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EXHIBIT 4.3
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REGAL CINEMAS, INC.
ISSUER,
AND
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY,
TRUSTEE
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INDENTURE
Dated as of September 24, 1997
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8 1/2% Senior Subordinated Notes due 2007
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF SEPTEMBER 24, 1997*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss.310 (a)(1) ........................................................................ 608
(b)............................................................................ 604, 607, 609
ss.311 (a)............................................................................ 604
(b)............................................................................ 604
(c)............................................................................ 604
ss.312 (a)............................................................................ 701
(b)............................................................................ 701
(c)............................................................................ 701
ss.314 (e)............................................................................ 101
ss.315 (a)............................................................................ 602, 903, 1209, 1210
(b)............................................................................ 105, 512, 602, 903
(c)............................................................................ 602, 903, 1209, 1210
(d)............................................................................ 602, 903, 1209, 1210
ss.316 (c)............................................................................ 105
ss.318 (a)............................................................................ 108
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions............................................................................... 1
Section 102. Other Definitions.........................................................................16
Section 103. Compliance Certificates and Opinions......................................................17
Section 104. Form of Documents Delivered to Trustee....................................................17
Section 105. Acts of Holders...........................................................................18
Section 106. Notices, Etc., to Trustee and Company.....................................................19
Section 107. Notice to Holders; Waiver.................................................................19
Section 108. Conflict of Any Provision of Indenture with Trust Indenture Act...........................20
Section 109. Effect of Headings and Table of Contents..................................................20
Section 110. Successors and Assigns....................................................................20
Section 111. Separability Clause.......................................................................20
Section 112. Benefits of Indenture.....................................................................20
Section 113. Governing Law.............................................................................20
Section 114. Legal Holidays............................................................................21
Section 115. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities..................................................................21
Section 116. No Recourse Against Others................................................................22
Section 117. Reliance on Financial Data................................................................22
Section 118. Incorporation by Reference of Trust Indenture Act.........................................22
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally...........................................................................23
Section 202. Restrictive Legends.......................................................................24
Section 203. Form of Face of Security..................................................................26
Section 204. Form of Reverse of Security...............................................................30
Section 205. Form of Trustee's Certificate of Authentication...........................................35
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms...........................................................................35
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Section 302. Denominations.............................................................................36
Section 303. Execution, Authentication, Delivery and Dating............................................36
Section 304. Temporary Securities......................................................................37
Section 305. Registration, Registration of Transfer and Exchange.......................................38
Section 306. BookEntry Provisions for Global Securities................................................39
Section 307. Special Transfer Provisions...............................................................41
Section 308. Mutilated, Destroyed, Lost and Stolen Securities..........................................44
Section 309. Payment of Interest; Interest Rights Preserved............................................44
Section 310. Persons Deemed Owners.....................................................................46
Section 311. Cancellation..............................................................................46
Section 312. Computation of Interest...................................................................46
Section 313. CUSIP Numbers.............................................................................46
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance..............................47
Section 402. Defeasance and Discharge..................................................................47
Section 403. Covenant Defeasance.......................................................................47
Section 404. Conditions to Defeasance or Covenant Defeasance...........................................48
Section 405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions...................................50
Section 406. Reinstatement.............................................................................50
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.........................................................................51
Section 502. Acceleration of Maturity; Rescission and Annulment........................................53
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................54
Section 504. Trustee May File Proofs of Claim..........................................................55
Section 505. Trustee May Enforce Claims Without Possession of Securities...............................56
Section 506. Application of Money Collected............................................................56
Section 507. Limitation on Suits.......................................................................56
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................................................57
Section 509. Restoration of Rights and Remedies........................................................57
Section 510. Rights and Remedies Cumulative............................................................58
Section 511. Delay or Omission Not Waiver..............................................................58
Section 512. Control by Holders........................................................................58
Section 513. Waiver of Past Defaults...................................................................58
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Section 514. Undertaking for Costs.....................................................................59
Section 515. Waiver of Stay, Extension or Usury Laws...................................................59
Section 516. Application of Trust Indenture Act to this Indenture......................................60
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults........................................................................60
Section 602. Certain Rights of Trustee.................................................................60
Section 603. Not Responsible for Recitals or Issuance of Securities....................................62
Section 604. May Hold Securities.......................................................................62
Section 605. Money Held in Trust.......................................................................62
Section 606. Compensation and Reimbursement............................................................62
Section 607. Conflicting Interests.....................................................................63
Section 608. Corporate Trustee Required; Eligibility...................................................63
Section 609. Resignation and Removal; Appointment of Successor.........................................64
Section 610. Acceptance of Appointment by Successor....................................................65
Section 611. Merger, Conversion, Consolidation or Succession to Business...............................66
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders..............................................66
Section 702. Reports by Trustee........................................................................67
Section 703. Reports by Company........................................................................67
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms......................................68
Section 802. Successor Substituted.....................................................................68
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
Section 901. Supplemental Indentures and Amendments
Without Consent of Holders.........................................................69
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Section 902. Supplemental Indentures and Certain Amendments with Consent
of Holders............................................................................70
Section 903. Execution of Supplemental Indentures......................................................71
Section 904. Effect of Supplemental Indentures.........................................................71
Section 905. Conformity with Trust Indenture Act.......................................................71
Section 906. Reference in Securities to Supplemental Indentures........................................71
Section 907. Notice of Supplemental Indentures.........................................................72
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest...............................................72
Section 1002. Maintenance of Office or Agency..........................................................72
Section 1003. Money for Security Payments to Be Held in Trust..........................................73
Section 1004. Corporate Existence......................................................................74
Section 1005. Payment of Taxes and Other Claims........................................................74
Section 1006. Maintenance of Properties................................................................75
Section 1007. Limitation on ...........................................................................75
Section 1008. Limitation on Restricted Payments........................................................75
Section 1009. Limitation on Transactions with Affiliates...............................................77
Section 1010. Limitation on Senior Subordinated Indebtedness...........................................77
Section 1011. Change of Control........................................................................77
Section 1012. Provision of Financial Information.......................................................78
Section 1013. Statement as to Compliance...............................................................78
Section 1014. Waiver of Certain Covenants..............................................................79
Section 1015. Fallaway of Certain Covenants............................................................79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption......................................................................79
Section 1102. Applicability of Article.................................................................80
Section 1103. Election to Redeem; Notice to Trustee....................................................80
Section 1104. Selection by Trustee of Securities to Be Redeemed........................................80
Section 1105. Notice of Redemption.....................................................................80
Section 1106. Deposit of Redemption Price..............................................................81
Section 1107. Securities Payable on Redemption Date....................................................82
Section 1108. Securities Purchased in Part.............................................................82
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ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness............................................82
Section 1202. Payment over of Proceeds upon Dissolution, Etc...........................................83
Section 1203. Suspension of Payment When Senior
Indebtedness in Defau................................................................84
Section 1204. Payment Permitted If No Default..........................................................85
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness..................................86
Section 1206. Provisions Solely to Define Relative Rights..............................................86
Section 1207. Trustee to Effectuate Subordination......................................................87
Section 1208. No Waiver of Subordination Provisions....................................................87
Section 1209. Notice to Trustee........................................................................88
Section 1210. Reliance on Bankruptcy Order or Certificate
of Liquidating Agent Bank............................................................89
Section 1211. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.....................................................89
Section 1212. Article Applicable to Paying Agents......................................................89
Section 1213. No Suspension of Remedies................................................................89
Section 1214. Trust Moneys Not Subordinated............................................................90
Section 1215. Duties Owed by Trustee to Holders of Senior Indebtedness.................................90
EXHIBITS
A-1 - Form of Certificate for Exchange or Registration of Transfer From Restricted
Global Security to Regulation S Global Security
A-2 - Form of Certificate for Exchange or Registration of Transfer From Regulation S
Global Security to Restricted Global Security
A-3 - Form of Certificate for Transfer of U.S. Physical Securities to Regulation S
Global Security or Restricted Global Security
A-4 - Form of Certificate for Transfer or Exchange after Three Years
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INDENTURE dated as of September 24, 1997 between Regal Cinemas, Inc., a
Tennessee corporation, as issuer (the "Company"), and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust
Company, a New York banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of and issue of
its 8 1/2% Senior Subordinated Notes due 2007 (the "Initial Securities"), and 8
1/2% Exchange Senior Subordinated Notes due 2007 (the "Exchange Securities" and,
together with the Initial Securities, the "Securities") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture;
WHEREAS, upon the effectiveness of the Exchange Offer Registration
Statement (as defined herein) or the Shelf Registration Statement (as defined
herein), as the case may be, this Indenture will be subject to, and shall be
governed by, the provisions of the Trust Indenture Act that are required or
deemed to be part of and to govern indentures qualified under the Trust
Indenture Act; and
WHEREAS, all things necessary have been done to make the Securities,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company, each in accordance with its
respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;
(e) the words "include", "included" and "including" as used
herein shall be deemed in each case to be followed by the phrase
"without limitation"; and
(f) the words "amendment or refinancing" as used herein shall
be deemed in each case to refer to any amendment, renewal, extension,
substitution, refinancing, restructuring, restatement, replacement,
supplement or other modification of any instrument or agreement; the
words "amended or refinanced" shall have a correlative meaning.
Certain terms, used principally in Articles Five, Ten and Twelve, are
defined in those Articles.
"Acquired Indebtedness" of any particular Person means Indebtedness of
any other Person existing at the time such other Person merged with or into or
became a Subsidiary of such particular Person or assumed by such particular
Person in connection with the acquisition of assets from any other Person, and
not incurred by such other Person in connection with, or in contemplation of,
such other Person merging with or into such particular Person or becoming a
Subsidiary of such particular Person or such acquisition.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any other Person that
owns, directly or indirectly, ten percent or more of such Person's outstanding
Capital Stock or any officer or director of any such Person or other Person or
with respect to any natural Person, any person having a relationship with such
Person by blood, marriage or adoption not more remote than first cousin. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
any issuance or sale by a Subsidiary of Capital Stock of such Subsidiary, and
including a consolidation or merger or other sale of any such Subsidiary with,
into or to another Person in a transaction in which such Subsidiary ceases to be
a Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) any shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business
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or (iii) other assets or rights of such Person or any of its Subsidiaries
outside of the ordinary course of business. Notwithstanding the foregoing, the
term "Asset Disposition" shall not include a disposition by a Subsidiary of the
Company to the Company or a Wholly Owned Subsidiary or by the Company or a
Subsidiary to a Wholly Owned Subsidiary.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means applicable procedures of the Depositary,
Euroclear System or Cedel Bank S.A., as the case may be.
"Bankruptcy Laws" means the bankruptcy laws of the United States and
the law of any other jurisdiction relating to bankruptcy, insolvency, winding
up, liquidation, reorganization or relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board of Directors duly authorized to act under the Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or other
day on which banks or trust companies in New York, New York, Knoxville,
Tennessee or the city in which the Corporate Trust Office is located are
authorized or required by law, regulation or executive order to be closed or, if
no Security is outstanding, the city in which the principal corporate trust
office of the Trustee is located.
"Capital Lease Obligation" of any Person means any obligations of such
Person and its Subsidiaries on a consolidated basis under any capital lease of a
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, any rights (other than debt securities convertible into capital
stock), warrants or options to acquire such capital stock, whether now
outstanding or issued after the date of the Indenture.
"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, (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 United States 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
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described in clauses (ii) and (iii) entered into with any financial institution
meeting the qualifications specified in clause (iii) above, (v) commercial paper
having one of the two highest rating categories obtainable from Moody's or S&P
in each case maturing within six months after the date of acquisition and (vi)
readily marketable direct obligations issued by any State of the United States
of America or any political subdivision thereof having one of the two highest
rating categories obtainable from Moody's or S&P.
"Change of Control" shall mean the occurrence of, after the date of the
Indenture, either of the following events: (a) any Person or any Persons acting
together that would constitute a group (for purposes of Section 13(d) of the
Exchange Act, or any successor provision thereto) (a "Group"), together with any
Affiliates thereof, shall beneficially own (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision thereto), directly or
indirectly, at least 50% of the aggregate voting power of all classes of Voting
Stock of the Company (for the purposes of this clause (a) a Person shall be
deemed to beneficially own the Voting Stock of a corporation that is
beneficially owned (as defined above) by another corporation (a "parent
corporation") if such person beneficially owns (as defined above) at least 50%
of the aggregate voting power of all classes of Voting Stock of such parent
corporation) or (b) any Person or Group, together with any Affiliates thereof,
shall succeed in having a sufficient number of its nominees elected to the Board
of Directors of the Company such that such nominees when added to any existing
director remaining on the Board of Directors of the Company after such election
who is an Affiliate of such Group, will constitute a majority of the Board of
Directors of the Company.
"Closing Date" means the date on which the Securities are originally
issued under the Indenture.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person. To the extent necessary to comply
with the requirements of the provisions of Trust Indenture Act Sections 310
through 317 as they are applicable to the Company, the term "Company" shall
include any other obligor with respect to the Securities for the purposes of
complying with such provisions.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two of the following officers: its
Chairman of the Board, any Vice Chairman, its President, any Executive Vice
President, any Senior Vice President, any Vice President, its Treasurer or its
Secretary, and delivered to the Trustee.
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"Consolidated EBITDA" of any Person means for any period, on a
consolidated basis in accordance with GAAP for such Person and its consolidated
Subsidiaries, without duplication, the sum of the amounts for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) Consolidated
Income Tax Expense (other than income taxes attributable to extraordinary,
unusual or non-recurring gains or losses), (iv) depreciation and amortization
expense, (v) other non-cash charges, (vi) other non-operating expenses that have
been deducted in the determination of Consolidated Net Income and (vii)
non-recurring expenses and charges incurred by such Person in connection with or
as a result of the acquisition of another Person in a business combination
accounted for as a pooling of interests in accordance with Accounting Principles
Board Opinions No. 16 (or any successor thereto); provided, however, that for
each such consolidated Subsidiary the items (i) through (vii) shall be included
in such sum only to the extent and in the same proportion that the Consolidated
Net Income of such consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"Consolidated EBITDA Ratio" of any Person means for any period the
ratio of (i) Consolidated EBITDA of such Person for such period to (ii) the sum
of (A) Consolidated Interest Expense of such Person for such period, plus (B)
the annual interest expense with respect to any Indebtedness Incurred or
proposed to be incurred by such person or its consolidated Subsidiaries since
the beginning of such period to the extent not included within clause (ii) (A),
minus (C) Consolidated Interest Expense of such Person with respect to any
Indebtedness that is no longer outstanding or that will no longer be outstanding
as a result of the transaction with respect to which the Consolidated EBITDA
Ratio is being calculated, to the extent included within clause (ii) (A);
provided, however, that in making such computation, the Consolidated Interest
Expense of such Person attributable to interest on any Indebtedness bearing a
floating interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation had been the applicable rate for the entire
period; and provided, further, that, in the event such Person or any of its
consolidated Subsidiaries has made Asset Dispositions or acquisitions of assets
not in the ordinary course of business (including by merger, consolidation or
purchase of Capital Stock) during or after such period, the computation of the
Consolidated EBITDA Ratio (and for the purpose of such computation, the
calculation of Consolidated Net Income, Consolidated Interest Expense and
Consolidated EBITDA) shall be made on a pro forma basis as if the Asset
Dispositions or acquisitions had taken place on the first day of such period.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" of any Person shall mean, on a
consolidated basis for such Person and its consolidated Subsidiaries, without
duplication, for any period, as applied to any Person, (i) the sum of (a) the
aggregate of the interest expense on Indebtedness of such Person and its
consolidated Subsidiaries for such period, on a consolidated basis, including,
without limitation, (1) amortization of debt discount, (2) the net cost under
Interest Rate Protection Agreements (including amortization of discounts), (3)
the interest portion of any deferred payment
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obligation and (4) accrued interest, plus (b) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued
by such Person and its consolidated Subsidiaries during such period minus (ii)
the cash interest income (exclusive of deferred financing fees) of such Person
and its consolidated Subsidiaries during such period, in each case as determined
in accordance with GAAP consistently applied.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its consolidated
Subsidiaries for such period determined in accordance with GAAP; provided that
there shall be excluded therefrom, (a) the net income (or loss) of any Person
that is not a consolidated Subsidiary of such Person except to the extent of the
amount of dividends or other distributions actually paid to such Person by such
other Person during such period, (b) extraordinary gains and losses (and any
unusual gains and losses arising outside the ordinary course of business not
included in extraordinary gains and losses), (c) net gains and losses in respect
of Asset Dispositions and (d) the cumulative effect of changes in accounting
principles and (e) the tax effect of any of the items described in clauses (a)
through (d) above.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration.
"Currency Hedging Obligations" means the obligations of any Person
pursuant to an arrangement designed to protect such Person against fluctuations
in currency exchange rates.
"Debt Rating" means the rating assigned to the Securities by Moody's or
S&P, as the case may be.
"Default" means any event which is, or after notice or the passage of
time or both, would be an Event of Default.
"Depositary" or "DTC" means The Depository Trust Company, its nominees
and their respective successors.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under any Working Capital Agreement and (ii) any other Senior Indebtedness (a)
which at the time of determination exceeds $25 million in aggregate principal
amount, (b) which is specifically designated in the instrument evidencing such
Senior Indebtedness as "Designated Senior Indebtedness" by the Company and (c)
as to which the Trustee has been given written notice of such designation.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Offer" means the offer by the Issuer to the Holders of the
Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of
this Indenture and refers to any Exchange Securities containing terms identical
in all material respects to the Initial Securities (except that such Exchange
Securities shall not contain terms with respect to transfer restrictions) that
are issued and exchanged for the Initial Securities in accordance with the
Exchange Offer, as provided for in the Registration Rights Agreement and this
Indenture.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied.
"Guarantee" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guaranteed Indebtedness" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
and all dividends of other Persons for the payment of which, in either case,
such Person is directly or indirectly responsible or liable as obligor,
guarantor or otherwise.
"Holder" means the registered holder of any Security.
"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
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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,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time becoming Indebtedness shall not be deemed an Incurrence of
such Indebtedness.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business, but
including, without limitation, all obligations of such Person in connection with
any letters of credit and acceptances issued under letter of credit facilities,
acceptance facilities or other similar facilities, now or hereafter outstanding,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade accounts payable arising in the ordinary
course of business, (iv) every obligation of such Person issued or contracted
for as payment in consideration of the purchase by such Person or a Subsidiary
of such Person of the Capital Stock or substantially all of the assets of
another Person or in consideration for the merger or consolidation with respect
to which such Person or a Subsidiary of such Person was a party, (v) all
Indebtedness referred to in clauses (i) through (iv) above of other Persons and
all dividends of other Persons, the payment of which is secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness, (vi) all
Guaranteed Indebtedness of such Person, (vii) all obligations under Interest
Rate Protection Agreements of such Person, (viii) all Currency Hedging
Obligations of such Person and (ix) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types referred
to in clauses (i) through (viii) above.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Protection Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, option or future
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16
contract or other similar agreement or arrangement designed to protect
the Company or any of its Subsidiaries against fluctuations in interest rates.
"Investment Grade Status" exists as of a date and thereafter if at such
date either (i) the Debt Rating of ▇▇▇▇▇'▇ is at least Baa3 (or the equivalent)
or higher or (ii) the Debt Rating of S&P is at least BBB- (or the equivalent) or
higher.
"Lien" means any mortgage, lien (statutory or other), pledge, security
interest, encumbrance, claim, hypothecation, assignment for security, deposit
arrangement or preference or other security agreement of any kind or nature
whatsoever. A Person shall be deemed to own subject to a Lien any property which
it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to Indebtedness of such Person. The right of a distributor to the
return of its film held by a Person under a film licensing agreement is not a
Lien as used herein. Reservation of title under an operating lease by the lessor
and the interest of the lessee therein are not Liens as used herein.
"Maturity" means, with respect to any Security, the date on which the
principal of such Security becomes due and payable as provided in such Security
or the Indenture, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor to the
rating agency business thereof.
"Non-Payment Default" means any event of default with respect to any
Designated Senior Indebtedness (other than a Payment Default) pursuant to which
the Maturity thereof may be accelerated.
"Non-Recourse Indebtedness" means Indebtedness as to which (i) none of
the Company or any of its Subsidiaries (a) provides credit support (including
any undertaking, agreement or instrument which would constitute Indebtedness) or
(b) is directly or indirectly liable and (ii) no default with respect to such
Indebtedness (including any rights which the holders thereof may have to take
enforcement action against the relevant Unrestricted Subsidiary or its assets)
would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or its Subsidiaries (other than Non-Recourse
Indebtedness) to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity.
"Obligations" means any principal (including reimbursement obligations
and guarantees), premium, if any, interest (including interest accruing on or
after the filing of, or which would have accrued but for the filing of, any
petition in bankruptcy or for reorganization relating to the Company whether or
not a claim for post-filing interest is allowed in such proceedings), penalties,
fees, expenses, indemnifications, reimbursements, claims for rescission,
damages, gross-up payments and other liabilities payable under the documentation
governing any Indebtedness or otherwise.
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"Officers' Certificate" means a certificate signed by any two of the
following officers of the Company: its Chairman, any Vice Chairman, its
President, any Executive Vice President, any Senior Vice President, any Vice
President, its Treasurer, its Chief Financial Officer or its Secretary and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Trust Indenture Act Section 314(e) to the extent applicable.
"Opinion of Counsel" means a written opinion of counsel to the Company
or any other Person reasonably satisfactory to the Trustee.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment,
redemption or purchase money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(c) Securities, except to the extent provided in Sections 402
and 403, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Four; and
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, direction, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"Payment Default" means any default in payment (whether at stated
maturity, upon scheduled installment, by acceleration or otherwise) of principal
of, premium, if any, or interest in respect of any Senior Indebtedness beyond
any applicable grace periods.
"Permitted Indebtedness" shall mean the following:
(i) Indebtedness of the Company under any Working Capital
Agreement in an aggregate principal amount at any one time outstanding
not to exceed the sum of $300 million;
(ii) Indebtedness of the Company under the Securities
(including any Exchange Securities);
(iii) Indebtedness of the Company (other than Indebtedness
described under any clause of this definition) outstanding on the
Closing Date after giving effect to the application of the proceeds of
the Securities;
(iv) Indebtedness of the Company or any of its Subsidiaries
consisting of Permitted Interest Rate Protection Agreements;
(v) Indebtedness owed by the Company to any Wholly Owned
Subsidiary of the Company or Indebtedness owed by a Subsidiary of the
Company to the Company or a Wholly Owned Subsidiary of the Company;
(vi) Indebtedness which is exchanged for or the proceeds of
which are used to refinance or refund, or any extension or renewal of,
outstanding Indebtedness Incurred pursuant to clause (iii) of this
paragraph (each of the foregoing, a "refinancing") in an aggregate
principal amount not to exceed the principal amount of the Indebtedness
so refinanced plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the
Indebtedness so refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing
by means of a tender offer or privately negotiated repurchase, plus the
expenses of the Company or the Subsidiary, as the case may be, incurred
in connection with such refinancing;
(vii) Indebtedness of any Subsidiary Incurred in connection
with the Guarantee of Indebtedness of the Company;
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(viii) Indebtedness relating to Currency Hedging Obligations
entered into solely to protect the Company or any of its Subsidiaries
from fluctuations in currency exchange rates and not to speculate on
such fluctuations;
(ix) Capital Lease Obligations of the Company or any of its
Subsidiaries;
(x) Indebtedness of the Company or any of its Subsidiaries in
connection with one or more standby letters of credit or performance
bonds issued in the ordinary course of business or pursuant to
self-insurance obligations;
(xi) Indebtedness represented by property, liability and
workers' compensation insurance (which may be in the form of letters of
credit);
(xii) Acquired Indebtedness, provided that such Indebtedness,
if Incurred by the Company, would be in compliance with "Limitation on
Consolidated Indebtedness"; and
(xiii) Indebtedness not otherwise permitted to be incurred
pursuant to clauses (i) through (xii) above which, together with any
other Indebtedness pursuant to this clause (xiii), has an aggregate
principal amount that does not exceed $100 million at any time
outstanding.
"Permitted Interest Rate Protection Agreements" means, with respect to
any Person, Interest Rate Protection Agreements entered into in the ordinary
course of business by such Person that are designed to protect such Person
against fluctuations in interest rates with respect to Permitted Indebtedness
and that have a notional amount no greater than the payment due with respect to
Permitted Indebtedness hedged thereby.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for purposes of this definition, any Security
authenticated and delivered under Section 308 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, is or upon the happening of an event or passage of time would be
required to be redeemed prior to the final Stated Maturity of the Securities or
is redeemable at the option of the holder thereof at any time prior to such
final Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity at the option of the
holder thereof.
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"Redemption Date", when used with respect to any Securities to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights Agreement
between the Company and the Initial Purchasers named therein dated as of
September 24, 1997 relating to the Securities.
"Registration Statement" means the Registration Statement as
defined in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Payments" shall have the meaning set forth in the
"Limitation on Restricted Payments" covenant.
"Restricted Payments Computation Period" means the period (taken as one
accounting period) from the Closing Date to the last day of the Company's fiscal
quarter preceding the date of the applicable proposed Restricted Payment.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" and "Securities" have the meaning set forth in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture. For
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all purposes of this Indenture, the term "Securities" shall include any Exchange
Securities to be issued and exchanged for any Initial Securities in accordance
with the Exchange Offer as provided for in the Registration Rights Agreement and
this Indenture and, for purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
"Senior Indebtedness" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of any Working Capital Agreement,
whether for principal, premium, if any, interest (including interest accruing
after the filing of, or which would have accrued but for the filing of, a
petition by or against the Company under the Bankruptcy Laws, whether or not
such interest is allowed as a claim after such filing in any proceeding under
such law), fees, expenses, indemnities, gross-ups or other payments thereunder
and (ii) the principal of, premium, if any, and interest on all other
Indebtedness of the Company (other than the Securities), whether outstanding on
the date of the Indenture or thereafter Incurred, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Securities, (ii) Indebtedness of the Company that
is expressly subordinated in right of payment to any Senior Indebtedness of the
Company or the Securities, (iii) Indebtedness of the Company that by operation
of law is subordinate to any general unsecured obligations of the Company, (iv)
Indebtedness of the Company to the extent Incurred in violation of any covenant
of the Indenture, (v) any liability for federal, state or local taxes or other
taxes, owed or owing by the Company, (vi) trade account payables owed or owing
by the Company, (vii) amounts owed by the Company for compensation to any
employee, officer or director for services rendered to the Company, (viii)
Indebtedness of the Company to any Subsidiary or any other Affiliate of the
Company and (ix) Indebtedness which when Incurred and without respect to any
election under Section 1111(b) of Title 11 of the United States Code is without
recourse to the Company or any Subsidiary.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Special Record Date" means a date fixed by the Trustee for the payment
of any Defaulted Interest pursuant to Section 309.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereof, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any person means (i) any corporation of which more than
50% of the outstanding shares of Capital Stock having ordinary voting power for
the election of directors is owned directly or indirectly by such Person and
(ii) any partnership, limited liability company, association, joint venture or
other entity in which such Person, directly or indirectly, has more
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than a 50% equity interest, and, except as otherwise indicated herein,
references to Subsidiaries shall refer to Subsidiaries of the Company.
Notwithstanding the foregoing, for purposes hereof, an Unrestricted Subsidiary
shall not be deemed a Subsidiary of the Company other than for purposes of the
definition of "Unrestricted Subsidiary" unless the Company shall have designated
in writing to the Trustee an Unrestricted Subsidiary as a Subsidiary. A
designation of an Unrestricted Subsidiary as a Subsidiary may not thereafter be
rescinded.
"Surviving Entity" shall have the meaning set forth under "Merger and
Sale of Assets."
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Dollars", "United States Dollars", "US$" and the symbol "$" each
mean currency of the United States of America.
"Unrestricted Subsidiary" means a Subsidiary of the Company designated
in writing to the Trustee (i) whose properties and assets, to the extent they
secure Indebtedness, secure only Non-Recourse Indebtedness, (ii) that has no
Indebtedness other than Non-Recourse Indebtedness and (iii) that has no
Subsidiaries.
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
a corporation (irrespective of whether or not at the time, stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person, all of the Capital Stock (other than Directors' qualifying shares) or
other ownership interests of which shall at the time be owned by such Person or
by one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
"Working Capital Agreement" mean (i) the Second Amended and Restated
Loan Agreement dated as of July 7, 1993, as amended, among the Company and the
lender named therein and (ii) any other agreement or agreements between the
Company and a financial institution or institutions providing for the making of
loans or advances on a revolving basis, term loans, the issuance of letters of
credit and/or the creation of the bankers' acceptances to fund the Company's
general corporate requirements.
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SECTION 102. OTHER DEFINITIONS.
DEFINED
TERM IN SECTION
---- ----------
"Act" ..........................................................................................105
"APB 16" ......................................................................................1008
"Bankruptcy Order"..............................................................................501
"CEDEL".........................................................................................201
"Change of Control Offer"......................................................................1011
"Change of Control Payment Date"...............................................................1011
"covenant defeasance" ..........................................................................403
"Custodian".....................................................................................501
"Defaulted Interest" ...........................................................................309
"defeasance" ...................................................................................402
"Euroclear".....................................................................................201
"Events of Default".............................................................................501
"Global Security"...............................................................................201
"incorporated provision" .......................................................................108
"indenture security holder".....................................................................118
"indenture to be qualified".....................................................................118
"indenture trustee".............................................................................118
"institutional trustee".........................................................................118
"Initial Blockage Period"......................................................................1203
"obligor".......................................................................................118
"Payment Blockage Period"......................................................................1203
"Permitted Junior Securities" .................................................................1202
"Physical Securities"...........................................................................201
"Private Placement Legend"......................................................................202
"Purchase Date" ................................................................................101
"rate(s) of exchange" ..........................................................................116
"Regulation S Global Security"..................................................................201
"Relevant Person" ..............................................................................119
"Restricted Global Security"....................................................................201
"Restricted Payments" .........................................................................1008
"Restricted Period" ............................................................................306
"Security Register" ............................................................................305
"Security Registrar" ...........................................................................305
"Subordinated Obligations" ....................................................................1201
"U.S. Government Obligations" ..................................................................404
"U.S. Physical Securities" .....................................................................201
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SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion (other than the certificates required by
Section 1013) with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to
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factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Trust Indenture Act Section 315) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding Trust Indenture Act
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the
Securities then Outstanding shall be
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computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) For all purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
delivered, in writing, to or with the Trustee at the Corporate Trust
Office; or
(b) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or delivered in writing
to the Company addressed to it at Regal Cinemas, Inc., Attention:
Secretary, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice mailed to a Holder in the aforesaid manner
shall be conclusively deemed to have been received by such Holder when mailed
whether or not actually received by such Holder. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of
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notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 108. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent, the Holders and the holders of Senior Indebtedness)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws. Upon the
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issuance of the Exchange Securities or the effectiveness of the Shelf
Registration Statement, this Indenture shall be subject to the provisions of the
Trust Indenture Act that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Purchase Date with respect to any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
date established for payment of Defaulted Interest pursuant to Section 309,
Stated Maturity or Purchase Date and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, date established for payment of Defaulted Interest pursuant to
Section 309, Stated Maturity or Purchase Date, as the case may be, to the next
succeeding Business Day.
SECTION 115. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as
its authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Securities or this Indenture that may be
instituted in any federal or state court in the State of New York, Borough of
Manhattan, or brought under federal or state securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding, and (iii) agrees that service of process upon CT Corporation
System and written notice of said service to it (mailed or delivered to its
Secretary at its principal office in Knoxville, Tennessee as specified in
Section 106(b) hereof, shall be deemed in every respect effective service of
process upon it in any such suit or proceeding. The Company further agrees to
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of CT Corporation System in full force and effect so long as this
Indenture shall be in full force and effect.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Securities, to the extent permitted by law.
SECTION 116. NO RECOURSE AGAINST OTHERS.
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A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 117. RELIANCE ON FINANCIAL DATA.
In computing any amounts under this Indenture,
(i) to the extent relevant in computing any amounts under this
Indenture, the Company shall use audited financial statements of the
Company, its Subsidiaries, any Person that would become a Subsidiary in
connection with the transaction that requires the computation and any
Person from which the Company or a Subsidiary has acquired an operating
business, or is acquiring an operating business in connection with the
transaction that requires the computation (each such Person whose
financial statements are relevant in computing any particular amount, a
"Relevant Person") for the period or portions of the period to which
the computation relates for which audited financial statements are
available on the date of computation and unaudited financial statements
and other current financial data based on the books and records of the
Relevant Person or Relevant Persons, as the case may be, to the extent
audited financial statements for the period or any portion of the
period to which the computation relates are not available on the date
of computation, and
(ii) the Company shall be permitted to rely in good faith on
the financial statements and other financial data derived from the
books and records of any Relevant Person that are available on the date
of the computation.
SECTION 118. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
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All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by the Commission rule have the meanings assigned to
them by such definitions.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Initial Securities shall be known as the "8 1/2% Senior
Subordinated Notes due 2007" and the Exchange Securities shall be known as the
"8 1/2% Exchange Senior Subordinated Notes due 2007", in each case, of the
Company. The Securities and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed, typewritten
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The Initial Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated September 19, 1997, among the Company,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., and ▇▇▇▇▇▇ Brothers Inc.
Initial Securities offered and sold to "qualified institutional buyers"
(as defined in Rule 144A) in reliance on Rule 144A shall be issued initially in
the form of one or more permanent global Securities in definitive, fully
registered form without interest coupons substantially in the form set forth in
this Article (collectively, the "Restricted Global Security") deposited with, or
on behalf of, the Depositary or with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Restricted Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Depositary or its nominee, or of the Trustee, as custodian
for the Depositary or its nominee, as hereinafter provided.
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Initial Securities offered and sold in reliance on Regulation S shall
be issued in the form of one or more permanent global Securities in fully
registered form without interest coupons (collectively, the "Regulation S Global
Security" and, together with the Restricted Global Security, the "Global
Securities" or each individually, a "Global Security") substantially in the form
set forth in this Article. The Regulation S Global Securities will be registered
in the name of a nominee of DTC and deposited with the Trustee on behalf of the
Purchasers, for the accounts of the Euroclear System ("Euroclear") and Cedel
Bank, S.A. ("CEDEL"). The aggregate principal amount of the Regulation S Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Depositary or its nominee, or of the Trustee, as custodian
for the Depositary or its nominee, as hereinafter provided. Until and including
the 40th day after the date of this Indenture, beneficial interests in the
Regulation S Global Security may be held only through Euroclear or CEDEL, unless
delivery is made through the Restricted Global Security in accordance with the
certification requirements provided in this Indenture.
If DTC is at any time unwilling or unable to continue as a depositary,
or if, in the case of the Regulation S Global Security held for an account of
Euroclear or CEDEL, Euroclear or CEDEL, as the case may be, is closed for
business for 14 continuous days or announces an intention to cease or
permanently ceases business, the Company will issue certificates for the
Securities in definitive, fully registered, non-global form without interest
coupons in exchange for the Regulation S Global Security or Restricted Global
Security, as the case may be. In all cases, certificates for Securities
delivered in exchange for any Global Security or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by DTC.
In the case of certificates for Securities in non-global form issued in
exchange for the Regulation S Global Security or Restricted Global Security,
such certificates will bear the first legend appearing under Section 202 of this
Indenture (unless the Company determines otherwise in accordance with applicable
law). The holder of a Security in non-global form may transfer such Security,
subject to compliance with the provisions of such legend, by surrendering it at
the office or agency maintained by the Company for such purpose in the Borough
of Manhattan, The City of New York, which initially will be the office of the
Trustee.
Initial Securities offered and sold other than as global securities
shall be issued in the form of permanent certificated Securities in registered
form in substantially the form set forth in this Article (the "U.S. Physical
Securities").
SECTION 202. RESTRICTIVE LEGENDS.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case as
provided for in the Registration Rights Agreement and each such Restricted
Global Security and each U.S. Physical Security shall bear the following legend
(the "Private Placement Legend") on the face thereof:
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM
THE TRANSFERROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR
ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
ACT, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (5) TO AN
INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (IF APPLICABLE) AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
Each Global Security, whether or not an Initial Security, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
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ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF
THE INDENTURE.
SECTION 203. FORM OF FACE OF SECURITY.
REGAL CINEMAS, INC.
8 1/2% [Exchange]* Senior Subordinated Note due 2007
NO._______ CUSIP ______
Regal Cinemas, Inc., a Tennessee corporation (herein called the
"Company", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ________
or registered assigns, the principal sum of __________________________ DOLLARS
[(or such other amount that may from time to time be indicated on the records of
DTC or its nominee or on the records of the Trustee as custodian for DTC or its
nominee as the result of increases or decreases by adjustments made on the
records of DTC or its nominee or on the records of the Trustee, as the custodian
for DTC, in accordance with the rules and procedures of DTC; provided; however
that such amount may not exceed $125,000,000)]** on October 1, 2007, at the
office or agency of the Company referred to below, and to pay interest thereon
on April 1, 1998, and semiannually thereafter, on April 1 and October 1 in each
year, from September 24, 1997, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 8 1/2% per
annum [subject to adjustment as provided below],*** until the principal hereof
is paid or duly provided for, and (to the extent lawful) to pay on demand
interest on any overdue interest at the rate borne by the Securities from the
date of the Interest Payment Date on which such overdue interest becomes payable
to the date payment of such interest has been made or duly provided for. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the March 15 or September 15 (whether or not a Business Day), as the case may
----------
* Include only for Exchange Securities.
** Include only for Global Securities
*** Include only for Initial Securities.
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be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for, and interest on such defaulted interest at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the registered Holder on such Regular Record Date, and
may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of September 24, 1997, between the
Company and the Initial Purchasers named therein (the "Registration Rights
Agreement"). In the event that (a) the Exchange Offer Registration Statement (as
such term is defined in the Registration Rights Agreement) is not filed with the
Securities and Exchange Commission on or prior to the 60th day following the
date of original issuance of the Securities, (b) the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th day following the
date of original issuance of the Securities, (c) the Exchange Offer (as defined
in the Registration Rights Agreement) is not consummated or, if applicable, the
Shelf Registration Statement (as defined in the Registration Rights Agreement)
is not declared effective on or prior to the 180th day following the date of
original issuance of the Securities or (d) any registration statement required
by the Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically permitted herein)
without being succeeded immediately by an additional registration statement
filed and declared effective, then the interest rate borne by this Security
shall be increased by 0.50% per annum following such 60-day period in the case
of clause (a) above, following such 150-day period in the case of clause (b)
above, following such 180-day period in the case of clause (c) above and
following the date on which the relevant registration statement ceases to be
effective in the case of clause (d) above. The aggregate amount of such increase
from the original interest rate pursuant to these provisions shall in no event
exceed 1.00% per annum. Upon (w) the filing of the Exchange Offer Registration
Statement after the 60-day period described in clause (a) above, (x) the
effectiveness of the Exchange Offer Registration Statement after the 150-day
period described in clause (b) above, (y) the consummation of the Exchange Offer
or, if applicable, the effectiveness of the Shelf Registration Statement (as
defined in the Registration Rights Agreement), as the case may be, after the
180-day period described in clause (c) above or (z) the effectiveness of a
succeeding registration statement after the date in clause (d) above, the
interest rate borne by this Security from the date of such filing, effectiveness
or consummation, as the case may be, will be reduced to the interest rate set
forth above. The Company shall promptly provide the Trustee with notice of any
change in the interest rate borne by this Security.]*
--------
* Include only for Initial Securities.
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Securities that remain outstanding after the consummation of the
Exchange Offer and Exchange Securities issued in connection with the Exchange
Offer will be treated as a single class of securities under this Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York (which shall be the Corporate Trust Office of
the Trustee, unless the Company shall designate and maintain some other office
or agency for such purpose), or at such other office or agency of the Company as
may be maintained for such purpose, in lawful money of the United States of
America; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register.
Interest on this Security shall be computed on the basis of a year of
twelve 30-day months.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: REGAL CINEMAS, INC.
By ________________________
Name:
Title:
Attest:
By ________________________
Name:
Title:
____________________
Authorized Signature
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SECTION 204. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 1/2% [Exchange]* Senior Subordinated Notes due 2007
(the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $125,000,000, which may be
issued under an indenture (the "Indenture") dated as of September 24, 1997
between the Company, as issuer, and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as
trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
The Securities are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture and in any other agreements entered
into by the Trustee, as permitted or required by the Indenture, to acknowledge
or effectuate such subordination, to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness of the Company, whether outstanding on
the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purpose.
On or before each payment date, the Company shall deliver or cause to
be delivered to the Trustee or the Paying Agent an amount in U.S. Dollars
sufficient to pay the amount due on such payment date.
The Securities are redeemable, at the option of the Company, as a whole
or in part, upon not less than 30 nor more than 60 days' notice by first-class
mail, at any time on or after October 1, 2002, at a Redemption Price equal to
the percentage of the principal amount set forth below if redeemed during the
12-month period beginning October 1 of the years indicated together with accrued
and unpaid interest, if any, to the Redemption Date:
YEAR REDEMPTION PRICE
---- ----------------
2002............................................. 104.250%
2003............................................. 102.833
2004............................................. 101.417
2005 and thereafter.............................. 100%
--------
* Include only for Exchange Securities.
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In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control, the Company will be
required to make a Change of Control Offer, subject to certain limitations
provided in the Indenture, at a Purchase Price in cash in an amount equal to
101% of the principal amount of this Security plus accrued and unpaid interest.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
If money for the payment of the principal of (and premium, if any) or
interest on this Security remains unclaimed for two years, the Trustee or Paying
Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another person. After any such payment, Holders entitled
to the money must look only to the Company and not to the Trustee for payment.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer
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hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security Register
of the Company, upon surrender of this Security for registration of transfer at
the office or agency of the Company maintained for such purpose in The City of
New York, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more replacement Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges payable in connection with any registration of
transfer or exchange.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
A director, officer, employee or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
or the Trustee, respectively, under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such
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39
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to the Holders. No representation is made
as to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to principles of conflicts of
laws.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Company will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture. Requests may be made to:
Regal Cinemas, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1011 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 1011 of the Indenture, state the amount (must be an integral
multiple of $1,000) below:
$
---------------------.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: 1
----------
1 Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
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SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST
COMPANY,
as Trustee
Dated:
By: _______________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $125,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 303, 304, 305,
308, 906, 1011 or 1108 or pursuant to an Exchange Offer.
The Initial Securities shall be known and designated as the "8 1/2%
Senior Subordinated Notes due 2007" and the Exchange Securities shall be known
and designated as the "8 1/2% Exchange Senior Subordinated Notes due 2007". The
Stated Maturity of the Securities shall be October 1, 2007, and, subject to any
adjustment set forth therein, they shall bear interest at the rate of 8 1/2% per
annum from September 24, 1997, or the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable on April 1, 1998, and
semiannually thereafter on April 1 and October 1 in each year and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose; provided, however, that, at the
option of the Company, interest may be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Security
Register.
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The Securities shall not be redeemable, other than as provided in
Article Eleven.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 or any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any two of
the following: its Chairman, any Vice Chairman, its President, its Vice
Presidents or its Treasurer, under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall (upon Company Order) authenticate and deliver
Securities for original issue in an aggregate principal amount of up to
$125,000,000.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the Trust Indenture Act. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall be
entitled to appropriate compensation therefor pursuant to Section 606. The
Company or any of its Wholly Owned Subsidiaries incorporated in the United
States may act as Paying Agent, Registrar, co-registrar or transfer agent.
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The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with Securities.
In case the Company, pursuant to Article Eight, shall be amalgamated,
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of substantially all of its properties and assets to
any Person, and the successor Person resulting from such amalgamation,
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any of
the Securities authenticated or delivered prior to such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver replacement Securities as specified in such request for
the purpose of such exchange. If replacement Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of any Holder but without
expense to such Holder, shall provide for the exchange of all Securities at the
time Outstanding held by such Holder for Securities authenticated and delivered
in such new name.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office and in any other office or agency designated pursuant to Section 1002
being herein sometimes referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. Said office
or agency is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
replacement Securities of any authorized denomination or denominations of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations of a like aggregate
principal amount upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange (including an
exchange of Initial Securities for Exchange Securities), the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
replacement Securities which the Holder making the exchange is entitled to
receive; provided that no exchange of Initial Securities for Exchange Securities
shall occur until an Exchange Offer Registration Statement shall have been
declared effective by the Commission and the Initial Securities to be exchanged
for the Exchange Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
or for exchange or redemption, shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 303, 304, 906, 1011 or 1108 not involving any transfer or
pursuant to an Exchange Offer.
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The Company shall not be required to issue replacement Securities or
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
the Securities selected for redemption under Section 1105 and ending at the
close of business on the day of such mailing or to transfer or exchange any
Security so selected for redemption in whole or in part.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
Participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 306. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered in the name
of the Depositary for such Global Security or the nominee of such Depositary,
(ii) be deposited with, or on behalf of, the Depository or with the Trustee, as
custodian for such Depositary and (iii) bear legends as set forth in Section
202.
The Depository or its nominee shall be the Holder of the Global
Securities, and owners of beneficial interests in the Securities represented by
the Global Securities shall hold such interests pursuant to the procedures and
practices of the Depositary. Any such owner's beneficial ownership of any such
Securities will be shown only on, and the transfer of such ownership interest
shall be effected only through, records maintained by the Depositary or its
nominee. Investors in the Regulation S Global Security may hold their interests
in Regulation S Global Security through Euroclear or CEDEL, if they are
participants in such systems, or indirectly through organizations which are
participants in such systems. After the expiration of the Restricted Period (but
not earlier), investors in the Regulation S Global Security may also hold such
interests through organizations other than Euroclear or CEDEL that are
participants in the Depositary's system. Euroclear and CEDEL will hold interests
in the Regulation S Global Security on behalf of their participants through
customers' securities accounts in their respective names on the books of their
respective depositaries, which, in turn, will hold such interests in the
Regulation S Global Security in customer's securities accounts in the
depositaries' names on the books of the Depositary. All interests in a Global
Security, including those held through Euroclear or CEDEL, may be subject to the
procedures and requirements of the Depositary.
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Those interests held through Euroclear and CEDEL will be subject to the
procedures and requirements of such system. As used herein, the term "Restricted
Period" means the period of 40 consecutive days beginning on and including the
first day after the later of (i) the day that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. advises the
Company and the Trustee of the day on which the Securities are first offered to
persons other than distributors (as defined in Regulation S) and (ii) the
original issue date of the Securities.
(b) Transfers of any Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in any
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 307.
Unless (i) the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for a Global Security or ceases to be a
"Clearing Agency" registered under the Exchange Act or announces an intention
permanently to cease business or does in fact do so and a successor Depositary
is not appointed by the Company within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing with respect to a Global Security or
(iii) in the case of a Global Security held for the account of Euroclear or
CEDEL, Euroclear or CEDEL, as the case may be, is closed for business for 14
continuous Business Days or announces an intention to cease or permanently
ceases business, owners of beneficial interests in a Global Security will not be
entitled to have any portions of such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of Securities in
definitive form and will not be considered the owners or holders of the Global
Security.
(c) Securities issued in exchange for a Global Security or any portion
thereof pursuant to the last sentence of subsection (b) of this Section shall be
issued in definitive, fully registered form, without interest coupons, shall
have an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Registrar. With regard
to any Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and make available for delivery the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative
thereof. In the event of the occurrence of any of the events specified in the
last sentence of subsection (b) of this Section 306, the Company will promptly
make available to the Trustee a reasonable supply of certificated Securities in
definitive form.
(d) Except as otherwise set forth in this Indenture or a Global
Security, owners of beneficial interests in the Securities evidenced by a Global
Security will not be entitled to any
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rights under this Indenture with respect to such Global Security, and the
Depositary or its nominee may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the owner and Holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any such agent from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or its nominee or impair, as between the Depositary or its
nominee and such owners of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary or its nominee
as Holder of any Security.
SECTION 307. SPECIAL TRANSFER PROVISIONS.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Exchange Offer Registration Statement,
in each case pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Restricted Global Security to Regulation S Global
Security. If, at any time, an owner of a beneficial interest in a
Restricted Global Security deposited with the Depositary (or the
Trustee as custodian for the Depositary) wishes to transfer its
interest in such Restricted Global Security to a Person who is required
or permitted to take delivery thereof in the form of an interest in a
Regulation S Global Security, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest
for an equivalent beneficial interest in a Regulation S Global Security
as provided in this Section 307(a). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited a
beneficial interest in the Regulation S Global Security in an amount
equal to the beneficial interest in the applicable Restricted Global
Security to be exchanged, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the
participant account of the Depositary and the Euroclear or CEDEL
account (if applicable) to be credited with such increase, and (3) a
certificate substantially in the form of Exhibit A-1 hereto given by
the owner of such beneficial interest, the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the aggregate
principal amount of the applicable Restricted Global Security and to
increase or cause to be increased the aggregate principal amount of the
applicable Regulation S Global Security by the principal amount of the
beneficial interest in the Restricted Global Security to be exchanged,
to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation
S Global Security equal to the reduction in the aggregate principal
amount of the applicable Restricted Global Security, and to debit, or
cause to be debited, from the account of the Person making such
exchange or transfer the beneficial interest in the Restricted Global
Security that is being exchanged or transferred.
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(b) Regulation S Global Security to Restricted Global
Security. If, at any time, an owner of a beneficial interest in a
Regulation S Global Security deposited with the Depositary or with the
Trustee as custodian for the Depositary wishes to transfer its interest
in such Regulation S Global Security to a Person who is required or
permitted to take delivery thereof in the form of an interest in a
Restricted Global Security, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Global Security, as
provided in this Section 307(b). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from an
Agent Member, directing the Trustee, as Registrar, to credit or cause
to be credited a beneficial interest in the Restricted Global Security
equal to the beneficial interest in the Regulation S Global Security to
be exchanged, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the participant
account of the Depositary to be credited with such increase and (3) if
such transfer is requested prior to the expiration of the Restricted
Period, a certificate in the form of Exhibit A-2 attached hereto given
by the owner of such beneficial interest, the Trustee, as Registrar,
shall instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount of such Regulation S Global Security and to
increase or cause to be increased the aggregate principal amount of the
applicable Restricted Global Security by the principal amount of the
beneficial interest in the Regulation S Global Security to be
exchanged, and the Trustee, as Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the applicable Restricted Global Security equal
to the reduction in the aggregate principal amount of such Regulation S
Global Security and to debit or cause to be debited from the account of
the Person making such transfer the beneficial interest in the
Regulation S Global Security that is being transferred. After the
expiration of the Restricted Period, the certificate described in
clause (3) above shall no longer be required to effect transfers
pursuant to this Section 307(b).
(c) Transfers of U.S. Physical Securities for Restricted
Global Security or Regulation S Global Security. If the holder of a
U.S. Physical Security wishes at any time to transfer such holder's
U.S. Physical Security to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the Regulation S Global
Security or the Restricted Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with
the provisions of this Section 307(c). Upon receipt by the Trustee of
(1) instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to be
credited a beneficial interest in the Regulation S Global Security or
Restricted Global Security, as the case may be, in a principal amount
equal to that of the U.S. Physical Securities to be so transferred, (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the
Depositary (and the Euroclear or CEDEL account, as applicable) to be
credited with such beneficial interest and (3) a
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certificate in substantially the form set forth in Exhibit A-3, given
by the holder of such U.S. Physical Security, the Trustee, as Security
Registrar, shall instruct the Depositary to increase the principal
amount of the Regulation S Global Security or the Restricted Global
Security, as the case may be, by the principal amount of the U.S.
Physical Security to be so transferred, and to cancel or cause to be
canceled such U.S. Physical Security.
(d) Restricted Global Security or U.S. Physical Security to
Regulation S Global Security After Two Years. If the holder of a
beneficial interest in a Restricted Global Security or U.S. Physical
Security wishes at any time after the second anniversary of the date of
original issuance of the Securities to (A) transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Regulation S Global Security or (B) to exchange such
interest for a beneficial interest in a Regulation S Global Security,
such transfer or exchange may be effected, subject to the Applicable
Procedures, only in accordance with this Section 307(d). Upon receipt
by the Trustee of (1) in the case of a transfer or exchange of an
interest in the Restricted Global Security or a U.S. Physical Security,
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited to
a beneficial interest in the Regulation S Global Security in an amount
equal to that the beneficial interest in the Restricted Global Security
to be so transferred or exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary (and, if
applicable, the Euroclear or CEDEL account, as the case may be) to be
credited with such beneficial interest and (3) a certificate
substantially in the form of Exhibit A-4 hereto given by the holder of
such beneficial interest, the Trustee, as Registrar, shall (i) in the
case of a transfer or exchange of an interest in the Restricted Global
Security, instruct the Depositary to reduce the principal amount of the
Restricted Global Security, and to increase the principal amount of the
Regulation S Global Security, by the principal amount of the beneficial
interest in the Restricted Global Security to be so transferred or
exchanged, and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
Regulation S Global Security having a principal amount equal to the
amount by which the principal amount of the Restricted Global Security
was reduced upon such transfer or exchange or (ii) in the case of a
transfer or exchange of a U.S. Physical Security, cancel such U.S.
Physical Security and increase the principal amount of the Regulation S
Global Security accordingly.
(e) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this
Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 306 or this Section 307. The
Company shall have the right to inspect
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and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.
SECTION 308. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
make available for delivery, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a replacement Security of
like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute a contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the interest rate borne
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by the Securities, to the extent lawful (such defaulted interest and interest
thereon herein collectively called "Defaulted Interest"), shall forthwith cease
to be payable to the Holder on the Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Subsection provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date. In the name
and at the expense of the Company, the Trustee shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities)
are registered on such Special Record Date and shall no longer be
payable pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Subsection, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
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SECTION 310. PERSONS DEEMED OWNERS.
Prior to the time of due presentment for registration of transfer, the
Company or the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 309) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 311. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be made available for delivery to the Trustee and shall be promptly cancelled by
it. The Company shall deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be delivered to the Company if by a Company Order the
Company shall direct that cancelled Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360 day
year of twelve 30-day months.
SECTION 313. CUSIP NUMBERS
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness and
accuracy of such numbers either as printed on the Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or such omission of such numbers.
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ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 402 or Section 403 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article Four.
SECTION 402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 402, the Company shall be deemed to have been discharged from
its obligations with respect to all Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 405 and the other Sections of this Indenture referred to in (A) and (B)
below, and to have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities to receive solely from the trust fund described in
Section 404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 308, 1002 and 1013, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations in
connection therewith, including the Company's obligations under Section 606
hereof and (D) this Article Four. Subject to compliance with this Article Four,
the Company may exercise its option under this Section 402 notwithstanding the
prior exercise of its option under Section 403 with respect to the Securities.
SECTION 403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 403, the Company shall be released from its obligations under
any covenant contained in Articles Eight and Twelve and in Sections 1004 through
1012 with respect to the Outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Securities shall thereafter be deemed to be not "Outstanding" for the
purposes 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 (it being
understood that such Securities shall not be deemed Outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means
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that, with respect to the Outstanding Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such 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 501(c) and 501(d), but, except as specified above, the remainder
of this Indenture (including Section 606 hereof) and such Securities shall be
unaffected thereby. In addition, upon the Company's exercise under Section 401
of the option applicable to Section 403, Sections 501(c) through (f) shall not
constitute Events of Default.
SECTION 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
402 or Section 403 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Four applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) cash in U.S. Dollars in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, cash in U.S. Dollars in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities. Before
such a deposit, the Company may give the Trustee, in accordance with
Section 1103 hereof, a notice of its election to redeem all of the
Outstanding Securities at a future date in accordance with Article
Eleven hereof, which notice shall be irrevocable. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S.
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Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Section 501(g),
(h) or (i) is concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound and is not prohibited by Article Twelve
hereof.
(4) In the case of an election under Section 402, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (y) since
September 24, 1997, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such
defeasance and will be subject to United States federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(5) In the case of an election under Section 403, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that the Holders of the Outstanding Securities
will not recognize income, gain or loss for United States federal
income tax purposes as a result of such covenant defeasance and will be
subject to United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an Opinion
of Counsel in the United States to the effect that such deposit shall
not cause the Trustee or the trust so created to be subject to the
Investment Company Act of 1940.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company
pursuant to its election under Section 402 or 403 was not made by the
Company with the intent of preferring the Holders over other
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creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United States,
each stating that all conditions precedent relating to either the
defeasance under Section 402 or the covenant defeasance under Section
403 (as the case may be) have been complied with.
Notwithstanding the provisions of this Article Four, the obligations of
the Company to the Trustee under Section 606 shall survive.
SECTION 405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 405, the "Trustee") pursuant to Section 404 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 (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) 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 on an after-tax basis
against any tax, fee or other charge imposed on or assessed against the cash or
U.S. Government Obligations deposited pursuant to Section 404 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 404 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 404(1)), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
SECTION 406. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 405, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this
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Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 402 or 403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 405; provided, however, that, if the Company makes any
payment of principal of (or premium, if any) or interest on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest on any Security
when it becomes due and payable and continuance of such default for a
period of 30 days;
(b) default in the payment of the principal of or premium, if
any, on any Security at its Maturity (upon acceleration, optional
redemption, required purchase or otherwise);
(c) default in the payment of principal and interest when due
and payable on any Security required to be repurchased pursuant to an
Offer to Purchase upon a Change of Control;
(d) default in the performance, or breach, of any covenant or
warranty of the Company contained in this Indenture (other than a
default in the performance, or breach, of a covenant or warranty which
is specifically dealt with in clause (a), (b) or (c) above) and
continuance of such default or breach for a period of 60 days after
written notice shall have been given to the Company by the Trustee or
to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Securities then Outstanding;
(e) (A) one or more defaults in the payment of principal of or
premium, if any, on Indebtedness of the Company or any Subsidiary,
aggregating $5.0 million or more, when the same becomes due and payable
at the stated maturity thereof, and such default or defaults shall have
continued after any applicable grace period and shall not have been
cured or waived or (B) Indebtedness of the Company or any Subsidiary
aggregating $5.0
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million or more shall have been accelerated or otherwise declared due
and payable, or required to be prepaid or repurchased (other than by
regularly scheduled prepayment) prior to the stated maturity thereof;
(f) any holder of any Indebtedness in excess of $5.0 million
in the aggregate of the Company or any Subsidiary shall notify the
Trustee of the intended sale or disposition of any assets of the
Company or any Subsidiary that have been pledged to or for the benefit
of such Person to secure such Indebtedness or shall commence
proceedings, or take action (including by way of set-off) to retain in
satisfaction of any such Indebtedness, or to collect on, seize, dispose
of or apply, any such asset of the Company or any Subsidiary pursuant
to the terms of any agreement or instrument evidencing any such
Indebtedness of the Company or any Subsidiary or in accordance with
applicable law;
(g) one or more final judgments or orders shall be rendered
against the Company or any Subsidiary for the payment of money, either
individually or in an aggregate amount, in excess of $5.0 million and
shall not be discharged and either (A) an enforcement proceeding shall
have been commenced by any creditor upon such judgment or order or (B)
there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, was not in effect; and
(h) the Company or any Subsidiary pursuant to or under or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding;
(2) consents to the entry of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case
against it;
(3) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(4) makes a general assignment for the benefit of its
creditors or files a proposal or other scheme of arrangement
involving the rescheduling or composition of its indebtedness;
(5) files a petition in bankruptcy or an answer or
consent seeking reorganization or relief; or
(6) consents to the filing of such petition in
bankruptcy or the appointment of or taking possession by a
Custodian; or
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(i) a court of competent jurisdiction in any involuntary case
or proceeding enters a Bankruptcy Order against the Company or any
Subsidiary, and such Bankruptcy Order remains unstayed and in effect
for 60 consecutive days; or
(j) a Custodian shall be appointed out of court with respect
to the Company or any Subsidiary, or with respect to all or any
substantial part of the property of the Company or any Subsidiary.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law or any other person with like powers. "Bankruptcy Order"
means any court order made in a proceeding pursuant to or within the meaning of
any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or
providing for liquidation, winding up, dissolution or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(h), (i) or (j)) occurs and is continuing, then and in every such
case the Trustee, by notice to the Company, or the Holders of not less than 25%
in principal amount of the Securities Outstanding, by notice to the Company and
the Trustee, may declare the principal of all the Securities to be due and
payable immediately. If an Event of Default specified in Section 501(h), (i) or
(j) occurs and is continuing, then the principal of all the Securities 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. The Company will deliver to
the Trustee, within 10 days after the occurrence thereof, notice of any default
or acceleration referred to in Sections 501(c) and 501(d).
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Securities Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited, or caused to be paid or
deposited, with the Trustee a sum sufficient to pay
(1) all overdue interest on all Securities,
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(2) the principal of (and premium, if any, on) any
Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities,
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities, and
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default, other than the non-payment of
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because an Event of Default
specified in Section 501(e) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such Indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when it becomes due and payable and such default continues for
a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall
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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.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such 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
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due to
the Trustee under Section 606.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any proposal,
plan of reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606; and
SECOND: Subject to Article Twelve, to the payment of the
amounts then due and unpaid upon the Securities for principal (and
premium, if any) and interest, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
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(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture except in the manner provided in
this Indenture and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right as between itself and the Company, which is
absolute and unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 309) interest on the respective due dates
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 308, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal liability
or be prejudicial to Holders not joining therein, and
(b) subject to the provisions of Trust Indenture Act Section
315, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(b) arising from a failure to make or consummate a Change of
Control Offer in accordance with the provisions of Section 1011 hereof,
or
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(c) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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SECTION 516. APPLICATION OF TRUST INDENTURE ACT TO THIS INDENTURE.
Prior to the effectiveness of the Registration Statement, this
Indenture shall incorporate and be governed by the provisions of the Trust
Indenture Act. After the effectiveness of the Registration Statement, this
Indenture shall be subject to the provisions of the Trust Indenture Act that are
required to be a part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders; and provided further that, in the case of any default or breach of the
character specified in Section 501(c), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through (d), which provisions are incorporated by reference herein:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any
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action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it;
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
(j) the Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and
this Indenture.
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SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, and, subject to Trust Indenture Act Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 605. 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 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing by the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel of its selection), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense including taxes (other than
taxes based upon, measured by or determined by the income of the
Trustee) incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this
trust,
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including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Trustee to notify the Company shall not relieve the Company of its
obligations hereunder.
The obligations of the Company under this Section shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article 12. As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim and lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 606, except with respect to funds
held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(f) or Section 501(g), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act provided, however, that there shall be excluded from the
operation of Trust Indenture Act Section 310 (b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in Trust Indenture Act Section 310 (b) (1) are met.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under Trust Indenture Act Section 310(a)(1) and which shall
have a combined capital and surplus of at least $50,000,000 and have its
Corporate Trust Office in any state of the United States of America to the
extent there is such an institution eligible and willing to serve. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
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combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(b) The Trustee, or any successor Trustee, may resign at any time by
giving written notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee or the
Holders of a majority in principal amount of the Outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 608
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal
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or incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with Section 610, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of the
Securities and so accepted appointment, the Holder of any Security who has been
a bona fide Holder for at least six months may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear in the Security Register and to
an authorized representative of the holders of Designated Senior Indebtedness.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after such
removal, the removed Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all amounts due
it under Section 606, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee, and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder subject to the claim and lien
provided for in Section 606. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided
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such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases, such Securities shall have the full force to be and effect
provided for anywhere in the Securities or this Indenture.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided no such list need be furnished if the Trustee shall be the
Security Registrar.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders in accordance with this Section 701,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under this Section 701.
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of such
May 15 if required by Trust Indenture Act Section 313(a).
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SECTION 703. REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to Subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not, in a single transaction or through a series of
related transactions, (i) consolidate with or merge with or into any other
Person or (ii) directly or indirectly, sell, assign, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to
any Person unless:
(a) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquired such properties
and assets of the Company by assignment, transfer, lease or other
disposition (the "Surviving Entity") shall be a corporation duly
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall, in
either case, expressly assume by supplemental indenture, all the
obligations of the Company under the Securities and the Indenture,
(b) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing, and
(c) immediately after giving effect to such transaction on a
pro forma basis, the Surviving Entity could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
1007 hereof.
In connection with any consolidation, merger, transfer or lease
contemplated hereby, the Company shall deliver, or cause to be delivered, to the
Trustee, in the form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or lease and the supplemental indenture in
respect thereto comply with the provisions described herein and that all
conditions precedent herein provided for or relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation, merger or sale, assignment, transfer, lease or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 801, the Surviving Entity shall succeed to, shall be
substituted for and may exercise every right and power of the Company under the
Securities and this Indenture, with the same effect as if such successor
corporation had been named as the Company herein. In the event of any
transaction (other than
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a lease) described and listed in Section 801 in which the Company is not the
Surviving Entity, the Surviving Entity formed or remaining shall succeed to, be
substituted for and may exercise every right and power of the Company, and the
Company shall be discharged from all obligations and covenants under the
Securities and this Indenture.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. SUPPLEMENTAL INDENTURES AND AMENDMENTS
WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(b) to add to the covenants of the Company, for the benefit of
the Holders, or to surrender any right or power herein or in the
Securities conferred upon the Company;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture; provided that, in
each case, such other provisions shall not adversely affect the
interests of the Holders in any material respect;
(d) to secure the Securities; or
(e) to make any change in Article Ten hereof or in Article
Twelve or the related definitions herein contained that would limit or
terminate the benefits available to any holder of Senior Indebtedness
(or authorized representatives therefor) under such Article;
(f) to make any other change that does not adversely affect
the rights of any Holder; or
(g) to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the
Trust Indenture Act, as amended.
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Notwithstanding the foregoing, no amendment may be made to
Article Twelve hereof that adversely affects the rights of any holder of any
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or their representative) consent to such change.
SECTION 902. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH
CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities (including consents
obtained in connection with a tender offer or exchange offer for the
Securities), by Act of such Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may enter
into one or more indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of waiving or modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental
indenture, amendment or waiver shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the coin or currency in which
the principal of any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(b) reduce the amount of, or change the coin or currency of,
or impair the right to institute suit for the enforcement of, the
Purchase Price that would be payable in connection with a Change of
Control Offer; or
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(d) modify any of the provisions of this Section or Sections
513 and 1014, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby; or
(e) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner adverse to any Holder.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Trust Indenture Act Sections 315(a) through (d) and Section 602
hereof) shall be fully protected in relying upon, an Officers' Certificate and
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 107, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
Principal of (premium, if any) and interest shall be considered paid on
the date due if as of 10:00 a.m. (New York City time) on such date the Trustee
or the Paying Agent if other than the Company or an Affiliate of the Company
holds in accordance with this Indenture money in immediately available funds
sufficient to pay all principal (premium, if any) and interest then due and the
Trustee, the Paying Agent or the Affiliate of the Company, as the case may be,
is not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain, in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be such
office or agency of the Company, unless the Company shall designate and maintain
some other office or agency for one or more of such purposes. The Company will
give prompt written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
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SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum in same day funds (or New York Clearing House funds if such deposit is made
prior to the date on which such deposit is required to be made) sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and
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remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request unless an abandoned property law designates another person, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or mail to each such Holder or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and corporate power and authority of the Company and each Subsidiary;
provided, however, that the Company shall not be required to preserve any such
corporate existence and corporate power and authority if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries taken as a whole.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a Lien upon the property of the Company or any Subsidiary
that could produce a material adverse effect on the consolidated financial
condition of the Company; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all
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times, except, in every case, as and to the extent that the Company may be
prevented by fire, strikes, lockouts, acts of God, inability to obtain labor or
materials, governmental restrictions, enemy action, civil commotion or
unavoidable casualty or similar causes beyond the control of the Company;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 1007. LIMITATION ON CONSOLIDATED INDEBTEDNESS.
The Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or guarantee, or in any other manner become directly or
indirectly liable for the payment of, any Indebtedness (excluding Permitted
Indebtedness) unless at the time of such event and after giving effect thereto
on a pro forma basis the Company's Consolidated EBITDA Ratio for the four (4)
full fiscal quarters immediately preceding such event, taken as one period
calculated on the assumption that such Indebtedness had been incurred on the
first day of such four-quarter period, is greater than or equal to 2.0:1.
SECTION 1008. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
(a) declare or pay any dividend on, or make any distribution
in respect of, any shares of the Capital Stock of the Company or any of
its Subsidiaries (excluding dividends or distributions payable in
shares of its Capital Stock or in options, warrants or other rights to
purchase such Capital Stock, but including dividends or distributions
payable in Redeemable Capital Stock or in options, warrants or other
rights to purchase Redeemable Capital Stock (other than dividends on
such Redeemable Capital Stock payable in shares of such Redeemable
Capital Stock)) held by any Person other than the Company or any of its
Wholly Owned Subsidiaries; or
(b) purchase, redeem or acquire or retire for value any
Capital Stock of the Company or any Affiliate thereof (other than any
Wholly Owned Subsidiary of the Company) or any options, warrants or
other rights to acquire such Capital Stock; (such payments or any other
actions described in (a) and (b) above are collectively referred to as
"Restricted Payments") unless at the time of and after giving effect to
the proposed Restricted Payment (the amount of any such Restricted
Payment, if other than cash, as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board
Resolution), (1) no Default or Event of Default shall have occurred and
be continuing, (2) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions
of Section 1007 and (3) the aggregate amount of all Restricted Payments
declared
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or made after the Closing Date (including the proposed Restricted Payment) does
not exceed the sum of:
(i)(A) Consolidated EBITDA for the Restricted Payments
Computation Period minus (B) 2 times Consolidated Interest Expense
for the Restricted Payments Computation Period;
(ii) the aggregate net proceeds, including the Fair Market
Value of property other than cash (as determined by the Board of
Directors, whose determination shall be conclusive, except that for any
property whose Fair Market Value exceeds $10 million such Fair Market
Value shall be confirmed by an independent appraisal obtained by the
Company), received after the Closing Date by the Company from the
issuance or sale (other than to any of its Subsidiaries) of shares of
Capital Stock of the Company (other than Redeemable Capital Stock) or
warrants, options or rights to purchase such shares of Capital Stock;
(iii) the aggregate net proceeds, including the Fair Market
Value of property other than cash (as determined by the Board of
Directors, whose determination shall be conclusive, except that for any
property whose Fair Market Value exceeds $10 million such Fair Market
Value shall be confirmed by an independent appraisal obtained by the
Company), received after the Closing Date by the Company from debt
securities that have been converted into or exchanged for Capital Stock
of the Company (other than Redeemable Capital Stock) to the extent such
debt securities were originally sold for such net proceeds plus the
aggregate cash received by the Company at the time of such conversion;
and
(iv) $100 million.
Notwithstanding the foregoing limitation, (a) the Company may (i) pay
dividends on its Capital Stock within sixty days of the declaration thereof if,
on the declaration date, such dividends could have been paid in compliance with
the foregoing limitation and (ii), acquire, redeem or retire Capital Stock in
exchange for, or in connection with a substantially concurrent issuance of,
Capital Stock of the Company (other than Redeemable Capital Stock) and (b) the
term "Restricted Payments" shall not include any dividend on, or distribution in
respect of, any shares of the Capital Stock of a Person that is acquired by the
Company in a business combination accounted for as a pooling of interests in
accordance with Accounting Principles Board Opinions No. 16 (or any successor
thereto) ("APB 16") provided such dividend or distribution is declared and paid
prior to the date of such acquisition and was not in contemplation of such
acquisition within the requirements and interpretations of APB 16.
SECTION 1009. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
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(a) The Company shall not, and shall 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
of the Company (other than a Wholly Owned Subsidiary of the Company) involving
aggregate consideration in excess of $5.0 million unless (a) such transaction or
series of transactions is on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than would be available at the time of such
transaction or series of transactions in a comparable arm's-length transaction
with a Person that is not an Affiliate of the Company, (b) such transaction or
series of transactions is in the best interests of the Company and (c) with
respect to a transaction or series of transactions involving aggregate
consideration in excess of $50.0 million, a majority of disinterested members of
the Board of Directors determines that such transaction or series of
transactions complies with clauses (a) and (b) above, as evidenced by a Board
Resolution.
(b) Notwithstanding the foregoing limitation, the Company and its
Subsidiaries may enter into or suffer to exist the following: (i) any
transaction pursuant to any contract in existence on the Closing Date; (ii) any
Restricted Payment permitted to be made pursuant to the provisions of Section
1008; (iii) any transaction or series of transactions between the Company and
one or more of its Subsidiaries or between two or more of its Subsidiaries
(provided that no more than 5% of the Capital Stock in any such Subsidiary is
owned, directly or indirectly (other than by direct or indirect ownership of
Capital Stock in the Company), by any Affiliate of the Company other than a
Subsidiary) and (iv) the payment of compensation (including amounts paid
pursuant to employee benefit plans) for the personal services of officers,
directors and employees of the Company or any of its Subsidiaries.
SECTION 1010. LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
The Company will not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Indebtedness and senior in right of payment to
the Securities.
SECTION 1011. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company will be
required to make an offer (a "Change of Control Offer") to purchase all
Outstanding Securities at a purchase price equal to 101% of their principal
amount plus accrued and unpaid interest, if any, to the date of purchase.
Within 30 days following the date upon which the Change of Control
occurred, the Company must send, by first class mail, a notice to each Holder,
with a copy to the Trustee, which notice shall govern the terms of the Change of
Control Offer. Such notice will state, among other things, the purchase date,
which must be no earlier than 30 days nor later than 60 days from the date such
notice is mailed, other than as may be required by law (the "Change of Control
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Payment Date"). The Change of Control Offer is required to remain open for at
least 20 Business Days and until the close of business on the Change of Control
Payment Date.
In the event that the Company makes a Change of Control Offer to
purchase the Securities pursuant to this Section 1011, the Company will comply
with any applicable securities laws and regulations, including any applicable
requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act.
SECTION 1012. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is subject to the reporting requirements of
the Exchange Act, or any successor provision thereto, the Company will furnish
without cost to each Holder of Securities and file with the Commission and the
Trustee (i) within 135 days after the end of each fiscal year of the Company (x)
audited year-end consolidated financial statements (including a balance sheet,
income statement and statement of cash flows) prepared in accordance with GAAP
and (y) the information described in Item 303 of Regulation S-K under the
Securities Act, with respect to such period, and (ii) within 60 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Company, (x) unaudited quarterly consolidated financial statements (including a
balance sheet, income statement and statement of cash flows) prepared in
accordance with GAAP and (y) the information described in Item 303 of Regulation
S-K under the Securities Act, with respect to such period. In addition, the
Company will furnish to any prospective purchaser of Securities or beneficial
owner of Securities in connection with any sale thereof the information required
by Rule 144A(d)(4) under the Securities Act, until such time as the Company has
either exchanged the Securities for the Exchange Securities or until such time
as the Holders thereof have disposed of such Securities pursuant to a Shelf
Registration Statement.
SECTION 1013. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 30 days after the end
of each fiscal year of the Company ending after the date hereof (which on the
date hereof ends on the Thursday closest to December 31), a brief certificate of
its principal executive officer, principal financial officer or principal
accounting officer stating that a review of the Company's activities during such
year and of performance under this Indenture has been made under his supervision
and that, to such officer's knowledge, the Company is in compliance with all
covenants and conditions to be complied with by it under this Indenture. For
purposes of this Section 1013, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
When a Default has occurred and is continuing or if the Trustee, any
Holder or the trustee for or the holder of any other evidence of Indebtedness of
the Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default, the Company shall deliver to the Trustee an
Officers' Certificate specifying such Default, notice or other action within 10
Business Days of its occurrence.
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SECTION 1014. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 to 1012, if before the time for
such compliance, the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding shall, by Act of such Holders, waive such
compliance in such instance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1015. FALL-AWAY OF CERTAIN COVENANTS.
In the event that the Securities attain Investment Grade Status and no
Event of Default or Default shall have occurred and be continuing (the
occurrence of the foregoing events, being collectively referred to as the
"Fall-away Event"), the covenants described under Sections 801(c) and 1007 to
1010 will no longer be applicable to the Company and its Subsidiaries; provided
that the Company delivers to the Trustee (i) an Officers' Certificate certifying
that the Fall-away Event shall have occurred and (ii) a letter from ▇▇▇▇▇'▇ or
S&P, as the case may be, dated not more than three days prior to the date such
covenants are to become subject to this Section 1015, verifying the Investment
Grade Status of the Securities. As a result, upon the occurrence of the
Fall-away Event the Securities will be entitled to substantially no covenant
protection.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the Company, as a
whole or in part and from time to time, at any time on or after October 1, 2002
subject to the conditions and at the Redemption Prices specified in the form of
Security in Sections 203, 204 and 205 hereto, together with accrued and unpaid
interest to the Redemption Date.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
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SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem the Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by it (unless a shorter notice period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from the
Company to the effect that such redemption shall comply with the conditions
herein.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal of Securities; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security not
redeemed to less than $1,000. Securities and any portions of such Securities
selected by the Trustees shall be in amounts of $1,000 or integral multiples
thereof.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state (including CUSIP number, if any):
(a) the principal amount of each Security held by such Holder
to be redeemed;
(b) the Redemption Date;
(c) the Redemption Price and the amount of accrued interest,
if any, to be paid;
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(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, that such Securities
must be surrendered to the Paying Agent to collect the Redemption Price
plus accrued interest, if any, and that interest thereon shall cease to
accrue on and after said date;
(e) the CUSIP number;
(f) if fewer than all of the Outstanding Securities are to be
redeemed, then the identification and principal amounts at Maturity of
the particular Securities (or portions thereof) to be redeemed as well
as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such
partial redemption;
(g) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the Redemption Date, and upon surrender of such Security, a new
Security or Securities in the aggregate principal amount equal to the
unredeemed portion thereof will be issued; and
(h) the name and address of the Paying Agent and the place or
places where such Securities are to be surrendered for payment of the
Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at its request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent, prior to 11:00 a.m.,
New York City time (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003), an amount of money in
same day funds (or New York Clearing House funds if such deposit is made prior
to the applicable Redemption Date) sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Once notice of redemption is mailed in accordance with Section 1105,
such notice of redemption shall be irrevocable and Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price plus accrued interest as of such date, if any. Upon surrender to the
Trustee or Paying Agent, such Securities called for redemption shall be paid at
the Redemption Price plus accrued interest thereon to the Redemption Date, but
installments of interest, the maturity of which is on or prior to the Redemption
Date, shall be payable to
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Holders of record at the close of business on the relevant record dates referred
to in the Securities. Interest shall accrue on or after the Redemption Date and
shall be payable only if the Company defaults in payment of the Redemption
Price. If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal thereof (and premium, if any, thereon)
shall, until paid, bear interest from the Redemption Date at the rate borne by
such Security.
SECTION 1108. SECURITIES PURCHASED IN PART.
Any Security that is to be purchased only in part shall be surrendered
to the Paying Agent at the office of the Paying Agent or to the office or agency
referred to in Section 1002 (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, a replacement Security or Securities, of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the principal amount of the Security so surrendered
that is not purchased.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the Obligations in respect of
the Securities (the "Subordinated Obligations") are hereby expressly made
subordinate and postponed to and subject in right of payment as provided in this
Article to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness. All provisions of this Article Twelve shall be subject to Section
1214.
This Article 12 shall constitute a continuing offer to all Persons who,
in reliance upon such Article, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligee hereunder and they or
each of them may enforce such provisions.
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its assets,
whether voluntary or involuntary from any source, or (b) any
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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, then and in any such event:
(1) the holders of Senior Indebtedness shall receive payment
in full in cash or Cash Equivalents of all amounts due on or in respect
of all Senior Indebtedness, or provision shall be made for such payment
in full in cash or Cash Equivalents to the satisfaction of the holders
of Senior Indebtedness, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or
character from any source (other than a payment or distribution in the
form of equity securities or subordinated securities of the Company or
any successor obligor with respect to the Senior Indebtedness provided
for by a plan of reorganization or readjustment that, in the case of
any such subordinated securities, are subordinate in right of payment
to all Senior Indebtedness that may at the time be outstanding to at
least the same extent as the Securities are so subordinated as provided
in this Article (such equity securities or subordinated securities
hereinafter being "Permitted Junior Securities")) on account of the
Subordinated Obligations or on account of the purchase or redemption or
other acquisition of Securities; and
(2) any payment or distribution of assets of the Company of
any kind or character from any source, whether in cash, property or
securities (other than a payment or distribution in the form of
Permitted Junior Securities), including by way of set-off or
enforcement of any guarantee or otherwise, which the Trustee or the
Holders would be entitled to receive but for the provisions of this
Article shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their authorized representative
or representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full in
cash or Cash Equivalents of all Senior Indebtedness of the Company
remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor to the satisfaction of the holders
of the Senior Indebtedness, to or for the holders of such Senior
Indebtedness; and
(3) any Taxes that have been withheld or deducted from any
payment or distribution in respect of the Securities, or any Taxes that
ought to have been withheld or deducted from any such payment or
distribution that have been remitted to the relevant taxing authority,
shall not be considered to be an amount that a Holder or the Trustee is
entitled to receive for the purposes of Section 1202(2).
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The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer, lease or other disposal of its properties
and assets substantially as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of creditors
or marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires such assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer, lease or disposal, comply with the conditions set forth in Article
Eight.
SECTION 1203 SUSPENSION OF PAYMENT WHEN SENIOR
INDEBTEDNESS IN DEFAULT.
(a) Unless Section 1202 shall be applicable, upon (1) the occurrence of
a Payment Default and (2) receipt by the Trustee from the Company or a holder of
Senior Indebtedness of written notice of such occurrence, no payment (other than
any payments made pursuant to the provisions contained in Sections 402 and 403
from monies or U.S. Government Obligations previously deposited with the
Trustee) or distribution of any assets of the Company of any kind or character
from any source, whether in cash, property or securities (other than Permitted
Junior Securities), shall be made by the Company including by way of set-off or
enforcement of any guarantee or otherwise, on account of the Subordinated
Obligations or on account of the purchase or redemption, deposit for defeasance
or other acquisition of Securities unless and until such Payment Default shall
have been cured or waived in writing or shall have ceased to exist or such
Senior Indebtedness shall have been discharged or paid in full in cash or Cash
Equivalents, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 1202 shall be applicable, upon (1) the occurrence of
a Non-payment Default and (2) receipt by the Trustee from an authorized
representative of the holders of Designated Senior Indebtedness of written
notice of such occurrence, then no payment (other than any payments made
pursuant to the provisions contained in Sections 402 and 403 from monies or U.S.
Government Obligations previously deposited with the Trustee) or distribution of
any assets of the Company of any kind or character from any source, whether in
cash, property or securities (other than Permitted Junior Securities), shall be
made by the Company including by way of set-off or enforcement of any guarantee
or otherwise, on account of the Subordinated Obligations or on account of the
purchase or redemption, deposit for defeasance or other acquisition of
Securities for a period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee of such notice from an authorized representative of the
holders of Designated Senior Indebtedness or the Company at the direction of the
such representative unless and until (subject to any blockage of payments that
may then be in effect under subsection (a) of this Section) (w) more than 179
days shall have elapsed since receipt of such written notice by the Trustee, (x)
such Nonpayment Default shall have been cured or waived in writing or shall have
ceased to exist or such Designated Senior Indebtedness is discharged or shall
have been paid in full in cash or Cash Equivalents, (y)
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such Designated Senior Indebtedness has been discharged or paid in full in cash
or Cash Equivalents or (z) such Payment Blockage Period shall have been
terminated by written notice to the Trustee from an authorized representative of
the holders of Designated Senior Indebtedness initiating such Payment Blockage
Period or from the holders of at least a majority in principal amount of such
Designated Senior Indebtedness ), after which, in the case of clause (w), (x),
(y) or (z), the Company shall resume making any and all required payments in
respect of the Securities, including any missed payments. Notwithstanding any
other provision of this Indenture, 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 clause (2) above (the "Initial Blockage Period"). No more than
one Payment Blockage Period may be commenced during any period of 365
consecutive days calculated from the day on which the Payment Blockage Period
began. Notwithstanding any other provision of this Indenture, no event of
default with respect to Designated Senior Indebtedness which existed or was
continuing on the date of the commencement of any Payment Blockage Period
initiated by an authorized representative of the holders of Designated Senior
Indebtedness for such Designated Senior Indebtedness shall be, or be made, the
basis for the commencement of a second Payment Blockage Period for such
Designated Senior Indebtedness, whether or not within the Initial Blockage
Period, unless such event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of this
Section, the Company shall make any payment to the Trustee (which is not paid
over to Holders of Securities) prohibited by the foregoing provisions of this
Section, then and in such event such payment shall be paid over to the
authorized representatives of such Designated Senior Indebtedness initiating the
Payment Blockage Period, to be held in trust for distribution to the holders of
Senior Indebtedness or, to the extent amounts are not then due in respect of
Senior Indebtedness, promptly returned to the Company, or otherwise as a court
of competent jurisdiction shall direct.
SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any event referred to in clause (a), (b) or (c) of Section 1202 or
under the conditions described in Section 1203, from making payments at any time
of principal of (and premium, if any) or interest on the Securities.
SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness in cash or
Cash Equivalents, the Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company which by its express
terms is subordinated and postponed to Senior Indebtedness to the same extent as
the Securities are subordinated and postponed and which is entitled to like
rights of subrogation) to the rights of the holders of such Senior Indebtedness
to the extent that payment of Senior Indebtedness has been made under Section
1202 of this Indenture from amounts otherwise payable to Holders of the
Securities, to receive payments and distributions
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of assets of the Company of any kind or character from any source, whether in
cash, property or securities applicable to the Senior Indebtedness until the
Subordinated Obligations shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior Indebtedness
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, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be or be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article 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 on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall:
(a) impair, as between the Company 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
(and 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 other than the
holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon
default under this Indenture including filing and voting claims in any
proceeding under any Bankruptcy Law, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise
of any such remedy.
For greater certainty, if the Trustee or the Holder of any Security
shall have received any payment or distribution of assets of the Company of any
kind or character from any source, whether in cash, property or securities, to
which neither the Trustee nor the Holder is, at the time of such receipt,
entitled pursuant to the terms of this Indenture read without reference to this
Article Twelve, such payment or distribution shall not be subject to Section
1202 and shall be promptly remitted by the Trustee or the Holder of the
Security, as the case may be, to the Company.
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SECTION 1207. 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 acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes. Upon the written direction of the Company and upon being furnished
with an Officers' Certificate stating that one or more named persons are holders
of Senior Indebtedness and specifying the amount and nature of such Senior
Indebtedness, the Trustee, from time to time, for and on behalf of all present
and future Holders of the Securities, shall execute and deliver deeds of
subordination in favor of the person or persons named or referred to in such
Officers' Certificate providing that such person or persons and his or their
successors or assigns are entitled to all the rights and benefits of this
Article as the holder or holders of Senior Indebtedness. An executed counterpart
of each such deed shall be delivered by the Trustee to the Company and another
such counterpart shall be retained by the Trustee. Nothing contained in this
Section 1207 shall impair the rights of any holders of Senior Indebtedness in
whose favor such a deed of subordination has not been so executed and delivered.
SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior Indebtedness
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 the Trustee or by any act or failure to act by any such holder, or by any
non-compliance by the Company or the Trustee 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 in any way limiting the generality of subsection (a) of
this Section, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, 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,
the terms of Senior Indebtedness or the terms of any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding (including
any increase in the aggregate principal amount of any indebtedness thereunder,
it being understood that any such additional indebtedness shall not constitute
Senior Indebtedness to the extent incurred in violation of Section 1007 of this
Indenture); (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection of Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against the Company and/or any
other Person.
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(c) If the Trustee on behalf of the Holders or any Holders should fail
to file a proof of claim in any bankruptcy, insolvency, receivership or similar
proceeding relating to the Company at least 30 days before the expiration of the
time to file such claim or claims, each holder of Senior Indebtedness (or its
representative) is hereby authorized to file an appropriate claim for and on
behalf of all or any of the Holders.
SECTION 1209. NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to it which would prohibit the making of any payment or distribution
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company and an authorized representative for the holders of
Senior Indebtedness or any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, 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 or Section 1203 hereof at least three
Business Days prior to the date on which by the terms of this Indenture any
money may become payable for any purpose (including the payment of the principal
of (and premium, if any) or interest on or any amounts payable in connection
with any Security), then, anything herein contained to the contrary
notwithstanding, 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 with respect to such action taken by any notice to the
contrary which may be received by it on or after such date.
(b) Subject to the provisions of Trust Indenture Act Sections 315(a)
through (d), the Trustee shall be entitled to rely on any written notice
delivered to it from time to time by an authorized representative for the
holders of Senior Indebtedness for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Twelve. 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 to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article 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.
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SECTION 1210. RELIANCE ON BANKRUPTCY ORDER OR CERTIFICATE
OF LIQUIDATING AGENT BANK.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Trust Indenture Act
Sections 315(a) through (d), and the Holders of the Securities shall be entitled
to rely on any Bankruptcy Order entered by any court of competent jurisdiction,
or a certificate of (i) the trustee in bankruptcy as to matters over which it
has authority, or (ii) assignee for the benefit of all creditors as to matters
over which it has authority, delivered to the Trustee or to the Holders of
Securities from time to time by any Person, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 1211. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
Subject to the terms of this Article, the Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article shall subordinate to Senior Indebtedness the claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1212. 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 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 in addition to or in place of the Trustee; provided,
however, that this Section 1212 shall not apply to the Company or any Affiliate
of the Company if any of them or any such Affiliate acts as Paying Agent.
SECTION 1213. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the Maturity of
the Securities pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law; provided, however, that, so long as any
Indebtedness permitted by this Indenture to be incurred pursuant to the Credit
Facility shall be outstanding (including letters of credit and bankers'
acceptances), upon the occurrence and during the continuance of an Event of
Default under this Indenture, neither the Trustee nor any Holder shall be
entitled to accelerate all or any of the Subordinated Obligations
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until the earlier to occur of the fifth Business Day following receipt by the
Company and by an authorized representative of the holders of Designated Senior
Indebtedness of a written declaration of acceleration as provided in Section 502
and the date of acceleration of any such Indebtedness under the Credit Facility.
SECTION 1214. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under
Article Four of this Indenture by the Trustee (or such other trustee who shall
have satisfied the requirements of Section 608 and who shall agree to comply
with the provisions of Article Four applicable to it) and which were deposited
in accordance with the terms of Article Four of this Indenture and not in
violation of Section 1203 of this Indenture for the payment of principal of (and
premium, if any) and interest on the Securities shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Twelve and none of the Holders shall be obligated to pay
over any such amount to the Company or any holder of Senior Indebtedness or any
other creditor of the Company.
SECTION 1215. DUTIES OWED BY TRUSTEE TO HOLDERS OF
SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable for any such holders if
it shall mistakenly (in the absence of gross negligence or willful misconduct)
pay over or distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
The Trustee shall not be charged with knowledge of the existence of
Senior Indebtedness or of any facts that would prohibit any payment hereunder
unless a Trust Officer of the Trustee shall have received notice to that effect
at the address of the Trustee set forth in Section 106. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
* * *
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This Indenture may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
REGAL CINEMAS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Chief Executive Officer
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ III
-------------------------------
Title: Chief Financial Officer
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President and
Corporate Controller
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST
COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
Attest: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Assistant Secretary
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EXHIBIT A-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $_________ principal amount of Securities which
are evidenced by the Restricted Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) and held
with the Depositary in the name of Cede & Co. (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Securities to a
Person who will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the Regulation S Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(A) if the transfer has been effected pursuant to Rule 903 or
Rule 904:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either:
(a) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed and
believes that the transferee was outside the United States; or
99
(b) the transaction was executed in, on or through
the facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act;
(5) if the transfer is being requested prior to November 4,
1997, upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel Bank or both (Common Code ____________); and
(B) If the transfer has been effected pursuant to Rule 144,
the Securities have been transferred in a transaction permitted by Rule
144 under the Securities Act.
Upon giving effect to this request to exchange a beneficial interest in
such Restricted Global Security for a beneficial interest in a Regulation S
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global Security pursuant to
the Indenture and the Securities.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ____________, ____ Signature Guarantee
________________________________
A-1-2
100
EXHIBIT A-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $____________ principal amount of the Securities
which are evidenced by the Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)
and held with the Depositary in the name of Cede & Co. (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. ▇▇▇▇▇▇▇▇▇), to be held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer is being effected pursuant to and
in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the U.S Global Securities pursuant to the
Indenture and the Securities Act.
101
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ____________, ____ Signature Guarantee
________________________________
A-2-2
102
EXHIBIT A-3
FORM OF CERTIFICATE FOR TRANSFER OF U.S. PHYSICAL SECURITIES TO
REGULATION S GLOBAL SECURITY OR RESTRICTED GLOBAL SECURITY
IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $___________ principal amount of Securities
which are evidenced by a definitive Physical Security (Certificate No.
__________, CUSIP No. __________, in the name of _________________) (the
"Transferor"). The Transferor has requested a transfer of such interest in the
Securities to a Person that will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the [Restricted Global Security
CUSIP No.
▇▇▇▇▇▇▇▇▇] [Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that: [if such request is made for transfer to
the Regulation S Global Security: such transfer has been effected pursuant to
and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act") and accordingly the
Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or
Rule 904:
(A) the offer of the Securities was not made to a
person in the United States;
(B) either:
(i) at the time the buy order was
originated, the transferee was outside the United
States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was
outside the United States, or
103
(ii) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; [and]
(D) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act;
[and
(E) if the transfer is being requested prior to
November 4, 1997: Upon completion of the transaction, the
beneficial interest being transferred as described above is to
be held with the Depositary through Euroclear or Cedel Bank or
both (Common Code __________);] or
(2) if the transfer has been effected pursuant to Rule 144,
the Securities have been transferred in a transaction permitted by Rule
144.]
(3) if such request is made for transfer to the Restricted
Global Security: Such transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act, and, accordingly,
the Transferor hereby further certifies that the Securities are being
transferred to a person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more
accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
A-3-2
104
Upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel Bank or both (Common Code_____).
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ____________, ____ Signature Guarantee
________________________________
A-3-3
105
EXHIBIT A-4
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: 8 1/2% Senior Subordinated Notes due 2007 of Regal Cinemas, Inc.
Reference is hereby made to the Indenture, dated as of September 24,
1997 (the "Indenture"), between Regal Cinemas, Inc., as issuer (the "Company"),
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
[For transfers: This letter relates to $125,000,000 principal amount of
Securities which are evidenced by a [Restricted Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇) and held with the Depositary in the name of Cede & Co.] [a U.S.
Physical Security (CUSIP No. ________________) registered in the name of
_________________] [and held for the benefit of _________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be transferred to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that upon such transfer, (a) a period of at
least two years will have elapsed since September 24, 1997, (b) the Beneficial
Owner during the three months preceding the date of such transfer was not an
"affiliate" of the Company (as defined in Rule 144 under the Securities Act),
and it was not acting on behalf of such an affiliate and (c) such Person to whom
such transfer is being made is not an "affiliate" of the Company.]
[For exchanges: This letter relates to $125,000,000 principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇) and held with the Depositary in the name of [ ] [and held for the
benefit of ] ] (the "Beneficial Owner"). The Beneficial Owner has requested that
its beneficial interest in such Securities be exchanged for a beneficial
interest in an equal principal amount of Securities evidenced by the Regulation
S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇).
106
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that [it is located and acquired such
securities outside the United States (if the Restricted Period has ended) and
that such transfer is being made in accordance with Rule 903 or 904 of
Regulation S promulgated under the U.S. Securities Act of 1933][, upon such
exchange, (a) it will be the beneficial owner of such Securities, (b) a period
of at least two years will have elapsed since September 24, 1997 and (c) the
Beneficial Owner will not be, and during the three months preceding the date of
such exchange will not have been, an "affiliate" of the Company (as defined in
Rule 144 under the Securities Act), and it is not acting on behalf of such an
affiliate.]]
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: [Insert Name of Beneficial Owner]
By:
Name:
Title:
A-4-2