terminate
its obligations with respect to the outstanding Securities and elect to have
either paragraph (b) or paragraph (c) below be applied to the outstanding
Securities upon compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities on the date the conditions set forth 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 then outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of paragraph (e)
below and the other Sections of and matters under this Indenture referred to in
(i) and (ii) below, except for the following that shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of outstanding
Securities to receive payment in respect of the principal of, premium, if any,
and interest on such Securities when such payments are due, (but without being
subject to the subordination provisions of this Indenture) (ii) the Company's
obligations with respect to such Securities under Sections 2.2, 2.3, 2.6, 2.7,
2.8, 4.1, 4.2 and 4.19, and, with respect to the Trustee, under Sections 7.7 and
7.8, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Section 8.2 and Sections 8.3, 8.4 and 8.5. Subject to
compliance with this Section 8.2, the Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under paragraph
(c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company
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shall be released and discharged from its obligations under any covenant
contained in Article V and in Sections 4.4 through 4.18 (except for obligations
mandated by the TIA) with respect to the outstanding Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities and each Guarantee, if any, shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the outstanding Securities, the Company and any
Guarantor, if any, may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Sections 6.1(a)(iii)
or 6.1(a)(iv), but, except as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the holders of the Securities, cash in United States
Dollars, 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 is
pledged ("U.S. Government Obligations"), or a combination thereof, in such
amounts as will be sufficient to pay the principal of and interest on the
outstanding Securities to redemption or maturity (except lost, stolen or
destroyed Securities that have been replaced or paid);
(ii) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the holders of the outstanding Securities will
not recognize income, gain or loss for Federal income tax purposes as a
result of such legal defeasance or 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
-64-
case if such legal defeasance or covenant defeasance had not occurred (in
the case of legal defeasance, such opinion must refer to and be based upon
a ruling of the Internal Revenue Service or a change in applicable Federal
income tax laws);
(iii) no Default under this Indenture shall have occurred and be
continuing on the date of such deposit or at any time during the 90-day
period following such date;
(iv) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest under this Indenture or the TIA with
respect to any securities of the Company;
(v) such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any agreement or
instrument to which the Company or any of their Subsidiaries is a party or
by which it is bound; and
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel that, taken together, state that all
conditions precedent under this Indenture to either legal defeasance or
covenant defeasance, as the case may be, have been complied with and that
no violations under agreements governing any other outstanding Indebtedness
would result therefrom.
(e) All United States Dollars and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this paragraph (e), the "Trustee")
pursuant to paragraph (d) above in respect of the outstanding Securities shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal and interest received
in respect thereof other than any such tax, fee or other charge
-65-
that by law is for the account of the Holders of the outstanding Securities.
Anything in this Section 8.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
SECTION 8.3. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.1 and 8.2, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of and interest on the
Securities.
SECTION 8.4. Repayment to the Company or a Guarantor.
---------------------------------------
Subject to Sections 7.7, 8.1 and 8.2, the Trustee and the Paying Agent
shall promptly pay to the Company, or if deposited with the Trustee by any
Guarantor, to such Guarantor upon receipt by the Trustee and the Paying Agent of
Officers' Certificates stating the amount to which each of the Company or such
Guarantor, as the case may be, is entitled, any excess money, determined in
accordance with Section 8.2(e), held by it at any time. The Trustee and the
Paying Agent shall pay to the Company or such Guarantor, as the case may be,
upon receipt by the Trustee or the Paying Agent, as the case may be, of
Officers' Certificates stating the amount to which the Company or such
Guarantor, as the case may be, is entitled, any money held by it for the payment
of principal or interest that remains unclaimed for two years after payment to
the Holders is required; provided, however, that the Trustee and the Paying
-------- -------
Agent before being required to make any payment may, but need not, at the
expense of the Company, mail by first-class mail to each Holder of Securities
entitled to such money at such Holder's address as set forth on the Register
notice that such money remains unclaimed and that after a date specified
therein, which shall be at least one year from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company or such Guarantor, as the case may be. Af-
-66-
ter payment to the Company or such Guarantor, as the case may be,
Securityholders entitled to money must look solely to the Company and such
Guarantor for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
SECTION 8.5. Reinstatement.
-------------
With respect to the circumstances referred to in Section 8.1 and 8.2,
if the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Indenture 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, then and only
then the Company's and any Guarantor's (if any) obligations under this Indenture
and the Securities shall be revived and reinstated as though no deposit had been
made pursuant to this Indenture until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with this Indenture; provided, that if the Company or any such
--------
Guarantor has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company or any such
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
SECTION 9.1. Without Consent of Holders.
--------------------------
The Company, the Guarantors and the Trustee may amend, waive or
supplement this Indenture and the Securities without notice to or consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency, provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(b) to provide for uncertificated Securities in addition to
certificated Securities;
(c) to make any change that does not adversely affect the rights of
any Holder.
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SECTION 9.2. With Consent of Holders.
-----------------------
Subject to Section 6.7 and the provisions of this Section 9.2, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture
or the Securities in any respect with the written consent of the Holders of not
less than a majority in aggregate principal amount of the Securities then
outstanding. Subject to Section 6.7 and the provisions of this Section 9.2, the
Holders of, in the aggregate, at least a majority in aggregate principal amount
of the outstanding Securities affected may waive compliance by the Company or
any Guarantor with any provision of this Indenture, the Securities or any
Guarantee, as the case may be, without notice to any other Securityholder.
Notwithstanding the foregoing, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(i) reduce the amount of Securities whose holders must consent to
an amendment, supplement or waiver to this Indenture or the Securities,
(ii) reduce the rate of or change the time for payment of interest
on any Security,
(iii) reduce the principal of or premium on or change the stated
maturity of any Security,
(iv) make any Security payable in money other than that stated in
the Securities or change of place of payment from New York, New York,
(v) change the amount or time of any payment required by the
Securities or reduce the premium payable upon any redemption of Securities,
or change the time before which no such redemption may be made,
(vi) waive a default on the payment of the principal of, interest on
or redemption payment with respect to any Security,
(vii) following the occurrence of a Change of Control or an Asset
Sale, amend, alter, change or modify the obligation of the Company to make
and consummate a Change of Control Offer or make and consummate an Excess
Proceeds Offer or waive any Default in the performance of any such offer to
the extent relating to such Change of Control or
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Asset Sale or modify any of the provisions or definitions with respect to
any such offer or
(viii) take any other action otherwise prohibited by this Indenture to
be taken without the consent of each Holder affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under this Section 9.2 becomes effective,
the Company shall mail to the Holders affected thereby a notice briefly
describing the amendment or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amendment or waiver.
Promptly after the execution by the Company and any Guarantors and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section 9.2, the Trustee shall give notice thereof, at the expense of the
Company, to the Holders of then outstanding Securities, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the books of the Registrar, and such notice shall set forth in general
terms the substance of such supplemental indenture. Any failure of the Trustee
to give such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities
or any Guarantee shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Amendments and Consents.
------------------------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Any such Holder or subsequent Holder, how-
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ever, may revoke the consent as to his Security or portion of a Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. Notwithstanding the above, nothing in this paragraph shall impair the
right of any Securityholder under TIA (S)316(b).
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the second and third sentences of the immediately preceding paragraph, those
Persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders of Securities after such
record date. Such consent shall be effective only for actions taken within 90
days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder (and every subsequent Securityholder), unless it makes
a change described in any of clauses (a) through (j) of Section 9.2; if it makes
such a change, the amendment, supplement or waiver shall bind every Holder
consenting thereto and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.5. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee shall (in accordance with the specific direction of the Company)
request the Holder of the Security to deliver it to the Trustee. The Trustee
shall (in accordance with the specific direction of the Company) place an
appropriate notation on the Security 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 Security 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 Security shall not affect the validity and
effect of such amendment, supplement or waiver.
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SECTION 9.6. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment, supplement or waiver
does not adversely affect the rights, duties or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it.
ARTICLE X
SUBORDINATION OF SECURITIES AND THE GUARANTEES
----------------------------------------------
SECTION 10.1. Securities Subordinate to Senior Indebtedness
and Guarantor Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of
Securities, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article X, the
Indebtedness represented by the Securities and the Guarantees and the payment of
the principal of, premium, if any, and interest on the Securities are hereby
expressly made subordinate and subject in right of payment as provided in this
Article X to the prior payment in full in cash or Cash Equivalents or, as
acceptable to the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, in any other manner, of all Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be.
This Article X shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of or continue to
hold Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be,
and such provisions are made for the benefit of the holders of Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be, and such
holders are made obligees hereunder and they or each of them may enforce such
provisions.
-71-
SECTION 10.2. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement, reorganization or
other similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, whether voluntary or
involuntary, or (b) any liquidation, dissolution or other winding-up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of the Company (except in
connection with the merger or consolidation of the Company or its liquidation or
dissolution following the transfer of substantially all of its assets, upon the
terms and conditions permitted under the circumstances described in Section
5.1), then and in any such event:
(1) the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, will be entitled to receive payment
and satisfaction of all Obligations due or in respect of all Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be,
before the Holders of the Securities are entitled to receive or retain
any payment or distribution of any kind or character (other than a
payment or distribution made out of the Defeasance Trust) on account of
principal of, premium, if any, or interest on the Securities; and
(2) in the event that, notwithstanding the foregoing
provisions of this Section 10.2, the Trustee or the Holder of any
Security shall have received any payment or distribution of assets of
the Company of any kind, whether in cash, property or securities,
including, without limitation, by way of set-off or otherwise, in
respect of principal of, premium, if any, and interest on the
Securities before all Obligations in respect of Senior Indebtedness and
Guarantor Senior Indebtedness, as the case may be, are paid and
satisfied in full in cash, then such payment or distribution (other
than payment made out of the Defeasance Trust) will be held by the
recipient in trust for the benefit of holders of Senior Indebtedness
and Guarantor Senior In-
-72-
debtedness, as the case may be, and will be immediately paid over or
delivered to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for an application to the payment
of all Obligations with respect to Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, remaining unpaid, after giving
effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness and Guarantor Senior Indebtedness, as the case
may be.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article V hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article V hereof.
SECTION 10.3. Suspension of Payment When Senior Indebtedness
and Guarantor Senior Indebtedness, as the case
may be, in Default.
----------------------------------------------
(a) Unless Section 10.2 hereof shall be applicable, after the
occurrence of a Payment Default no payment or distribution (other than payments
made out of the Defeasance Trust) of any assets or securities of the Company or
any of its Subsidiaries of any kind or character may be made by or on behalf of
the Company, including, without limitation, by way of set-off or otherwise, for
or on account of principal of, premium, if any, or interest on the Securities or
for or on account of the purchase, redemption or other acquisition of the
Securities and the Guarantees and neither the Trustee nor any Holder or owner of
any Securities
-73-
shall take or receive from the Company or any Subsidiary of the Company,
directly or indirectly in any manner, payment in respect of all or any portion
of the Securities and the Guarantees following the delivery by the
representative of the holders of Designated Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, (the "Representative") to the Trustee
of written notice of the occurrence of a Payment Default, and in any such event,
such prohibition shall continue until such Payment Default is cured, waived in
writing or ceases to exist. At such time as the prohibition set forth in the
preceding sentence shall no longer be in effect, subject to the provisions of
the following paragraph, the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 10.2 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default in respect of Designated Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be, and upon
receipt by the Trustee and the Company from the Representative of written notice
of such occurrence, no payment or distribution (other than payments made out of
the Defeasance Trust) of any assets of the Company of any kind or character may
be made by the Company, including, without limitation, by way of set-off or
otherwise, for or on account of any principal of, premium, if any, or interest
on the Securities or on account of the purchase, redemption or other acquisition
of Securities, and neither the Trustee nor any Holder or owner of any Securities
shall take or receive from the Company, directly or indirectly in any manner,
payment in respect of all or a portion of the Securities and the Guarantees, for
a period (a "Payment Blockage Period") commencing on the date of receipt by the
Trustee of such notice, unless and until the earliest to occur of the following
events: (w) more than 179 days shall have elapsed since the receipt of such
written notice by the Trustee, (x) such Non-Payment Event of Default shall have
been cured or waived in writing or shall have ceased to exist or such Designated
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, shall
have been paid in full or (y) such Payment Blockage Period shall have been
terminated by written notice to the Company or the Trustee from the
Representative initiating such Payment Blockage Period, or the holders of at
least a majority in principal amount of such issue of Designated Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be,
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after which, in the case of clause (w), (x) or (y), the Company shall resume
making any and all required payments in respect of the Securities and the
Guarantees, including any missed payments. In no event will a Payment Blockage
Period extend beyond 179 days from the date of receipt by the Trustee of the
notice initiating such Payment Blockage Period. Only one Payment Blockage Period
may be commenced within any 365-day period. Notwithstanding any other provisions
of this Indenture, no Non-Payment Event of Default that existed or was
continuing on the date of the commencement of any Payment Blockage Period shall
be, or be made, the basis for the commencement of a second Payment Blockage
Period unless such Event of Default shall have been cured or waived for a period
of not less than 90 consecutive days. In no event shall a Payment Blockage
Period extend beyond 179 days from the date of the receipt by the Trustee of the
notice referred to in this Section 10.3(b) and there must be a 186-consecutive-
day period in any 365-consecutive-day period during which no Payment Blockage
Period is in effect.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 10.3, then and in such event such payment
shall be paid over and delivered to the Representative initiating the Payment
Blockage Period, in trust for distribution to the holders of Senior Indebtedness
and Guarantor Senior Indebtedness, as the case may be, or, if no amounts are
then due in respect of Senior Indebtedness and Guarantor Senior Indebtedness, as
the case may be, promptly returned to the Company, or otherwise as a court of
competent jurisdiction shall direct.
SECTION 10.4. Trustee's Relation to Senior Indebtedness and
Guarantor Senior Indebtedness
---------------------------------------------
With respect to the holders of Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, the Trustee undertakes to perform or to
observe only the covenants and obligations of the Trustee as are specifically
set forth in this Article X, and no implied covenants or obligations of the
Trustee with respect to the holders of Senior Indebtedness and
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Guarantor Senior Indebtedness as the case may be, shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary or other duty to the holders of Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, and the Trustee shall not be liable to
any holder of Senior Indebtedness and Guarantor Senior Indebtedness, as the case
may be, if it shall mistakenly pay over or deliver to Holders, the Company or
any other Person moneys or assets to which any holder of Senior Indebtedness and
Guarantor Senior Indebtedness, as the case may be, shall be entitled by virtue
of this Article X or otherwise.
SECTION 10.5. Subrogation to Rights of Holders of Senior
Indebtedness and Guarantor Senior
Indebtedness, as the case may be.
------------------------------------------
Upon the payment in full of all Obligations in respect of
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be,
to receive payments and distributions of cash, property and securities
applicable to the Senior Indebtedness and Guarantor Senior Indebtedness, as the
case may be, until the principal of, premium, if any and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article X, and no payments over pursuant to the provisions of
this Article 10 to the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, by Holders of the Securities or the Trustee
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and Guarantor Senior
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Indebtedness, as the case may be, and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article X shall have
been applied, pursuant to the provisions of this Article X, to the payment of
all amounts payable under the Senior Indebtedness and the Guarantor Senior
Indebtedness, as the case may be, of the Company, then and in such case the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be, at the time
outstanding any payments or distributions received by such holders of such
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, in
excess of the amount sufficient to pay all amounts payable under or in respect
of such Senior Indebtedness and Guarantor Senior Indebtedness, as the case may
be, in full in cash or Cash Equivalents.
SECTION 10.6. Provisions Solely To Define Relative Rights.
-------------------------------------------
The provisions of this Article X are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities and the Guarantees
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and Guarantor Senior Indebtedness, as the
case may be, and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company
-77-
other than the holders of Senior Indebtedness and Guarantor Senior Indebtedness,
as the case may be, or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon a
Default or an Event of Default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Company referred
to in Section 10.2 hereof, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 10.3,
to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 10.3(c) hereof.
The failure to make a payment on account of principal of,
premium, if any, or interest on the Securities by reason of any provision of
this Article X shall not be construed as preventing the occurrence of a Default
or an Event of Default hereunder.
SECTION 10.7. Trustee To Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time to
file such a claim, the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, or any Representative, may file such a claim
on behalf of Holders of the Securities.
-78-
SECTION 10.8. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be, to enforce
subordination as herein provided 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 non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.8, the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article X
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, do
any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
and Guarantor Senior Indebtedness, as the case may be, or any instrument
evidencing the same or any agreement under which Senior Indebtedness and
Guarantor Senior Indebtedness, as the case may be, is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness and Guarantor Senior Indebtedness, as the
case may be, (3) release any Person liable in any manner for the collection or
payment of Senior Indebtedness and Guarantor Senior Indebtedness, as the case
may be, and (4) exercise or refrain from exercising any rights against the
Company and any other Person; provided, however, that in no event shall any such
-------- -------
actions limit the right of the Holders of the Securities to take any action to
accelerate the maturity of the Securities and the Guarantees pursuant to Article
VI hereof or to pursue any rights or remedies hereunder or un-
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der applicable laws if the taking of such action does not otherwise violate the
terms of this Indenture.
SECTION 10.9. Notice to Trustee.
-----------------
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company that would prohibit the making of any
payment to or by the Trustee at its Corporate Trust Office in respect of the
Securities and the Guarantees. Notwithstanding the provisions of this Article X
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities and the Guarantees,
unless and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness and Guarantor Senior Indebtedness, as
the case may be, or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of this Section 10.9, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
-------- -------
notice provided for in this Section 10.09 at least five Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security), then, anything
herein contained to the contrary notwithstanding but without limiting the rights
and remedies of the holders of Senior Indebtedness and Guarantor Senior
Indebtedness, as the case may be, or any trustee, fiduciary or agent therefor,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within five
Business Days prior to date of such application; nor shall the Trustee be
charged with knowledge of the curing of any such default or the elimination of
the act or condition preventing any such payment unless and until the Trustee
shall have received an Officers' Certificate to such effect.
(b) Subject to the provisions of Section 7.1 hereof, the
Trustee shall be entitled to rely on the delivery to it of a written notice to
the Trustee and the Company by a Person representing itself to be a holder of
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be,
including obligations under the new Credit Facility (or a trustee, fiduciary,
agent or other representative therefor) to establish that such notice has been
given by a holder of Senior Indebtedness and Guarantor Senior Indebtedness, as
the case may be,
-80-
(or a trustee, fiduciary, agent or other representative therefor) to establish
that such notice has been given by a holder of Senior Indebtedness and Guarantor
Senior Indebtedness, as the case may be, (or a trustee, fiduciary, agent or
other representative therefor); provided, however, that failure to give such
-------- -------
notice to the Company shall not affect in any way the ability of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, to
participate in any payment or distribution pursuant to this Article X, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness and
Guarantor Senior Indebtedness, as the case may be, held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article X, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 10.10. Reliance on Judicial Order or Certificate of
Liquidating Agent.
--------------------------------------------
Upon any payment or distribution of assets of the Company
referred to in this Article X, the Trustee, subject to the provisions of Section
7.1 hereof, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, 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 X; provided that the foregoing shall apply only if
--------
such court has been fully apprised of the provisions of this Article X.
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SECTION 10.11. Rights of Trustee as a Holder of Senior
Indebtedness and Guarantor Senior
Indebtedness, Preservation of Trustee's
Rights.
---------------------------------------
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article X with respect to any Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be, that may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness and Guarantor Senior Indebtedness, as the case may be, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article X shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.7 hereof.
SECTION 10.12. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article X shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article X in addition to or in place of the Trustee.
SECTION 10.13. No Suspension of Remedies.
-------------------------
Nothing contained in this Article X shall limit the right of
the Trustee or the Holders of Securities to take any action
to accelerate the maturity of the Securities and the Guarantees pursuant to
Article VI or to pursue any rights or remedies hereunder or under applicable
law, subject to the rights, if any, under this Article X of the holders, from
time to time, of Senior Indebtedness and Guarantors Senior Indebtedness, as the
case may be.
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ARTICLE XI
GUARANTEE
---------
SECTION 11.1. Unconditional Guarantee.
-----------------------
Each Guarantor hereby fully and unconditionally guarantees to
each Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, that: (i) the principal of and interest
on the Securities will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration or otherwise and
interest on the overdue principal, if any, and interest on any interest, to the
extent lawful, of the Securities to the Holders or the Trustee will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal of any
Securities, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set forth
in Section 11.3. Each Guarantor hereby agrees that its obligations hereunder
shall be full and unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that its Guarantee will
not be discharged except by complete performance of the obligations contained in
the Securities, this Indenture and in its Guarantee. If any Securityholder or
the Trustee is required by any court or otherwise to return to the Company, any
Guarantor or any custodian, trustee, liquidator or other similar official acting
in relation to the Company or any such Guarantor, any amount paid by the Company
or any such Guarantor to the Trustee or such Securityholder, each Guarantee to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it and all other Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand,
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(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article VI for the purposes of a Guarantee notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Guarantees.
SECTION 11.2. Severability.
------------
In case any provision of this Article XI shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.3. Limitation of Liability.
-----------------------
Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the guarantee by each
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and each Guarantor hereby
irrevocably agree that the obligations of each Guarantor under its Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any of the other
Guarantors in respect of the obligations of such other Guarantors under the
other Guarantees or pursuant to Section 11.5, result in the obligations of such
Guarantor under its Guarantee not constituting such fraudulent transfer or
conveyance.
SECTION 11.4. Guarantors May Consolidate, etc., on Certain Terms.
--------------------------------------------------
(a) Nothing contained in this Indenture or in the Securities
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor or shall prevent any sale of assets or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety,
to the Company or another Guarantor. Upon any such consolidation, merger, sale
or conveyance, the Guarantee given by such Guarantor shall no longer have any
force or effect.
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(b) Upon the sale or disposition as an entirety (whether by
merger, stock purchase, asset sale or otherwise) of a Guarantor (or all or
substantially all its assets) to a Person that is not a Subsidiary of the
Company and which sale or disposition is otherwise in compliance with Section
4.17 and the other terms of this Indenture, such Guarantor shall be deemed
released from all obligations under this Article XI without any further action
required on the part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by Officers'
Certificates and Opinions of Counsel certifying as to the compliance with this
Section 11.4. Any Guarantor not so released remains liable for the full amount
of principal of and interest on the Securities as provided in this Article XI.
SECTION 11.5. 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 any of the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets (as
--------
defined below) of each of the Guarantors (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 Securities or any
obligations of any of the other Guarantors with respect to any of the
Guarantees. "Adjusted Net Assets" of any Person at any date shall mean the
lesser of the amount by which (x) the fair value of the property of such Person
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under a
Guarantee of such Person at such date and (y) the present fair salable value of
the assets of such Person at such date exceeds the amount that will be required
to pay the probable liability of such Person on its debts (after giving effect
to all other fixed and contingent liabilities incurred or assumed on such date),
excluding debt in respect of the Guarantee of such Person, as they become
absolute and matured.
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SECTION 11.6. Waiver of Subrogation.
---------------------
Until all Obligations under each of the Guarantees, the Securities
and this Indenture are paid in full, each of the Guarantors hereby irrevocably
waives any claims or other rights that it may now or hereafter acquire against
the Company that arise from the existence, payment, performance or enforcement
of its obligations under its Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any of the Guarantors in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Person for the benefit of, and held in trust
for the benefit of, the Holders of the Securities, and shall, forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Securities, whether matured or unmatured, in accordance with the terms of
this Indenture. Each of the Guarantors acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10.06 is knowingly made
in contemplation of such benefits.
SECTION 11.7. Execution of Guarantee.
----------------------
To evidence their guarantee to the Securityholders set forth in this
Article XI, each Guarantor hereby agrees to execute a Guarantee in substantially
the form of Exhibit B to this Indenture, which shall be endorsed on each
Security ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guarantee set forth in this Article XI shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of a Guarantee. A Guarantee shall be signed on behalf of a
Guarantor by two Officers, or an Officer and an Assistant Secretary, or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate or
partnership actions) shall attest to the Guarantee prior to the authentication
of the Security on which it is endorsed, and the delivery of such Security by
the Trustee, after the authentication thereof here-
-86-
under, shall constitute due delivery of the Guarantee on behalf of such
Guarantor. Such signatures upon a Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantee and in case any such officer who shall have signed a Guarantee shall
cease to be such officer before the Security on which the Guarantee is endorsed
shall have been authenticated and delivered by the Trustee or disposed of by the
Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed the Guarantee had not ceased to be
such officer of the Guarantor.
SECTION 11.8. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each Guarantor, if any, covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive such
Guarantor from performing a Guarantee 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 it may lawfully do so)
each Guarantor, if any, hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE XII
MISCELLANEOUS
-------------
SECTION 12.1. Trust Indenture Act Controls.
----------------------------
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the TIA, such imposed duties or
incorporated provision shall control.
SECTION 12.2. Notices.
-------
Any notice or communication shall be deemed given if in writing and
delivered in Person or mailed by first-class mail, addressed as follows, and
received by the addressee:
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(a) if to the Company or any Guarantor:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
(b) if to the Trustee:
First Union National Bank
of North Carolina
[
]
Attention: [ ]
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of a Security,
including any notice delivered in connection with TIA (S) 310(b), TIA (S)
313(c), TIA (S) 314(a) and TIA (S) 315(b), shall be mailed to him, first-class
postage prepaid, at his address as it appears on the registration books of the
Registrar and shall be deemed given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.3. Communications by Holders with Other Holders
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA (S) 312(c).
-88-
SECTION 12.4. Certificate and Opinion of Counsel 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 or any
Guarantor, as the case may be, shall furnish to the Trustee (a) Officers'
Certificates in form and substance satisfactory to the Trustee 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, (b)
Opinions of Counsel in form and substance satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions have been complied
with and (c) where applicable, a certificate or opinion by an accountant that
complies with TIA (S) 314(c).
SECTION 12.5. Statements Required in Certificate and Opinion of
Counsel.
-------------------------------------------------
Each certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or Opinion
of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements contained in such certificate
or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
-89-
SECTION 12.6. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.7. Legal Holidays.
--------------
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 12.8. Governing Law.
-------------
The internal laws of the State of New York shall govern this
Indenture, the Securities and the Guarantees without regard to principles of
conflict of laws.
SECTION 12.9. No Recourse Against Others.
--------------------------
A trustee, director, officer, employee, stockholder or incorporator,
as such, of the Company or a Guarantor shall not have any liability for any
obligations of the Company or a Guarantor under the Securities, this Indenture
or any Guarantee or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability.
SECTION 12.10. Successors.
----------
All agreements of the Company and the Guarantors in this Indenture,
the Securities and the Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 12.11. Duplicate Originals.
-------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.12. Joint and Several Obligations.
-----------------------------
The Company shall have joint and several liability in respect
of all obligations hereunder. The Company hereby ac-
-90-
knowledges that this Agreement is the independent and several obligation of the
Company and may be enforced against the Company, whether or not enforcement of
any right or remedy hereunder has been sought against any other party hereto.
The Company hereby expressly waives, with respect to any of the amounts owing
hereunder by the Company in respect of the obligations (collectively, the "Other
Obligations"), diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that any other party exhaust any right,
power or remedy or proceed against the Company under this Indenture or against
any other Person under any other guarantee of, or security for, any of such
Other Obligations.
SECTION 12.13. Separability.
------------
In case any provision in this Indenture, the Securities or in any
Guarantee 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, and a Holder shall have no claim therefor against any party
hereto.
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, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
OUTDOOR COMMUNICATIONS, INC.
By:
-------------------------------
Name:
Title:
OCI(N) CORP.
By:
--------------------------------
Name:
Title:
OCI(S) CORP.
By:
--------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA,
as Trustee
By:
--------------------------------
Name:
Title:
Exhibit A
---------
OUTDOOR COMMUNICATIONS, INC.
Cusip No.:
No. $100,000,000
% SENIOR SUBORDINATED NOTE DUE 2007
OUTDOOR COMMUNICATIONS, INC. promises to pay to
or registered assigns upon surrender hereof the principal sum of One Hundred
Million Dollars ($100,000,000) on , 2007.
Interest Payment Dates: , .
OUTDOOR COMMUNICATIONS, INC.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
Dated:
A-2
Certificate of Authentication
This is one of the Senior Subordinated Notes due 2007 referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as Trustee
By:
-----------------------------
Authorized Signatory
A-3
(REVERSE OF SECURITY)
OUTDOOR COMMUNICATIONS, INC.
% SENIOR SUBORDINATED NOTE DUE 2007
1. Interest. OUTDOOR COMMUNICATIONS, INC., a Delaware corporation (the
--------
"Company"), promises to pay to the registered holder of this Security, until the
principal hereof is paid or duly provided for, interest on the principal amount
set forth on the face of this Security at a rate of % per annum. Interest on
---------
the Securities will accrue from and including 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 and including through but excluding the date
on which interest is paid or duly provided for. Interest shall be payable in
arrears on each and and at stated maturity, commencing
, 1998. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Interest on overdue principal and on overdue installments of
interest will accrue at the rate of interest borne by this Security. Interest on
any overdue principal or interest shall be payable on demand.
2. Method of Payment. The Company will pay interest on the Securities
-----------------
(except defaulted interest) to the registered Holder of this Security. Holders
must surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for the payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
wire transfer of Federal funds or interest by check payable in U.S. Legal
Tender.
3. Paying Agent. Initially, First Union National Bank of North Carolina
------------
(the "Trustee") will act as a Paying Agent. The Company may change any Paying
Agent without notice. Neither the Company nor any of its Affiliates may act as
Paying Agent.
4. Indenture and Guarantees. The Company issued the Securities under an
------------------------
Indenture dated as of , 1997 (the "Indenture") among the Company, the
Guarantors named therein and the Trustee. This Security is one of an issue of
Securities of the Company issued, or to be issued, under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Se-
A-4
curities 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 (S) (S)
77aaa-77bbbb), as amended from time to time. The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of them. The Securities are senior obligations of the Company limited
in aggregate principal amount to $100,000,000. The Securities are guaranteed on
a senior subordinated basis, jointly and severally, by the Guarantors pursuant
to Article Eleven of the Indenture.
5. Subordination. The Securities are subordinated to Senior Indebtedness
-------------
of the Company. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Securities may be paid. The Company agrees, and each
Holder by accepting a Security agrees, that the Indebtedness evidenced by the
Securities, including, but not limited to, the payment of principal of, premium,
if any, and interest on the Securities, and any other payment Obligation of the
Company in respect of the Securities is subordinated in right of payment, to the
extent and in the manner provided in the Indenture, to the prior payment in full
in cash of all Senior Indebtedness of the Company (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed) and
authorizes the Trustee to give effect and appoints the Trustee as attorney-in-
fact for such purpose.
6. Optional Redemption. The Company, at its option, may redeem all or
-------------------
any of the Securities, in whole or in part, at any time on or after
, 2002, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest, if any, to the redemption
date, if redeemed during the 12-month period beginning on
of the years indicated below:
Year Redemption Price
---- ----------------
2002............................................ %
2003............................................ %
2004............................................ %
2005 and thereafter............................. 100.00%
7. Mandatory Redemption. Except as set forth in paragraph 8 below, the
--------------------
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Securities.
A-5
8. Redemption upon Public Equity Offering. Notwithstanding the foregoing,
--------------------------------------
the Company may redeem in the aggregate up to one-third of the original
principal amount of Securities at any time and from time to time prior to
, 2000 at a redemption price equal to % of the aggregate principal amount
so redeemed, plus accrued interest to the redemption date, out of the Net
Proceeds of one or more Public Equity Offerings (other than the Common Stock
Offering); provided that at least two-thirds of the principal amount of
--------
Securities originally issued remain outstanding immediately after the occurrence
of any such redemption and that any such redemption occurs within 60 days
following the closing of any such Public Equity Offering.
9. Notice of Redemption. Notice of redemption will be mailed at least 30
--------------------
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed. On and after the Redemption Date, unless the Company
defaults in making the redemption payment, interest ceases to accrue on
Securities or portions thereof called for redemption.
10. Offers To Purchase. The Indenture provides that upon the occurrence
------------------
of a Change of Control or an Asset Sale and subject to further limitations
contained therein, the Company shall make an offer to purchase outstanding
Securities in accordance with the procedures set forth in the Indenture.
11. Denominations. The Securities are in registered form without coupons
-------------
and only in denominations of $1,000 of principal amount and integral multiples
thereof.
12. Persons Deemed Owners. The registered Holder of this Security may be
---------------------
treated as the owner of this Security for all purposes.
13. Unclaimed Money. If money for the payment of principal or interest
---------------
remains unclaimed for one year, the Trustee or Paying Agent will pay the money
back to the Company or a Guarantor, as the case may be, at its request. After
that, Holders entitled to the money must look to the Company or a Guarantor for
payment as general creditors unless an "abandoned property" law designates
another Person.
14. Amendment, Supplement, Waiver, Etc. The Company, any Guarantors and
----------------------------------
the Trustee (if a party thereto) may, without the consent of the Holders of any
outstanding Securities, amend, waive or supplement the Indenture, the Securities
or any Guarantee for certain specified purposes, including, among
A-6
other things, curing ambiguities, defects or inconsistencies, maintaining the
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended, and making any change that does not adversely affect the rights of any
Holder. Other amendments and modifications of the Indenture, the Securities or
any Guarantee may be made by the Company, any Guarantor and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of the outstanding Securities, subject to certain exceptions requiring
the consent of the Holders of the particular Securities to be affected.
15. Successor Corporation. When a successor corporation assumes all the
---------------------
obligations of its predecessor under the Securities or a Guarantee, as the case
may be, and the Indenture and the transaction complies with the terms of Article
V of the Indenture, the predecessor corporation will, except as provided in
Article V, be released from those obligations.
16. Restrictive Covenants. The Indenture contains certain covenants that,
---------------------
among other things, limit the ability of the Company and the Restricted
Subsidiaries to make restricted payments, to incur indebtedness, to create
liens, to sell assets, to permit restrictions on dividends and other payments by
Restricted Subsidiaries to the Company, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates or to
engage in certain businesses. The limitations are subject to a number of
important qualifications and exceptions. The Company must annually report to the
Trustee on compliance with such limitations.
17. Defaults and Remedies. Events of Default are set forth in the
---------------------
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(ix) or (x)
of the Indenture with respect to the Company) occurs and is continuing, then the
Holders of not less than 25% in aggregate principal amount of the outstanding
Securities may, and the Trustee upon the request of the Holders of not less than
25% in aggregate principal amount of the outstanding Securities shall, declare
the Default Amount of and any accrued interest on all of the Securities to be
due and payable immediately. If an Event of Default specified in Section
6.1(a)(ix) or (x) of the Indenture occurs with respect to the Company, the
Default Amount shall ipso facto become and be immediately due and payable
----------
without any declaration or other act on the part of the Trustee or any Holder.
Holders may not enforce the Indenture, the Securities or any Guarantee except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it en-
A-7
forces the Indenture, the Securities or any Guarantee. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing default (except a
default in payment of the Default Amount, principal or interest) if it
determines that withholding notice is in their interests.
18. Trustee Dealings with the Company. The Trustee, in its individual or
---------------------------------
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
19. No Recourse Against Others. A director, officer, employee, partner,
--------------------------
stockholder or incorporator, as such, of the Company or any Guarantor shall not
have any liability for any obligations of the Company or any such Guarantor
under the Indenture, the Securities or any Guarantee or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities and any
Guarantee.
20. Discharge. The Company's and any Guarantor's obligations pursuant to
---------
the Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of all
the Securities or upon the irrevocable deposit with the Trustee of U.S. Legal
Tender or U.S. Government Obligations sufficient to pay when due principal of
and interest on the Securities to maturity or redemption, as the case may be.
21. Authentication. This Security shall not be valid until the Trustee
--------------
signs the certificate of authentication on the other side of this Security.
The internal laws of the State of New York shall govern this Security
without regard to principles of conflict of laws.
A-8
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
OUTDOOR COMMUNICATIONS, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: Your Signature:
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(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 4.13 or 4.15 of the Indenture, check the Box: [_]
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 4.13 or 4.15 of the Indenture, state the amount:
$____________
Date: Your Signature:
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Signature Guarantee:
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EXHIBIT B
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GUARANTEE
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The undersigned hereby unconditionally guarantees on a senior
unsecured basis to the Holder of this Security the payments of principal of and
interest on this Security in the amounts and at the time when due and interest
on the overdue principal and interest, if any, of this Security, if lawful, and
the payment or performance of all other obligations of the Company under the
Indenture or the Securities, to the Holder of this Security and the Trustee, all
in accordance with and subject to the terms and limitations of this Security,
Article XI of the Indenture and this Guarantee. This Guarantee will become
effective in accordance with Article XI of the Indenture and its terms shall be
evidenced therein. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Security.
The obligations of the undersigned to the Holders of
Securities and to the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article XI of the Indenture and reference is hereby made
to the Indenture for the precise terms of this Guarantee and all of the other
provisions of the Indenture to which this Guarantee relates.
The internal laws of the State of New York shall govern this
Guarantee without regard to principles of conflict of laws.
OCI(N) CORP.
By:
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Name:
Title:
By:
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Name:
Title:
