EXHIBIT 4.1
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AOA HOLDING LLC
AOA CAPITAL CORP,
as Issuers,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
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INDENTURE
Dated as of May 26, 1999
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$50,000,000
103/8% Senior Notes Due 2006
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CROSS-REFERENCE TABLE
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TIA Section Indenture Section
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ss. 310(a)(1)....................................................7.10
(a)(2)....................................................7.10
(a)(3)....................................................N.A.
(a)(4)....................................................N.A.
(a)(5)....................................................7.10
(b).......................................................7.8; 7.10; 10.2
(c).......................................................N.A.
ss. 311(a) ......................................................7.11
(b).......................................................7.11
(c).......................................................N.A.
ss. 312(a) ......................................................2.6
(b).......................................................10.3
(c).......................................................10.3
ss. 313(a) ......................................................7.6
(b)(1)....................................................N.A.
(b)(2)....................................................7.6
(c).......................................................7.6; 10.2
(d).......................................................7.6
ss. 314(a) ......................................................4.6; 4.7; 10.2
(b).......................................................N.A.
(c)(1)....................................................10.4
(c)(2)....................................................10.4
(c)(3)....................................................10.4
(d).......................................................N.A.
(e).......................................................10.5
(f).......................................................N.A.
ss. 315(a) ......................................................7.1(b)
(b).......................................................7.5; 10.2
(c).......................................................7.1(a)
(d).......................................................7.1(c)
(e).......................................................6.11
ss. 316(a) (last sentence).......................................2.10
(a)(1)(A).................................................6.5
(a)(1)(B).................................................6.4
(a)(2)....................................................N.A.
(b).......................................................6.7
(c).......................................................9.4
ss. 317(a)(1)....................................................6.8
(a)(2)....................................................6.9
(b).......................................................2.5
ss. 318(a) ......................................................10.1
(c).......................................................10.1
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.....................................................1
SECTION 1.2 Other Definitions..............................................23
SECTION 1.3 Incorporation by Reference to Trust Indenture Act..............24
SECTION 1.4 Rules of Construction..........................................25
ARTICLE II
THE NOTES
SECTION 2.1 Amount of Notes................................................25
SECTION 2.2 Form and Dating................................................26
SECTION 2.3 Execution and Authentication...................................26
SECTION 2.4 Registrar and Paying Agent.....................................27
SECTION 2.5 Paying Agent to Hold Money in Trust............................28
SECTION 2.6 Noteholder Lists...............................................29
SECTION 2.7 Transfer and Exchange..........................................29
SECTION 2.8 Replacement Notes..............................................30
SECTION 2.9 Outstanding Notes..............................................30
SECTION 2.10 Treasury Notes.................................................31
SECTION 2.11 Temporary Notes................................................31
SECTION 2.12 Cancellation...................................................31
SECTION 2.13 Defaulted Interest.............................................32
SECTION 2.14 CUSIP Number...................................................32
SECTION 2.15 Deposit of Moneys..............................................33
SECTION 2.16 Book-Entry Provisions for
Global Notes...............................................33
SECTION 2.17 Special Transfer Provisions....................................36
SECTION 2.18 Computation of Interest........................................38
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ARTICLE III
OPTIONAL REDEMPTION
SECTION 3.1 Notices to Trustee.............................................38
SECTION 3.2 Selection of Notes To Be Redeemed..............................39
SECTION 3.3 Notice of Redemption...........................................39
SECTION 3.4 Effect of Notice of Redemption.................................40
SECTION 3.5 Deposit of Redemption Price....................................40
SECTION 3.6 Notes Redeemed in Part.........................................41
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes...............................................41
SECTION 4.2 Maintenance of Office or Agency................................41
SECTION 4.3 Corporate Existence............................................42
SECTION 4.4 Payment of Taxes and Other Claims..............................42
SECTION 4.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with Law.....................43
SECTION 4.6 Compliance Certificates........................................44
SECTION 4.7 Reports........................................................45
SECTION 4.8 Further Assurance to the Trustee...............................45
SECTION 4.9 Limitation on Additional Indebtedness..........................45
SECTION 4.10 Limitation on Indebtedness of Certain Subsidiaries.............46
SECTION 4.11 Limitation on Liens............................................46
SECTION 4.12 Limitation on Restricted Payments..............................47
SECTION 4.13 Limitation on Subsidiaries and Unrestricted Subsidiaries.......50
SECTION 4.14 Limitations on Investments.....................................51
SECTION 4.15 Limitation on Certain Asset Sales; Disposition of Proceeds.....51
SECTION 4.16 Limitation on Transactions with Affiliates.....................54
SECTION 4.17 Change of Control..............................................55
SECTION 4.18 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.....................................58
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SECTION 4.19 Limitation on Equity Interests of
Subsidiaries. ...........................59
SECTION 4.20 Limitation on Creation of
Subsidiaries. ...................................60
SECTION 4.21 Limitation on Sale and Lease-back Transactions. 60
SECTION 4.22 Payments for Consent...........................................60
SECTION 4.23 Line of Business...............................................60
SECTION 4.24 Limitation on Additional Indebtedness of the Issuers...........61
SECTION 4.25 Limitation of Guarantees by Subsidiaries.......................61
SECTION 4.26 Waiver of Stay, Extension or Usury Laws........................61
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Merger, Consolidation or Sale of Assets........................62
SECTION 5.2 Successor Entity Substituted...................................63
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default..............................................63
SECTION 6.2 Acceleration...................................................66
SECTION 6.3 Other Remedies.................................................66
SECTION 6.4 Waiver of Past Default.........................................67
SECTION 6.5 Control by Majority............................................67
SECTION 6.6 Limitation on Suits............................................67
SECTION 6.7 Rights of Holders To Receive Payment...........................68
SECTION 6.8 Collection Suit by Trustee.....................................68
SECTION 6.9 Trustee May File Proofs of Claim...............................68
SECTION 6.10 Priorities.....................................................69
SECTION 6.11 Undertaking for Costs..........................................69
SECTION 6.12 Restoration of Rights and Remedies.............................70
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ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee..............................................70
SECTION 7.2 Rights of Trustee..............................................72
SECTION 7.3 Individual Rights of Trustee...................................73
SECTION 7.4 Trustee's Disclaimer...........................................73
SECTION 7.5 Notice of Defaults.............................................73
SECTION 7.6 Reports by Trustee to Holders..................................73
SECTION 7.7 Compensation and Indemnity.....................................74
SECTION 7.8 Replacement of Trustee.........................................75
SECTION 7.9 Successor Trustee by Merger, Etc...............................76
SECTION 7.10 Eligibility; Disqualification..................................76
SECTION 7.11 Preferential Collection of Claims Against Issuers..............77
ARTICLE VIII
DISCHARGE OF INDENTURE: DEFEASANCE
SECTION 8.1 Termination of Issuers' Obligations............................77
SECTION 8.2 Legal Defeasance and Covenant Defeasance.......................78
SECTION 8.3 Application of Trust Money.....................................82
SECTION 8.4 Repayment to Issuers...........................................83
SECTION 8.5 Reinstatement..................................................83
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.....................................84
SECTION 9.2 With Consent of Holders........................................84
SECTION 9.3 Compliance with Trust Indenture Act............................86
SECTION 9.4 Revocation and Effect of Consents..............................86
SECTION 9.5 Notation on or Exchange of Notes...............................87
SECTION 9.6 Trustee To Sign Amendments, Etc................................87
ARTICLE X
SECTION 10.2 Execution and Delivery of Guarantees...........................90
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SECTION 10.3 Limitation of Guarantee........................................90
SECTION 10.4 Additional Guarantors..........................................90
SECTION 10.5 Release of Guarantor...........................................90
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls...................................91
SECTION 11.2 Notices........................................................91
SECTION 11.3 Communications by Holders with Other Holders...................93
SECTION 11.4 Certificate and Opinion of Counsel
as to Conditions Precedent.................................93
SECTION 11.5 Statements Required in Certificate
and Opinion of Counsel.....................................93
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar......................94
SECTION 11.7 Legal Holidays.................................................94
SECTION 11.8 Governing Law..................................................94
SECTION 11.9 Release from Liability.........................................94
SECTION 11.10 Successors.....................................................94
SECTION 11.11 Duplicate Originals............................................95
SECTION 11.12 Separability...................................................95
SECTION 11.13 Table of Contents, Headings, Etc...............................95
SIGNATURES ...................................................................96
EXHIBIT A - Form of Note ...................................................A-1
EXHIBIT B - Form of Legend and Assignment for 144A Note......................B-1
EXHIBIT C - Form of Legend and Assignment for Regulation S Note..............C-1
EXHIBIT D - Form of Legend for Global Note...................................D-1
EXHIBIT E - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors.....................E-1
EXHIBIT F - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S............................F-1
EXHIBIT G - Form of Guarantee................................................G-1
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INDENTURE dated as of May 26, 1999, among AOA HOLDING LLC, a Minnesota
limited liability company (the "Company"), AOA CAPITAL CORP, a Minnesota
corporation and a wholly-owned subsidiary of the Company ("Capital Corp" and
together with the Company, the "Issuers"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York corporation, as trustee (the "Trustee").
The Issuers have duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Notes (as hereinafter defined) to
be issued as provided for in this Indenture.
The parties hereto agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as hereinafter defined) of the
Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (including a
Subsidiary) existing at the time such Person becomes a Subsidiary or assumed in
connection with the acquisition of assets from such Person.
"Additional Interest" has the meaning provided in Section 4 of the
Registration Rights Agreement.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser
of (x) the amount by which the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities), but excluding liabilities under the Guarantee, of such Guarantor
at such date and (y) the amount by which the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities and after
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giving effect to any collection from any Subsidiary of such Guarantor in respect
of the obligations of such Subsidiary under the Guarantee), excluding
Indebtedness in respect of the Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means any Registrar or Paying Agent.
"AOALP" means ▇▇▇▇▇ Outdoor Advertising Limited Partnership, a
Minnesota limited partnership.
"Asset Sale" means the direct or indirect sale, transfer, issuance,
conveyance, lease (other than operating leases entered into in the ordinary
course of business pursuant to ordinary business terms), assignment or other
disposition for value (including, without limitation, by eminent domain,
condemnation or similar governmental proceeding) or any merger or consolidation
of any Subsidiary of the Company with or into another Person (other than the
Company or any Wholly-Owned Subsidiary of the Company) whereby such Subsidiary
shall cease to be a Wholly-Owned Subsidiary in any single transaction or series
of related transactions (separate eminent domain, condemnation or similar
governmental proceedings to each be considered a single transaction but not to
be considered together as a series of related transactions) involving property
or assets with a fair market value in excess of $250,000 of (a) any Equity
Interest in any Subsidiary of the Company, (b) real property owned by the
Company or any Subsidiary thereof, or a division, line of business or comparable
business segment of the Company or any Subsidiary thereof or (c) other property,
assets
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or rights of the Company, any Subsidiary thereof or any division or line of
business of the Company or any Subsidiary thereof, provided, however, that Asset
Sales shall not include (i) sales, leases, conveyances, transfers or other
dispositions to the Company or to a Subsidiary thereof or to any other Person if
after giving effect to such sale, lease, conveyance, transfer or other
disposition such other Person becomes a Wholly-Owned Subsidiary of the Company,
(ii) transactions complying with Section 5.1 hereof (except as otherwise
provided in Section 4.15(d) hereof), (iii) sales, transfers, issuances,
conveyances, leases, assignments or other dispositions for value to the Company
or any Wholly-Owned Subsidiary of the Company, (iv) transfers or other
distributions of assets which constitute (1) Permitted Investments or (2)
Restricted Payments made in compliance with Section 4.12 and (v) the exchange of
property or assets of the Company or a Subsidiary of the Company for similar
assets constituting one or more outdoor advertising properties owned by another
Person.
"Asset Sale Proceeds" means, with respect to any Asset sale, (i) cash
received by the Company or any Subsidiary thereof from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all imputed income or other taxes measured by or resulting from
such Asset Sale (calculated as provided in the definition of "Permitted Tax
Distributions"), (b) payment of all brokerage commissions, underwriting and
other fees and expenses related to such Asset Sale, (c) provision for minority
interest holders in any Subsidiary as a result of such Asset Sale, (d) payments
made to retire Indebtedness secured by the assets subject to such Asset Sale and
(e) deduction of appropriate amounts to be provided by the Company or a
Subsidiary as a reserve, in accordance with GAAP, against any liabilities
associated with the assets sold or disposed of in such Asset Sale and retained
by the Company or a Subsidiary thereof after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such
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Asset Sale, and (ii) promissory notes and other non-cash consideration received
by the Company or by any Subsidiary thereof from such Asset Sale or other
disposition upon the liquidation or conversion of such notes or non-cash
consideration into cash.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the greater of (i) the fair
value of the property subject to such arrangement (as determined in good faith
by the Board of Directors) and (ii) the present value of the notes (discounted
at the rate of interest implicit in such transaction) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale and LeaseBack Transaction (including any period for which
such lease has been extended).
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar federal
or state law for the relief of debtors as the same may be amended from time to
time.
"Board of Directors" means, as to any Person, the board of directors or
governors or any duly authorized committee thereof of such Person or, if such
Person is a partnership, of the managing general partner of such Person.
"Board Resolution" means, as to any Person, a copy of a resolution
certified pursuant to an Officers' Certificate to have been duly adopted by the
Board of Directors of such Person, and to be in full force and effect, and, if
required hereunder, delivered to the Trustee.
"Business Day" means any day except a Saturday, a Sunday or any day on
which banking institutions in New York, New York are required or authorized by
law or other governmental action to be closed.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capital-
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ized amount of such obligations determined in accordance with GAAP.
A "Change of Control" will be deemed to have occurred at such time as
(i) the Permitted Holders, individually or in the aggregate, shall cease to
beneficially own (as defined under Rule 13(d)(3) or any successor rule or
regulation promulgated under the Exchange Act), directly or indirectly, 50.1% or
more of the Common Equity Interests of the Company AOALP or AOAI and any Person
(including a Person's Affiliates and associates), other than a Permitted Holder,
beneficially owns (as defined under Rule 13(d)(3) or any successor rule or
regulation promulgated under the Exchange Act), directly or indirectly, 35% or
more of the Common Equity Interests of the Company AOALP or AOAI, (ii) there
shall be consummated any consolidation or merger of the Company AOALP or AOAI in
which the Company AOALP or AOAI, as the case may be, is not the continuing or
surviving corporation or pursuant to which the Common Equity Interests of the
Company would be converted into cash, securities or other property, other than a
merger or consolidation of the Company AOALP or AOAI in which the holders of the
Common Equity Interests of the Company AOALP or AOAI, as the case may be,
outstanding immediately prior to the consolidation or merger hold, directly or
indirectly, at least a majority of the Common Equity Interests of the surviving
corporation immediately after such consolidation or merger, (iii) there is a
sale, lease or transfer of all or substantially all of the assets of the Company
AOALP or AOAI to any Person or group (as such term is defined in Section
13(d)(3) of the Exchange Act), (iv) the members of the Company, the shareholders
of AOAI or the partners of AOALP shall approve any plan or proposal for the
liquidation or dissolution of AOAI or AOALP, as the case may be; (v) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company or AOAI (together with any new
members of the Board of Directors whose election to such Board of Directors has
been approved by 66 2/3% of the members of the Board of Directors then still in
office who either were members of the Board of Directors at the beginning of
such period or whose election or recommendation for election was previously so
approved) cease
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to constitute a majority of the Board of Directors of the Company or AOAI, as
the case may be, or (vi) any Person is admitted as a general partner of AOALP
after which AOAI does not have the responsibility to take all of the actions to
the same extent it is entitled or required to take under the partnership
agreement of AOALP as in effect on the Issue Date.
"Common Equity Interests" of any Person means all Equity Interests of
such Person that are generally entitled to (i) vote in the election of directors
of such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"Consolidated Interest Expense" means, with respect to any Person, for
any period, the aggregate amount of interest which, in conformity with GAAP,
would be set forth opposite the caption "interest expense" or any like caption
on an income statement for such Person and its Subsidiaries on a consolidated
basis, imputed interest included in Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, the net costs associated with
hedging obligations, amortization of other financing fees and expenses, the
interest portion of any deferred payment obligation, amortization of discount or
premium, if any, and all other non-cash interest expense (other than interest
amortized to cost of sales) plus, without duplication, all net capitalized
interest for such period and all interest incurred or paid under any guarantee
of Indebtedness (including a guarantee of principal, interest or any combination
thereof) of any Person, plus the amount of all dividends or distributions paid
on Disqualified Equity Interests (other than dividends paid or payable in shares
of Equity Interests).
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"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP, plus
the amount of any dividends or distributions received by such Person from
Unrestricted Subsidiaries, provided, however, that (a) the Net Income of any
Person (the "other Person") in which the Person in question or any of its
Subsidiaries has less than a 100% interest (which interest does not cause the
net income of such other Person to be consolidated into-the net income of the
Person in question in accordance with GAAP) shall be included only to the extent
of the amount of dividends or distributions paid to the Person in question or
the Subsidiary, (b) the Net Income of any Subsidiary of the Person in question
that is subject to any restriction or limitation on the payment of dividends or
the making of other distributions (other than pursuant to the Notes, this
Indenture, the Credit Facility, the Existing Subsidiary Notes and the related
indenture) shall be excluded to the extent such restriction or limitation would
prevent such subsidiary from being able to pay dividends or make other
distributions out of its Net Income, (c)(i) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition and (ii) any net gain (but not loss) resulting from an Asset
Sale by the Person in question or any of its Subsidiaries other than in the
ordinary course of business shall be excluded, (d) extraordinary gains and
losses (including any related tax effects on the Company) shall be excluded and
(e) the amount of any Permitted Tax Distributions shall be excluded.
Consolidated Net Income shall be calculated without deducting therefrom any
accruals made for Phantom Compensation.
"Consolidated Net Worth" with respect to any Person, at any date of
determination, means the consolidated equity of the holders of Equity Interests
of such Person and its Subsidiaries (excluding any Disqualified Equity
Interests) outstanding at such date, as determined on a consolidated basis and
in accordance with GAAP.
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"Credit Facility" means the credit facility by and among the Subsidiary
Issuers, Canadian Imperial Bank of Commerce as administrative agent and
collateral agent and the lenders listed therein, as the same may be amended,
modified, replaced, renewed, refunded or refinanced from time to time.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the form of one
or more Global Notes, The Depository Trust Company or another Person designated
as Depository by the Issuers, which Person must be a clearing agency registered
under the Exchange Act.
"Disqualified Equity Interests" means any Equity Interest which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the maturity date of the Notes, for cash or
securities constituting Indebtedness. Without limitation of the foregoing,
Disqualified Equity Interests shall be deemed to include (i) any Preferred
Equity Interests of a Subsidiary of the Company and (ii) any Preferred Equity
Interests of the Company, with respect to either of which, under the terms of
such Preferred Equity Interests, by agreement or otherwise, such Subsidiary or
the Company is obligated to pay current dividends or distributions in cash
during the period prior to the maturity date of the Notes, provided, however,
that Preferred Equity Interests of the Company or any Subsidiary thereof that
are issued with the benefit of provisions requiring a change of control offer to
be made for such Preferred Equity Interests in the event of a change of control
of the Company or such Subsidiary, which provisions have substantially the same
effect as the provisions of Section 4.17, shall not be deemed to be Disqualified
Equity Interests solely by virtue of such provisions.
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"EBITDA" means, with respect to any Person for any period, the sum,
without duplication, of (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) provisions for taxes based on income or profits of such Person
for such period, (iv) depreciation, (v) amortization, (vi) Phantom Compensation,
(vii) the amount of any Permitted Tax Distributions and (viii) any other
non-cash charges to the extent deducted from Consolidated Net Income (including
non-cash expenses recognized in accordance with Financial Accounting Standards
Bulletin Number 106 but excluding any non-cash charge to the extent that it
requires an accrual of or a reserve for cash disbursements for any future
period), in each case to the extent deducted from Consolidated Net Income for
the period as to which the computation of EBITDA is made, all as determined in
accordance with GAAP.
"Equity Interests" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into or exchangeable for any of the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Subsidiary Notes" means the 10 3/4% Senior Notes due 2006 of
the Subsidiary Issuers.
"fair market value" or "fair value" means, with respect to any asset or
property, the price which could be negotiated in an arms'-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the transaction. Fair
market value or fair value shall be determined by a majority of the Board of
Directors acting in good faith and shall be evidenced by a Board Resolution and,
if required hereunder, delivered to the Trustee. No such determination need be
supported by an appraisal or other expert opinion.
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"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Company with respect to the Notes by each Guarantor, if any, pursuant to the
terms of Article 10 hereof, substantially in the form set forth in Exhibit G.
"Guarantor" means each Person that hereafter becomes a Guarantor
pursuant to Sections 10.02 and 10.04, and "Guarantors" means such entities,
collectively.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become, directly or indirectly, liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence," "incurred," "incurrable," and
"incurring" shall have meanings correlative to the foregoing), provided,
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 (without duplication), with respect to any Person,
any indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other liabilities arising in the ordinary course
of business) if and to the extent any of the foregoing indebt-
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edness would appear as a liability upon a balance sheet of such Person prepared
in accordance with GAAP, and shall also include, to the extent not otherwise
included, (i) any Capitalized Lease Obligations, (ii) obligations secured by a
lien to which the property or assets owned or held by such Person are subject,
whether or not the obligation or obligations secured thereby shall have been
assumed, (iii) all Indebtedness of others of the type described in the other
clauses of this definition (including all dividends of other Persons) the
payment of which is guaranteed, directly or indirectly, by such Person or that
is otherwise its legal liability or which such Person has agreed to purchase or
repurchase or in respect of which such Person has agreed contingently to supply
or advance funds (whether or not such items would appear upon the balance sheet
of the guarantor), (iv) all obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction, (v) in
the case of the Company, Disqualified Equity Interests of the Company or any
Subsidiary thereof, and (vi) obligations of any such Person under any Interest
Rate Agreement applicable to any of the foregoing (if and to the extent such
Interest Rate Agreement obligations would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP). The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, provided, however, that (i) the
amount outstanding at any time of any Indebtedness issued with original issue
discount, including the Notes, is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP, (ii)
Indebtedness shall not include any liability for federal, state, local or other
taxes, and (iii) Indebtedness shall not include obligations for Phantom
Compensation or Prior Accrued Bonus Payments. Notwithstanding any other
provision of the foregoing definition, any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business shall not be deemed to be "Indebtedness" of the Issuers or any
-12-
Subsidiary for purposes of this definition. Furthermore, guarantees of (or
obligations with respect to letters of credit supporting) Indebtedness otherwise
included in the determination of such amount shall not also be included.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms hereof.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking or consulting firm of nationally recognized standing that is,
in the good faith judgment of the Board of Directors of the Company, qualified
to perform the task for which such firm has been engaged and disinterested and
independent with respect to the Company and its Affiliates.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"interest" when used with respect to any Note, means the amount of all
interest accruing on such Note, including all interest accruing subsequent to
the occurrence of any events specified in Sections 6.1(a)(viii) and (ix) or
which would have accrued but for any such event and any Additional Interest.
"Interest Payment Date" when used with respect to any Note means the
stated maturity of an installment of interest specified in such Note.
"Interest Rate" when used with respect to any Note means the rate per
annum specified in such Note as the rate of interest accruing on the principal
amount of such Note.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
-13-
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business, including accounts receivable arising in the ordinary course of
business and acquired as a part of the assets acquired by AOALP or any of its
Subsidiaries in connection with an acquisition of assets which is otherwise
permitted hereunder), loan or capital contribution to (by means of transfers of
property to others, payments for property or services for the account or use of
others or otherwise), the purchase of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities of, or the
acquisition, by purchase or otherwise, of all or substantially all of the
business or stock or other evidence of beneficial ownership of, any Person, the
guarantee or assumption of the Indebtedness of any other Person (except for an
assumption of Indebtedness for which the assuming Person receives consideration
with a fair market value at least equal to the principal amount of the
Indebtedness assumed), the designation of a Subsidiary of AOALP as an
Unrestricted Subsidiary or the making of any investment in any Person and all
other items that would be classified as investments on a balance sheet of such
Person prepared in accordance with GAAP. Investments shall exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
"Issue Date" means the closing date for the sale and original issuance
of the Notes.
"Issuers" means, collectively, AOA Holding LLC, a Minnesota limited
liability company, and AOA Capital Corp, a Minnesota corporation and a
Wholly-Owned Subsidiary of AOA Holding LLC.
"Issuers Request" means any written request signed in the names of each
of the Issuers by the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Treasurer of each of the Issuers
and attested to by the Secretary or any Assistant Secretary of each of the
Issuers.
-14-
"Legal Holiday" means any day other than a Business Day, a Saturday or
a Sunday.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any Capitalized Lease Obligation, conditional sales or other
title retention agreement having substantially the same economic effect as any
of the foregoing).
"Maturity Date," when used with respect to any Note, means the date
specified in such Note as the fixed date on which the principal of such Note is
due and payable.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Investments" means the excess of (i) the aggregate of all
Investments made by the Company or a Subsidiary thereof on or after the Issue
Date (in the case of an Investment made other than in cash, the amount shall be
the fair market value of such Investment as determined in good faith by the
Board of Directors of the Company) over (ii) the sum of (A) the aggregate amount
returned in cash on such Investments whether through interest payments,
principal payments, dividends or other distributions and (B) the net cash
proceeds received by the Company or such Subsidiary from the disposition of all
or any portion of such Investments (other than to a Subsidiary of the Company),
provided, however, that with respect to all Investments made in Unrestricted
Subsidiaries, the sum of clauses (A) and (B) above with respect to such
Investments shall not exceed the aggregate amount of all Investments made in all
Unrestricted Subsidiaries.
"Net Proceeds" means (a) in the case of any sale of Equity Interests by
the Issuers, the aggregate net proceeds re-
-15-
ceived by the Company, after payment of expenses, commissions and the like
incurred in connection therewith, whether such proceeds are in cash or in
property (valued at the fair market value thereof, as determined in good faith
by the Board of Directors of the Company, at the time of receipt), and (b) in
the case of any exchange, exercise, conversion or surrender of outstanding
securities of any kind for or into Equity Interests of the Company which are not
Disqualified Equity Interests, the net book value of such outstanding securities
on the date of such exchange, exercise, conversion or surrender (plus any
additional amount required to be paid by the holder to the Company upon such
exchange, exercise, conversion or surrender, less any and all payments made to
the holders, e.g., on account of fractional shares and less all expenses
incurred by the Company in connection therewith).
"Notes" means the 103/8% Senior Notes Due 2006, the Exchange Notes and
the Private Exchange Notes issued, authenticated and delivered under this
Indenture, as amended or supplemented from time to time pursuant to the terms of
this Indenture.
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other expenses payable under the documentation governing such Indebtedness.
"Officer" means, with respect to any Person, the Chairman, the
President, the Chief Executive Officer, any Vice President, the Chief Financial
Officer, the Treasurer or the Secretary of such Person (or, in the case of a
Person that is a partnership, the general partner of such Person in such
capacity).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by an Officer that shall comply with applicable provisions of
this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
is acceptable to the Trustee, which may include counsel to the Company.
-16-
"Permitted Holders" means ▇▇▇▇▇▇▇ ▇▇▇▇▇, his spouse and lineal
descendants and trusts for the exclusive benefit of any of the foregoing
persons.
"Permitted Indebtedness" means: (i) Indebtedness (plus interest,
premium, fees and other obligations associated therewith) arising under or in
connection with Permitted Secured Indebtedness;
(ii) Indebtedness under the Notes;
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the date hereof (including the
Existing Subsidiary Notes);
(iv) Interest Rate Agreements;
(v) Additional Indebtedness, including Indebtedness incurred
in connection with or arising out of Capitalized Lease Obligations, in
an aggregate principal amount outstanding at any time not to exceed $1
million;
(vi) Indebtedness of a Subsidiary of the Company issued to and
held by the Company or a Wholly-Owned Subsidiary of the Company;
provided, however, that any subsequent issuance or transfer of any
Equity Interest that results in such Subsidiary ceasing to be a
Wholly-Owned Subsidiary of the Company or any transfer of such
Indebtedness to any Person other than the Company or a Wholly-Owned
Subsidiary of the Company shall be deemed to be the incurrence of such
Indebtedness by the Company;
(vii) Indebtedness of the Company to a Wholly-Owned Subsidiary
in respect of intercompany advances or transactions; and
(viii) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made on or
after the date hereof consisting of:
-17-
(i) Temporary Cash Investments;
(ii) Investments by the Company or any of its Subsidiaries in
the Company or a Wholly-Owned Subsidiary of the Company; provided,
however, that the proceeds of any such Investment by the Company in a
Wholly-Owned Subsidiary of the Company other than AOALP or one of its
Wholly-Owned Subsidiaries may only be used for the purpose of making
Investments in AOALP or Investments in accordance with clause (i) above
or clause (iv) below;
(iii) Investments by AOALP or any of its Subsidiaries in any
Person, if (A) as a result of such Investment (1) such Person becomes a
Wholly-Owned Subsidiary of AOALP or (2) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, AOALP or a
Wholly-Owned Subsidiary thereof and (B) after giving effect to such
Investment the Company is in compliance with Section 4.23;
(iv) (A) Net Investments of the Company and its Subsidiaries
(other than AOALP and any of its Subsidiaries) in securities that are
not equity securities or debt securities maturing more than 365 days
after the date of such Investment and (B) Net Investments of AOALP or
any of its Subsidiaries in any Person; provided, however, that the
aggregate amount of all such Net Investments made pursuant to this
clause (iv) shall not exceed $3.0 million at any one time outstanding;
(v) Investments by AOALP or any of its Subsidiaries
represented by accounts receivable created or acquired in the ordinary
course of business;
(vi) Advances by AOALP or any of its Subsidiaries to employees
in the ordinary course of business not to exceed an aggregate of
$100,000 outstanding at any one time;
(vii) Investments by the Company or any of its Subsidiaries
under or pursuant to Interest Rate Agreements;
-18-
(viii) Investments by AOALP or any of its Subsidiaries in the
Notes and the Existing Subsidiary Notes; and
(ix) Investments existing on the Issue Date.
"Permitted Liens" means, without duplication, (i) Liens existing on the
date of this Indenture, (ii) Liens in favor of the Company or any Subsidiary
thereof, (iii) Liens on property of a Person existing at the time such Person is
acquired by, merged into or consolidated with the Company or any Subsidiary
thereof, provided, however, that such Liens (a) were not created in anticipation
of such acquisition, merger or consolidation and (b) are not applicable to any
other property of the Company or any of the other Subsidiaries of the Company,
(iv) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, provided, however,
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor, (v) landlords', carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts which are
not yet delinquent or are being contested in good faith by appropriate
proceedings, (vi) pledges or deposits made in the ordinary course of business in
connection with (a) leases, performances bonds and similar obligations, (b)
workers' compensation, unemployment insurance and other social security
legislation, or (c) securing the performance of surety bonds and appeal bonds
required (1) in the ordinary course of business or in connection with the
enforcement of rights or claims of the Company or a Subsidiary thereof or (2) in
connection with judgments that do not give rise to an Event of Default and which
do not exceed $3 million in the aggregate, (vii) easements, rights-of-way,
restrictions, minor defects or irregularities in title and other similar
encumbrances which, in the aggregate, do not materially detract from the value
of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company or any Subsidiary thereof, (viii) Liens
on property or assets of, or any Equity Interests of or secured debt of,
-19-
any Person existing at the time such Person becomes a Subsidiary of the Company
or at the time such Person is merged into the Company or any Subsidiary thereof,
provided, however, that such Liens are not incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary of the Company or merging
into the Company or any of its Subsidiaries, (ix) Liens in favor of the Company
or any of its Subsidiaries, (x) Liens granted by AOALP or any Subsidiary thereof
to secure Purchase Money Indebtedness that is otherwise permitted under this
Indenture, provided, however, that (a) any such Lien is created solely for the
purpose of securing Indebtedness representing, or incurred to finance, refinance
or refund, the cost (including sales and excise taxes, installation and delivery
charges and other direct costs of, and other direct expenses paid or charged in
connection with, such purchase or construction) of such Property, (b) the
principal amount of the Indebtedness secured by such Lien does not exceed 100%
of such costs, and (c) such Lien does not extend to or cover any-Property other
than such item of Property and any improvements on such item, (xi) Liens granted
by the Company or any Subsidiary thereof securing (A) Permitted Secured
Indebtedness and (B) Refinancing Indebtedness incurred to refinance the Existing
Subsidiary Notes, (xii) Liens granted by the Company or any Subsidiary thereof
securing Capitalized Lease Obligations permitted to be incurred under clause (v)
of the definition of "Permitted Indebtedness," provided, however, that such Lien
does not extend to any property other than that subject to the underlying lease,
(xiii) Liens pursuant to leases and subleases of real property which do not
interfere with the ordinary conduct of the business of the Company or any of its
Subsidiaries and which are made on customary and usual terms applicable to
similar properties, (xiv) Liens securing reimbursement obligations under letters
of credit, but only in or upon the goods the purchase of which was financed by
such letters of credit and (xv) Liens securing Refinancing Indebtedness,
provided, however, that such Liens extend only to the assets securing the
Indebtedness being extended, refinanced, renewed or replaced, and such
Indebtedness was previously secured by such assets and provided, further, that
the terms of such Liens are not less favorable to the
-20-
holders of the Notes than the Liens being extended, refinanced, renewed or
replaced.
"Permitted Secured Indebtedness" means any Indebtedness of the Company
or any Subsidiary thereof (plus interest, premium, fees and other obligations
associated therewith), and any refinancing, refunding, replacement, renewal or
extension thereof, under (a) the Credit Facility and (b) agreements evidencing
any other Indebtedness which is secured by assets of the Company or any
Subsidiary thereof, whether involving the same or any other lender or creditor
or group of lenders or creditors as has provided the Credit Facility, provided,
however, that the aggregate amount of all such Indebtedness outstanding (or
committed to be advanced under the agreements to which such Indebtedness
relates) at any time shall not exceed $35 million (plus interest, premium, fees
and other obligations associated therewith).
"Permitted Tax Distributions" means, (i) with respect to AOALP, for so
long as AOALP is a partnership or substantially similar "pass-through" entity
for federal income tax purposes, distributions to the partners of AOALP based on
estimates of the amount of federal, state and local income taxes that AOALP
would be required to pay with respect to a fiscal year calculated as if, for the
applicable fiscal year, AOALP were treated as a "C corporation" incorporated
under the laws of the State of Minnesota rather than as a partnership and (ii)
without duplication of the payments made pursuant to clause (i), with respect to
the Company, for so long as the Company is a limited liability company or
substantially similar "pass-through" entity for federal income tax purposes,
distributions to the members of the Company based on estimates of the amount of
federal, state and local income taxes that the Company would be required to pay
with respect to a fiscal year calculated as if, for the applicable fiscal year,
the Company were treated as a "C corporation" incorporated under the laws of the
State of Minnesota rather than as a limited liability company.
"Person" means individual, corporation, partnership, limited liability
company, joint venture, association, joint-
-21-
stock company, trust, unincorporated organization or government (including any
agency or political subdivision thereof).
"Phantom Compensation" means the compensation accrued after the Issue
Date pursuant to Article II of the "phantom stock" agreements entered into, in
writing, between AOALP and certain of its employees other than ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
substitutions to or replacements of such Article of such agreements, and any
comparable subordinated incentive compensation agreement with its employees on
the basis of the increase in value of AOALP or a division or Subsidiary thereof.
"Physical Notes" means certificated Notes in registered form in
substantially the form set forth in Exhibit A.
"Preferred Equity Interest" means any Equity Interest of a Person,
however designated, which entitles the holder thereof to a preference with
respect to dividends, distributions or liquidation proceeds of such Person over
the holders of other Equity Interests issued by such Person.
"principal" of a debt security means the principal amount of the
security plus, when appropriate, the premium, if any, on the security.
"Prior Accrued Bonus Payments" means payments in respect of Phantom
Compensation accrued prior to the Issue Date.
"Private Exchange Notes" shall have the meaning assigned thereto in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Rule 144A Notes and on any Physical Notes (other than Regulation S Notes)
delivered prior to the issuance of the Exchange Notes in the form set forth in
Exhibit B.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
-22-
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A promulgated under the Securities Act.
"Redemption Date" means, with respect to any Note, the Maturity Date of
such Note or the date on which such Note is to be redeemed by the Issuers
pursuant to the terms of the Notes.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances,
renews, replaces or extends any Indebtedness of the Company or its Subsidiaries
outstanding on the Issue Date or other Indebtedness permitted to be incurred by
the Issuers or the Subsidiaries pursuant to the terms of this Indenture, whether
involving the same or any other lender or creditor or group of lenders or
creditors, but only to the extent that (i) the Refinancing Indebtedness is
subordinated to the Notes to at least the same extent as the Indebtedness being
refunded, refinanced or extended, if at all, (ii) the Refinancing Indebtedness
is scheduled to mature either (a) no earlier than the Indebtedness being
refunded, refinanced or extended, or (b) after the maturity date of the Notes,
(iii) the Refinancing Indebtedness has a weighted average life to maturity at
the time it is incurred that is equal to or greater than the weighted average
life to maturity of the Indebtedness being refunded, refinanced or extended,
(iv) such Refinancing Indebtedness is in an aggregate principal amount that is
less than or equal to the aggregate principal or accreted amount (in the case of
any Indebtedness issued with original issue discount, as such) then outstanding
(plus any applicable prepayment premiums or penalties and accrued interest
thereon) under the Indebtedness being refunded, refinanced or extended and (v)
such Refinancing Indebtedness is incurred by the same Person that
-23-
initially incurred the Indebtedness being refunded, refinanced or extended,
except that the Company may incur Refinancing Indebtedness to refund, refinance
or extend Indebtedness of any Wholly-Owned Subsidiary of the Company.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of May 26, 1999 among the Issuers and CIBC World Markets Corp., as
Initial Purchaser.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Equity Interests
of the Company or any Subsidiary thereof or any payment made to the direct or
indirect holders (in their capacities as such) of Equity Interests of the
Company or any Subsidiary thereof (other than (a) dividends or distributions
payable solely in Equity Interests (other than Disqualified Equity Interests) or
in options, warrants or other rights to purchase Equity Interests (other than
Disqualified Equity Interests), (b) in the case of Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company and (c) Permitted Tax Distributions), (ii) the
purchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Subsidiary thereof (other than Equity Interests
owned by the Company or a Wholly-Owned Subsidiary, excluding Disqualified Equity
Interests), (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is subordinated in right of payment to the
Notes, (iv) the making of any Investment or guarantee of any Investment in any
Person other than a Permitted Investment, (v) forgiveness of any Indebtedness of
an Affiliate of the Company to the Company or a Subsidiary thereof, (vi) cash
payments in respect of Phantom Compensation and (vii) the payment of amounts to
▇▇▇▇▇▇▇ ▇▇▇▇▇ (other than dividends or distributions otherwise permitted by the
terms of this Indenture) to the extent the aggregate amount
-24-
of such payments made in any one year exceeds the sum of (i) $200,000 and (ii)
the cumulative effect of reasonable annual cost-of-living adjustments made from
the Issue Date to the date of such payment. For purposes of determining the
amount expended for Restricted Payments, cash distributed or invested shall be
valued at the face amount thereof and property other than cash shall be valued
at its fair market value.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
promulgated under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of the Company of any
real or tangible personal property, which property (i) has been or is to be sold
or transferred by the Company or such Subsidiary to such Person in contemplation
of such leasing and (ii) would constitute an Asset Sale if such property had
been sold in an outright sale thereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" of any specified Person means any corporation,
partnership, limited liability company, joint venture, association or other
business entity, whether now existing or hereafter organized or acquired, (i) in
the case of a corporation, of which more than 50% of the total voting power of
the Equity Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, officers or trustees thereof
is held by such first-named Person or any of its Subsidiaries; or (ii) in the
case of a partnership, limited liability company, joint venture, association or
other
-25-
business entity, with respect to which such first-named Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise or if in accordance with
generally accepted accounting principles such entity is consolidated with the
first-named Person for financial statement purposes. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be deemed a Subsidiary of the
Company or of AOALP other than for purposes of the definition of Unrestricted
Subsidiary, unless AOALP or a Subsidiary of AOALP shall have designated such
Unrestricted Subsidiary as a "Subsidiary" of AOALP by written notice to the
Trustee. An Unrestricted Subsidiary may be designated as a Subsidiary of AOALP
at any time by AOALP or a Subsidiary of AOALP by written notice to the Trustee,
provided, however that (i) no Default or Event of Default shall have occurred
and be continuing or would arise therefrom and (ii) if such Unrestricted
Subsidiary is an obligor of any Indebtedness, any such designation shall be
deemed to be an incurrence as of the date of such designation by AOALP or a
Subsidiary of AOALP of such Indebtedness and immediately after giving effect to
such designation, AOALP could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.9.
"Subsidiary Issuers" means AOALP and ▇▇▇▇▇ Outdoor Advertising, Inc., a
Minnesota corporation.
"Temporary Cash Investments" means (i) Investments in marketable,
direct obligations issued or guaranteed by the United States of America, or of
any governmental agency or political subdivision thereof, maturing within 365
days of the date of purchase; (ii) Investments in certificates of deposit issued
by a bank organized under the laws of the United States of America or any state
thereof or the District of Columbia, in each case having capital, surplus and
undivided profits totaling more than $500 million and rated at least A by
Standard & Poor's Corporation and A-2 by ▇▇▇▇▇'▇ Investors Service, Inc.,
maturing within 365 days of purchase; (iii) commercial paper with a maturity of
180 days or less issued by a corporation (except any Affiliate of the Company)
organized under the laws
-26-
of any state of the United States or the District of Columbia and rated at the
time of investment at least A-1 by Standard & Poor's Corporation or at least P-1
by ▇▇▇▇▇'▇ Investors Service, Inc.; (iv) repurchase agreements and reverse
repurchase agreements relating to marketable obligations issued or
unconditionally guaranteed by the United States of America or issued by any
agency thereof and backed by the full faith and credit of the United States
Government, in each case maturing within one year from the date of acquisition,
provided, however, that the terms of such agreements comply with the guidelines
set forth in the Federal Financial Agreements of Depository Institutions with
Securities Dealers and Others, as adopted by the Comptroller of the Currency;
(v) instruments backed by letters of credit satisfying the conditions of clause
(ii) above; or (vi) investments not exceeding 365 days in duration in money
market funds that invest substantially all of such funds' assets in the
Investments described in the preceding clauses (i) through (v).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb), as amended, as it may be amended from time to time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means an officer or assistant officer of the Trustee
assigned to the Corporate Trustee Administration Department or similar
department performing corporate trust work, or any successor to such department
or, in the case of a successor trustee, an officer assigned to the department,
division or group performing the corporate trust work of such successor and also
means with respect to any particular corporate trust matter any other officer of
the Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Unrestricted Subsidiary" means any Subsidiary of AOALP which shall
have been designated as an Unrestricted Sub-
-27-
sidiary by AOALP or any Subsidiary of AOALP by written notice to the Trustee and
any Subsidiary of an Unrestricted Subsidiary. A Subsidiary of AOALP may be
designated as an Unrestricted Subsidiary at any time by AOALP or any Subsidiary
of AOALP by written notice to the Trustee, provided, however, that (i) no
Default or Event of Default shall have occurred and be continuing or would arise
therefrom, (ii) such designation is at that time permitted under Section 4.12
and (iii) immediately after giving effect to such designation, AOALP could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.9. An Unrestricted Subsidiary may be designated as a Subsidiary of
AOALP at a later date in the manner provided in the definition of "Subsidiary."
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
voting securities (other than directors' qualifying shares) of which are owned,
directly or indirectly, by such Person. As used herein, AOALP shall be deemed a
Wholly-Owned Subsidiary of the Company as long as (i) at least 69.0% of the
aggregate partnership interests of AOALP are owned, directly or indirectly, of
record and beneficially by the Company; (ii) the general partner or partners of
AOALP are the Company or a Wholly-Owned Subsidiary of the Company; and (iii) the
partnership agreement of AOALP provides that all limited partner distributions
(other than Permitted Tax Distributions) may be made only to the Company,
directly or through a Wholly-Owned Subsidiary of the Company, until the Notes
have been paid in full.
SECTION 1.2 Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction".......................................... 4.16(a)
"Agent Members".................................................. 2.16(a)
"Base Period".................................................... 4.12(a)
"CEDEL".......................................................... 2.16(a)
"Change of Control Offer"........................................ 4.17(a)
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Term Defined in Section
---- ------------------
"Change of Control Payment Date"................................. 4.17(b)
"Change of Control Purchase Price"............................... 4.17(a)
"covenant defeasance"............................................ 8.2(c)
"Custodian"...................................................... 6.1(b)
"Euroclear"...................................................... 2.16(a)
"Event of Default"............................................... 6.1(a)
"Excess Proceeds"................................................ 4.16(b)
"Excess Proceeds Offer".......................................... 4.16(b)
"Global Notes"................................................... 2.16(a)
"Guarantee"...................................................... 4.25
"Legal Defeasance"............................................... 8.2(b)
"Other Notes".................................................... 2.2
"Paying Agent"................................................... 2.4
"Registrar"...................................................... 2.4
"Regulation S Global Notes"...................................... 2.16(a)
"Regulation S Notes"............................................. 2.2
"Reinvestment Date".............................................. 4.15(a)
"Required Filing Dates".......................................... 4.7
"Restricted Global Note"......................................... 2.16(a)
"Restricted Period".............................................. 2.16(f)
"Rule 144A Notes"................................................ 2.2
"U.S. Government Obligations".................................... 8.1(b)
SECTION 1.3 Incorporation by Reference to Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
shall be deemed incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
(a) "Commission" means the SEC;
(b) "indenture securities" means the Notes;
(c) "indenture security holder" means a Holder or Noteholder;
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(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the
Trustee; and
(f) "obligor" on the indenture securities means the Issuers or
any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is exclusive;
(c) words in the singular include the plural, and words in the
plural include the singular;
(d) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other Subdivision; and
(e) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP as in
effect from time to time, applied on a basis consistent with the most
recent audited financial statements of the Company.
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ARTICLE II
THE NOTES
---------
SECTION 2.1 Amount of Notes.
The Trustee shall authenticate Notes for original issue on the Issue
Date in the aggregate principal amount of $50,000,000, upon a written order of
the Issuers in the form of an Officers' Certificate of the Issuers. Such written
order shall specify the amount of Notes to be authenticated and the date on
which the Notes are to be authenticated.
Upon receipt of an Issuers Request and Officers' Certificate certifying
that a registration statement relating to an exchange offer specified in the
Registration Rights Agreement is effective and that the conditions precedent to
a private exchange thereunder have been met, the Trustee shall authenticate an
additional series of Notes in an aggregate principal amount not to exceed
$50,000,000 outstanding at any time for issuance in exchange for the Notes
tendered for exchange and cancellation pursuant to such exchange offer
registered under the Securities Act not bearing the Private Placement Legend or
pursuant to a Private Exchange (as defined in the Registration Rights
Agreement). Exchange Notes or Private Exchange Notes may have such distinctive
series designations and such changes in the form thereof as are specified in the
Issuers Request referred to in the preceding sentence.
SECTION 2.2 Form and Dating.
The Notes and the Trustee's certificate of authentication with respect
thereto shall be substantially in the form set forth in Exhibit A, which is
incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Issuers are subject. Any such notations, legends or endorsements shall be
furnished to the Trustee in writing. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the legend and include the form of
as-
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signment set forth in Exhibit B, Notes offered and sold in offshore transactions
in reliance on Regulation S ("Regulation S Notes") shall bear the legend and
include the form of assignment set forth in Exhibit C, and Notes offered and
sold to Institutional Accredited Investors in transactions exempt from
registration under the Securities Act not made in reliance on Rule 144A or
Regulation S ("Other Notes") shall be represented by Physical Notes bearing the
Private Placement Legend. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes shall constitute, and
are expressly made, a part of this Indenture and, to the extent applicable, the
Issuers and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and agree to be bound thereby.
The Notes may be presented for registration of transfer and exchange at
the offices of the Registrar in the Borough of Manhattan.
SECTION 2.3 Execution and Authentication.
One Officer shall sign (who shall have been duly authorized by all
requisite corporate actions) and shall attest to the Notes for the Issuers by
manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Issuers, and the Issuers shall deliver such Note to the
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Trustee for cancellation as provided in Section 2.12, for all purposes of this
Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate the Notes at the expense of the Issuers. Unless
otherwise provided in the appointment, an authenticating agent may authenticate
the Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Issuers
and Affiliates of the Issuers. Each Paying Agent is designated as an
authenticating agent for purposes of this Indenture.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Registrar and Paying Agent.
The Issuers shall maintain an office or agency (which shall be located
in the Borough of Manhattan in The City of New York, State of New York) where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Issuers, if any, in respect of the Notes and this Indenture may be
served. The Issuers hereby initially designate the office of United States Trust
Company of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ATTN:
Corporate Trust Administration, as their office or agency in the Borough of
Manhattan, The City of New York. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Issuers may have one or more
additional Paying Agents. The term "Paying Agent" includes any additional Paying
Agent. Neither the Issuers nor any Affiliate thereof may act as Paying Agent.
The Issuers may change any Paying Agent or Registrar without notice to any
Noteholder.
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The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuers shall notify the Trustee of the name and
address of any such Agent. If the Issuers fail to maintain a Registrar or Paying
Agent, or fail to give the foregoing notice, the Trustee shall act as such and
shall be entitled to compensation in accordance with Section 7.7.
The Issuers initially designate the Corporate Trust Administration
Office of the Trustee as Registrar, Paying Agent and agent for service of
notices and demands in connection with the Notes and this Indenture.
SECTION 2.5 Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Issuers or any other obligor on the Notes), and the Issuers
and the Paying Agent shall notify the Trustee of any default by the Issuers (or
any other obligor on the Notes) in making any such payment. Money held in trust
by the Paying Agent need not be segregated except as required by law and in no
event shall the Paying Agent be liable for any interest on any money received by
it hereunder. The Issuers at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any Event of Default specified
in Section 6.1(a)(i) or (ii), upon written request to the Paying Agent, require
such Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
SECTION 2.6 Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of
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the names and addresses of the Noteholders. If the Trustee is not the Registrar,
the Issuers shall furnish to the Trustee at least five Business Days before each
Interest Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Noteholders.
SECTION 2.7 Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. Every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Issuers and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Issuers shall issue and execute and, at the request
and the expense of the Issuers, the Trustee shall authenticate new Notes
evidencing such transfer or exchange at the Registrar's request. No service
charge shall be made to the Noteholder for any registration of transfer or
exchange. The Issuers may require from the Noteholder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.6, 4.15, 4.17 or 9.5 (in which
events the Issuers shall be responsible for the payment of such taxes). The
Trustee shall not be required to exchange or register a transfer of any Note for
a period of 15 days immediately preceding the selection of Notes to be redeemed
or any Note selected for redemption.
Any Holder of the Global Note shall, by acceptance of such Global Note,
agree that transfers of the beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
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Each Holder of a Note agrees to indemnify the Issuers, the Registrar
and the Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder's Note in violation of any provision of
this Indenture and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Issuers' compliance with or have
any responsibility with respect to the Issuers' compliance with any Federal or
state securities laws.
SECTION 2.8 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee, or
if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Issuers shall issue and, at the written request set forth
in an Officers' Certificate and the expense of the Issuers, the Trustee shall
authenticate a replacement Note if the Holder of such Note furnishes to the
Issuers and the Trustee evidence reasonably acceptable to them of the ownership
and the destruction, loss or theft of such Note. If required by the Trustee or
the Issuers, an indemnity bond shall be posted, sufficient in the judgment of
both to protect the Issuers, the Trustee or any Paying Agent from any loss that
any of them may suffer if such Note is replaced. The Issuers may charge such
Holder for the Issuers' reasonable expenses in replacing such Note and the
Trustee may charge the Issuers for the Trustee's expenses (including, without
limitation, reasonable attorneys' fees and disbursements) in replacing such
Note. Every replacement Note shall constitute an additional contractual
obligation of the Issuers, subject to Section 2.9.
SECTION 2.9 Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 8.1
and 8.2, on or after the date on which the conditions set forth in Section 8.1
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or 8.2 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.9 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because an Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.8, it ceases to be
outstanding unless the Trustee receives written notice that the replaced Note is
held by a bona fide purchaser in whose hands such Note is a legal, valid and
binding obligation of the Issuers.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date or on any optional Redemption Date, money sufficient to pay all accrued
interest and principal with respect to the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.10 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Issuers or any Affiliate of the Issuers shall
be disregarded as though they were not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
declaration, notice, direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Trust Officer of the
Trustee has received an Officers' Certificate stating that such Notes are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes the pledgee's right so
to act with respect to the Notes and that the pledgee is not either of the
Issuers, any other obligor or guarantor on the Notes or any of their respective
Affiliates.
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SECTION 2.11 Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Issuers
may prepare, and the Trustee shall authenticate, temporary Notes. Temporary
Notes shall be substantially in the form of definitive Notes but may have
variations that the Issuers and the Trustee consider appropriate for temporary
Notes. Without unreasonable delay, the Issuers shall prepare, and the Trustee
shall authenticate, definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment,
as the case may be. The Trustee shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall (subject to the record-retention requirements of the Exchange Act) destroy
canceled Notes shall and deliver a certificate of destruction thereof to the
Issuers. The Issuers may not reissue or resell, or issue new Notes to replace,
Notes that the Issuers have redeemed or paid, or that have been delivered to the
Trustee for cancellation.
SECTION 2.13 Defaulted Interest.
If the Issuers default on a payment of interest on the Notes, they
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, pursuant to Section 4.1 hereof, to
the Persons who are Noteholders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Issuers
shall fix such special record date and payment date and provide the Trustee at
least 20 days notice of the proposed amount of defaulted interest to be paid and
the special payment date and at the same time the Issuers shall deposit with the
Trustee the aggregate amount proposed to be paid in respect of
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such defaulted interest. At least 15 days before such special record date, the
Issuers shall mail to each Noteholder a notice that states the special record
date, the payment date and the amount of defaulted interest, and interest
payable on defaulted interest, if any, to be paid. The Issuers may make payment
of any defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Notes may
be listed and, upon such notice as may be required by such exchange, if, after
written notice given by the Issuers to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.14 CUSIP Number.
The Issuers in issuing the Notes may use a "CUSIP" number, and if so,
such CUSIP number shall be included in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuers shall
promptly notify the Trustee of any such CUSIP number used by the Issuers in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15 Deposit of Moneys.
Prior to 11:30 a.m., New York City time, on each Interest Payment Date
and Maturity Date, the Issuers shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as
the case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal and interest on Physical Notes shall be
payable at the office of the Paying Agent. The Issuers shall deliver an
Officers' Certificate to
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the Trustee, at least 5 business days before any applicable payment date,
setting forth the amount of Additional Interest due per $1,000 aggregate
principal amount of Notes.
SECTION 2.16 Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes initially shall be represented by one or more notes
in registered, global form without interest coupons (collectively, the
"Restricted Global Note"). Regulation S Notes initially shall be represented by
one or more notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Restricted
Global Note and any other global notes representing Notes, the "Global Notes").
The Global Notes shall bear legends as set forth in Exhibit D. The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, in each case for credit to an account of an Agent Member
(or, in the case of the Regulation S Global Notes, Agent Members of the
Depository holding for Euroclear System ("Euroclear") and Cedel Bank, S.A.
("CEDEL")), (ii) be delivered to the Trustee as custodian for such Depository
and (iii) bear legends as set forth in Exhibit B with respect to Restricted
Global Notes and Exhibit C with respect to Regulation S Global Notes.
Members of, or direct or indirect participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be treated by the
Issuers, the Trustee and any agent of the Issuers or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trustee or any agent of the Issuers
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
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(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Issuers that it is unwilling or unable to continue as depository for such Global
Note and the Issuers thereupon fail to appoint a successor depository or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Issuers, at their option, notify the Trustee in writing that they elect to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing a Default or an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository (in accordance with
its customary procedures).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuers
shall execute, and the Trustee shall upon receipt of a written order from the
Issuers authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuers shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in writing in exchange for
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its beneficial interest in the Global Notes, an equal aggregate principal amount
of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in Exhibit C, in each case, unless the Issuers
determine otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the commencement of
the offering of the Notes represented by a Regulation S Global Note and the
original issue date of such Notes (such period through and including such 40th
day, the "Restricted Period"), a beneficial interest in the Regulation S Global
Note may be held only through Euroclear or CEDEL, as indirect participants in
DTC, unless transferred to a Person who takes delivery in the form of an
interest in the corresponding Restricted Global Note, only upon receipt by the
Trustee of a written certification from the transferor to the effect that such
transfer is being made (i)(a) to a Person who the transferor reasonably believes
is a Qualified Institutional Buyer in a transaction meeting the requirements of
Rule 144A or (b) pursuant to another exemption from the registration
requirements under the Securities Act which is accompanied by an opinion of
counsel regarding the availability of such exemption and (ii) in accordance with
all applicable securities laws of any state of the United States or any other
jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
CEDEL.
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(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after May
26, 2001 or such other date as such Note shall be freely transferable
under Rule 144 as certified in an Officers' Certificate or (y) (1) in
the case of a transfer to an Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit E hereto or (2) in the case of a transfer to a Non-U.S. Person
(including a QIB), the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit F hereto;
provided that in the case of a transfer of a Note bearing the Private
Placement Legend for a Note not bearing the Private Placement Legend,
the Registrar has
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received an Officers' Certificate authorizing such transfer; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Issuers shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed registration of transfer of a Note
constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on such Holder's Note stating, or has otherwise advised the Issuers
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on such Holder's Note stating, or has
otherwise advised the Issuers and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on
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Rule 144A and acknowledges that it has received such information
regarding the Issuers as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Restricted Global Note, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Restricted Global Note in an amount equal to
the principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) it has received the Officers' Certificate
required by paragraph (a)(i)(x) of this Section 2.17, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Issuers to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (iii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Registrar has received an Officers'
Certificate from the Issuers to such effect.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees
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that it will transfer such Note only as provided in this Indenture.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 or this Section 2.17. The Issuers shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable notice to the Registrar.
SECTION 2.18 Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE III
OPTIONAL REDEMPTION
-------------------
SECTION 3.1 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to Paragraph 5 of the
Notes, they shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of Notes to be redeemed.
The Issuers shall give each notice provided for in this Section 3.1 at
least 60 days before the Redemption Date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officers' Certificate
stating that such redemption will comply with the conditions contained herein
and in the Notes. The notice shall include the Redemption Date, the principal
amount of Notes to be redeemed and the redemption price and, if such redemption
is during the nine month period beginning on April 15, 2001, a statement that
the redemption is concurrent with an optional redemption by the Subsidiary
Issuers of the Existing Subsidiary Notes pursuant to Paragraph 5 of the Notes
and all other information required to be furnished to the Holders pursuant to
Section 3.3.
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SECTION 3.2 Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed, on a pro rata basis, by lot or by such other
method as the Trustee may deem fair and equitable. The Trustee shall make the
selection from the Notes outstanding and not previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of such Notes selected
for redemption. The Trustee may select for redemption portions of the principal
amount of Notes that have denominations larger than $1,000. Notes and portions
of them the Trustee selects shall be in amounts of $1,000 or integral multiples
thereof. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Issuers shall mail or cause the mailing of, in the name of, at the request
of, and at the expense of the Issuers, a notice of redemption by first-class
mail to each Holder of Notes to be redeemed with a copy to each of the Trustee
and any Paying Agent.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the redemption price and the amount of accrued interest,
if any, to be paid;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price and accrued interest,
if any;
(e) that, unless the Issuers default in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and
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the only remaining right of the Holders of such Notes is to receive
payment of the redemption price upon surrender to the Paying Agent of
the Notes redeemed;
(f) if any Note is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of
such Note to be redeemed and that, on or after the Redemption Date,
upon surrender of such Note, a new Note or Notes in aggregate principal
amount equal to the unredeemed portion thereof will be issued without
charge to the Noteholder; and
(g) the CUSIP number, if any, pursuant to Section 2.14.
At the Issuers' written request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become
due and payable on the Redemption Date and at the redemption price. Upon
surrender for redemption to the Paying Agent, such Notes shall be paid at the
redemption price plus accrued interest to the Redemption Date, but interest
installments whose maturity is on or prior to such Redemption Date will be
payable on the relevant Interest Payment Dates to the Holders of record at the
close of business on the relevant record dates referred to in the Notes.
SECTION 3.5 Deposit of Redemption Price.
At least one Business Day prior to the Redemption Date, the Issuers
shall deposit with the Paying Agent in immediately available funds money
sufficient to pay the redemption price of and accrued interest on all Notes or
portions thereof to be redeemed on the Redemption Date.
If any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid on the Redemption
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Date due to the failure of the Issuers to deposit sufficient funds with the
Paying Agent, interest will continue to accrue from the Redemption Date until
such payment is made on the unpaid principal and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the date and in the
manner provided in the Notes.
SECTION 3.6 Notes Redeemed in Part.
Upon surrender to the Paying Agent of a Note that is redeemed in part,
the Issuers shall execute and the Trustee shall authenticate for the Holder a
new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE IV
COVENANTS
---------
SECTION 4.1 Payment of Notes.
The Issuers shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the
date due if the Trustee or the Paying Agent holds on such date immediately
available funds designated for and sufficient to pay such installment.
The Issuers shall pay interest on overdue principal and (to the extent
permitted by law) on overdue installments of interest at a rate equal to .5% per
annum; and the per annum interest rate of such additional interest will increase
by an additional .25% per annum for each subsequent 90-day period during which
such overdue principal and installments of interest remain unpaid, up to a
maximum additional interest rate of 2.0% per annum.
SECTION 4.2 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City of New
York, an office or agency where Notes may
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be surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Issuers in respect of the
Notes and this Indenture may be served. The Issuers will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuers shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 11.2.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Issuers will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Issuers hereby initially designate the Corporate Trust
Administration Office of the Trustee set forth in Section 11.2 as an agency of
the Issuers in accordance with Section 2.4.
SECTION 4.3 Corporate Existence.
Subject to Article V, the Issuers shall do or cause to be done, at
their own cost and expense, all things necessary to, and will cause each of
their Subsidiaries to, preserve and keep in full force and effect the existence
as a limited liability company or corporation, as the case may be, rights
(charter and statutory), licenses and/or franchises of the Issuers and each of
their Subsidiaries; provided, however, that the Issuers or any of their
Subsidiaries shall not be required to preserve any such rights, licenses or
franchises if the Board of Directors of the Company shall reasonably and in good
faith determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers or such
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Subsidiary and the loss thereof is not adverse in any material respect to the
Holders.
SECTION 4.4 Payment of Taxes and Other Claims.
The Issuers shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon them or their Subsidiaries' or
Unrestricted Subsidiaries' income, profits or property and (b) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a Lien
upon their property; provided, however, that the Issuers shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate negotiations or proceedings and for which disputed
amounts adequate reserves (in the good faith judgment of the Officers of the
Issuers) have been made.
SECTION 4.5 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) The Company shall, and shall cause each of its Subsidiaries to, at
all times cause all material properties used or useful in the conduct of their
business to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all equipment deemed
necessary in the good faith judgment of the Officers of the Company, and shall
cause to be made all repairs, renewals, replacements, betterments and
improvements thereto; provided, however, that the Issuers or any of their
Subsidiaries shall not be required to maintain, repair, renew, replace, better
or improve any such equipment if the Board of Directors of the Company shall
reasonably and in good faith determine that the maintenance thereof is no longer
desirable in the conduct of the business of the Issuers or such Subsidiaries and
the loss thereof is not adverse in any material respect to the Holders.
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(b) The Company and each of its Subsidiaries shall maintain insurance
in such amounts and covering such risks as are usually and customarily carried
with respect to similar facilities according to their respective locations.
(c) The Issuers shall and shall cause each of their Subsidiaries to
keep proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of the Issuers
and each Subsidiary of the Issuers, in accordance with GAAP consistently applied
to the Issuers and their Subsidiaries taken as a whole.
(d) The Issuers shall and shall cause each of their Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and regulations
to which they are subject, non-compliance with which would materially adversely
affect the business, prospects, earnings, properties, assets or condition
(financial or otherwise) of the Issuers and their Subsidiaries taken as a whole.
SECTION 4.6 Compliance Certificates.
(a) Each Issuer shall deliver to the Trustee, within 50 days after the
end of each of the first three quarters of each Issuer's fiscal year, and within
120 days after the end of such fiscal year, Officers' Certificates of the
Issuers signed by the Officers specified under TIA ss. 314(a)(4) stating (i)
that a review of the activities of the Issuers during the preceding fiscal
quarter or year, as the case may be, has been made under the supervision of the
signing Officers with a view to determining whether the Issuers have kept,
observed, performed and fulfilled its obligations under this Indenture, and (ii)
that, to the best knowledge of each Officer signing such certificate, the
Issuers have kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which such Officers may
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have knowledge, their status and what action the Issuers are taking or propose
to take with respect thereto).
(b) So long as (and to the extent) not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 4.7 shall be
accompanied by a written statement of the Company's independent public
accountants that in making the examination necessary for certification of such
annual financial statements nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of Article IV or of
Article V of this Indenture or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Issuers shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Issuers are taking or propose to take with
respect thereto.
(d) The Company's and Capital Corp's fiscal years end on December 31.
SECTION 4.7 Reports.
So long as any of the Notes are outstanding, whether or not the Issuers
are subject to Section 13(a) or 15(d) of the Exchange Act, the Issuers shall
file with the SEC the annual reports, quarterly reports and other documents
which the Issuers would have been required to file with the SEC pursuant to such
Sections 13(a) and 15(d) if the Issuers were so subject, such documents to be
filed with the SEC on or prior to the respective dates (the "Required Filing
Dates") by which the Issuers would have been required so to file such documents
if the Issuers were so subject. The Issuers shall also in any event within 15
days after each Required Filing Date (i) transmit by
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mail to all Holders, as their names and addresses appear in the register of
Notes maintained by the Registrar, without cost to such Holders and (ii) file
with the Trustee copies of the annual reports, quarterly reports and other
documents which the Issuers would have been required to file with the SEC
pursuant to Sections 13(a) and 15(d) of the Exchange Act if the Issuers were
subject to such Sections. The Issuers shall also comply with the other
provisions of TIA Section 314(a).
SECTION 4.8 Further Assurance to the Trustee.
The Issuers shall, upon request of the Trustee, execute and deliver
such further instruments and do such further acts as may reasonably be necessary
or proper to carry out more effectively the provisions of this Indenture.
SECTION 4.9 Limitation on Additional Indebtedness.
(a) The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, incur (as defined herein) any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness, provided,
however, that the Company and its Subsidiaries may incur Indebtedness (including
Acquired Indebtedness) and interest, premium, fees and other obligations
associated therewith if: (i) (A) in the case of Indebtedness of AOALP or any of
its Subsidiaries after giving effect to the incurrence of such Indebtedness and
the receipt and application of the proceeds thereof, the ratio of the total
Indebtedness of AOALP and its Subsidiaries to AOALP's EBITDA (determined on a
pro forma basis for the most recently ended four full fiscal quarters of AOALP
for which financial statements are available at the date of determination) is
less than (1) 5.25 to 1 if the Indebtedness is incurred prior to March 15, 2001
and (2) 5.0 to 1 if the Indebtedness is incurred on or after March 15, 2001; and
(B) in the case of Indebtedness of the Company or any of its Subsidiaries, after
giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the ratio of the total Indebtedness of the
Company and its Subsidiaries to the Company's EBITDA (determined as provided
above) is less than (1) 6.25 to 1 if the Indebtedness is incurred prior to March
15, 2001 and
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(2) 6.0 to 1 if the Indebtedness is incurred on or after March 15, 2001;
provided, however, that if the Indebtedness which is the subject of a
determination under this provision is Acquired Indebtedness, or Indebtedness
incurred in connection with the simultaneous acquisition of any Person,
business, property or assets, then such ratio shall be determined by giving
effect to (on a pro forma basis, as if the transaction had occurred at the
beginning of the four-quarter period) both the incurrence or assumption of such
Acquired Indebtedness or such other Indebtedness by the Company or AOALP, as the
case may be, and the inclusion in the Company's EBITDA or AOALP's EBITDA, as the
case may be, of the EBITDA of the acquired Person, business, property or assets,
and (ii) no Default or Event of Default shall have occurred and be continuing at
the time or as a consequence of the incurrence of such Indebtedness.
(b) The Company shall not, directly or indirectly, incur any
Indebtedness that by its terms (or by the terms of any agreement governing such
Indebtedness) is expressly made subordinate to any other Indebtedness of the
Company unless such Indebtedness is also expressly by its terms (or by the terms
of any agreement governing such Indebtedness) subordinated to the same extent
and in the same manner to the Notes; provided, however, that no Indebtedness of
the Company shall be deemed to be subordinated to any other Indebtedness of the
Company solely because such other Indebtedness is secured.
SECTION 4.10 Limitation on Indebtedness of Certain Subsidiaries.
The Company shall not permit any Subsidiary of AOALP to incur any
Indebtedness except Permitted Indebtedness or Acquired Indebtedness, provided,
however, that such Acquired Indebtedness was not incurred in connection with, or
in anticipation of, such Person becoming a Subsidiary.
SECTION 4.11 Limitation on Liens.
The Company shall not, and shall not permit any of its Subsidiaries to,
create, incur or otherwise cause or suffer to exist or become effective any
Liens of any kind (other than
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Permitted Liens) upon any property or asset of the Company or any Subsidiary
whether owned on the Issue Date or acquired after the Issue Date or on any
shares of stock or debt of any Subsidiary which owns property or assets, now
owned or hereafter acquired, or on any income or profits therefrom, or assign or
otherwise convey any right to receive income or profits thereon.
SECTION 4.12 Limitation on Restricted Payments.
(a) The Company shall not make, and shall not permit any of its
Subsidiaries to, directly or indirectly, make, any Restricted Payment prior to
January 15, 2002, except cash payments in respect of Phantom Compensation so
long as subparagraphs (i), (ii) and (iii) below are satisfied. Thereafter, the
Company shall not make, and shall not permit any of its Subsidiaries to,
directly or indirectly, make, any Restricted Payment unless:
(i) no Default or Event of Default shall have occurred and
be continuing at the time of or immediately after giving effect to such
Restricted Payment;
(ii) immediately after giving pro forma effect to such
Restricted Payment, the Company (or in the case of Phantom
Compensation, AOALP) could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under Section 4.9 hereof; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date through and including the date of such Restricted
Payment (the "Base Period") does not exceed the sum of (A)(1) in the
case of Phantom Compensation, 50% of the Company's Consolidated Net
Income before reduction for interest expense with respect to the Notes
(or in the event such Consolidated Net Income before reduction for
interest expense with respect to the Notes shall be a deficit, minus
100% of such deficit) during the Base Period, or (2) in the case of
other Restricted Payments, 50% of the Company's Consolidated Net
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Income (or in the event such Consolidated Net Income shall be a
deficit, minus 100% of such deficit) during the Base Period and (B)
100% of the aggregate Net Proceeds, including the fair market value of
securities or other property received by the Company from the issue or
sale, during the Base Period, of Equity Interests (other than
Disqualified Equity Interests or Equity Interests of the Company issued
to any Subsidiary of the Company) of the Company or any Indebtedness or
other securities of the Company convertible into or exercisable or
exchangeable for Equity Interests (other than Disqualified Equity
Interests) of the Company which have been so converted or exercised or
exchanged, as the case may be. For purposes of determining under this
clause (iii) the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property
other than cash shall be valued at its fair market value.
(b) The provisions of this covenant shall not prohibit:
(i) the agreement or commitment to make any payment or
distribution otherwise permitted under this Section 4.12 or the payment
or distribution so agreed or committed to be made as long as such
payment or distribution is made on the date of such agreement or
commitment or within 60 days thereof, provided, however, that on the
date of such agreement or commitment such payment would comply with
Section 4.12(a) hereof, it being understood that the agreement or
commitment to make such payment or distribution shall constitute
Permitted Indebtedness;
(ii) the retirement of any Equity Interests of the Company or
subordinated Indebtedness by conversion into, or by or in exchange for,
Equity Interests (other than Disqualified Equity Interests), or out of,
the Net Proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of other shares of Equity Interests of the
Company (other than Disqualified Equity Interests);
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(iii) the redemption or retirement of Indebtedness of the
Company subordinated to the Notes in exchange for, by conversion into,
or out of the Net Proceeds of, a substantially concurrent sale or
incurrence of Indebtedness (other than any Indebtedness owed to a
Subsidiary) of the Company that is contractually subordinated in right
of payment to the Notes to at least the same extent as the subordinated
Indebtedness being redeemed or retired;
(iv) the retirement of any shares of Disqualified Equity
Interests by conversion into, or by exchange for, shares of
Disqualified Equity Interests, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the
Company) of other shares of Disqualified Equity Interests; or
(v) Prior Accrued Bonus Payments, provided, however, that the
aggregate amount of all such payments made after the Issue Date does
not exceed $500,000;
provided, however, that in the case of the immediately preceding clauses (ii),
(iii) and (v), no Default or Event of Default shall have occurred and be
continuing at the time of such Restricted Payment or would occur as a result
thereof.
(c) In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date for purposes of clause (a)(iii) above, amounts
expended pursuant to clauses (b)(i) and (b)(ii) shall be included, but without
duplication, in such calculation.
(d) For purposes of calculating the net proceeds received by the
Company from the issuance or sale of its Equity Interests either upon the
conversion of, or in exchange for, Indebtedness of the Company or any
Subsidiary, such amount will be deemed to be an amount equal to the difference
of (i) the sum of (x) the principal amount or accreted value (whichever is less)
of such Indebtedness on the date of such conversion or exchange and (y) the
additional cash consideration, if any, received by the Company upon such
conversion or exchange, less any payment on account of fractional shares, minus
(ii) all ex-
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penses incurred in connection with such issuance or sale. In addition, for
purposes of calculating the net proceeds received by the Company from the
issuance or sale of its Equity Interests upon the exercise of any options or
warrants of the Company, such amount will be deemed to be an amount equal to the
difference of (i) the additional cash consideration, if any, received by the
Company upon such exercise, minus (ii) all expenses incurred in connection with
such issuance or sale.
(e) Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this covenant were computed, which calculations may be
based upon the Company's latest available financial statements, and that no
Default or Event of Default exists and is continuing and no Default or Event of
Default will occur immediately after giving effect to such Restricted Payment.
SECTION 4.13 Limitation on Subsidiaries and Unrestricted Subsidiaries.
(a) AOALP or any of its Subsidiaries may designate any Subsidiary of
AOALP (including a newly acquired or newly formed Subsidiary of AOALP) to be an
Unrestricted Subsidiary, provided that for purposes of Section 4.12 hereof:
(i) an "Investment" shall be deemed to have been made at the
time any Subsidiary of AOALP is designated as an Unrestricted
Subsidiary in an amount (proportionate to the Company's or AOALP's, as
the case may be, percentage Equity Interest in such Subsidiary) equal
to the net worth of such Subsidiary at the time that such Subsidiary is
designated as an Unrestricted Subsidiary;
(ii) at any date the aggregate of all Restricted Payments made
as Investments since the Issue Date shall exclude and be reduced by an
amount (proportionate to the Company's or AOALP's, as the case may be,
percentage Equity Interest in such Subsidiary) equal to the net worth
of any Unrestricted Subsidiary at the time that such Unre-
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stricted Subsidiary is designated a Subsidiary of AOALP, not to exceed,
in the case of any such redesignation of an Unrestricted Subsidiary as
a Subsidiary, the amount of Investments previously made by AOALP and
its Subsidiaries in such Unrestricted Subsidiary (in case of clauses
(a)(i) and (a)(ii) hereof, "net worth' shall be calculated based upon
the fair market value of the assets of such Subsidiary as of any such
date of designation); and
(iii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer.
(b) Notwithstanding clause (a) above, the Board of Directors of AOALP
or any of its Subsidiaries may not designate any Subsidiary of AOALP to be an
Unrestricted Subsidiary if, after such designation:
(i) the Company or any Subsidiary of the Company (x) provides
credit support for, or a guarantee of, any Indebtedness of such
Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness) or (y) is directly or indirectly liable
for any Indebtedness of such Subsidiary;
(ii) a default with respect to any Indebtedness of such
Subsidiary (including any right which the holders thereof may have to
take enforcement action against such Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of
the Company or any Subsidiary of the Company to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its final scheduled maturity; or
(iii) such Subsidiary owns any Equity Interests in, or owns or
holds any Lien on any property of, any Subsidiary which is not a
Subsidiary of the Subsidiary to be so designated.
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SECTION 4.14 Limitations on Investments.
The Company shall not, and shall not permit any of its Subsidiaries to,
make any Investment except (i) a Permitted Investment or (ii) an Investment by
AOALP or any of its Subsidiaries that is made in compliance with Section 4.12
hereof.
SECTION 4.15 Limitation on Certain Asset Sales; Disposition of
Proceeds.
(a) The Company shall not, and shall not permit any of its Subsidiaries
to, consummate an Asset Sale unless:
(i) the Company or such Subsidiary, as the case may be,
receives consideration at the time of such sale or other disposition at
least equal to the fair market value thereof (as determined for Asset
Sales other than eminent domain, condemnation or similar governmental
proceedings in good faith by its Board of Directors); and
(ii) either (A) not less than 85% of the consideration
received by the Company or the Subsidiary, as the case may be, from
such Asset Sale is in the form of cash or cash equivalents (those
equivalents allowed under "Temporary Cash Investments") or (B) after
giving effect to such Asset Sale the Company and its Subsidiaries hold
in the aggregate no more than $2.5 million of Asset Sale Proceeds that
are in a form other than cash or cash equivalents; and
(iii) the Asset Sale Proceeds received by the Company or such
Subsidiary are applied, to the extent the Company elects, (A) to repay
and permanently reduce outstanding Permitted Secured Indebtedness,
Existing Subsidiary Notes and/or Refinancing Indebtedness incurred to
refinance the Existing Subsidiary Notes and to permanently reduce the
commitments in respect thereof, provided, however, that such repayment
and commitment reduction occurs within 270 days following the receipt
of such Asset Sale Proceeds or (B) to an investment in assets
(including Equity Interests or other securities purchased in connection
with the ac-
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quisition of Equity Interests or property of another person) used or
useful in businesses similar or ancillary to the business of the
Company or such Subsidiary as conducted at the time of such Asset Sale,
provided, however, that such investment occurs or the Company or such
Subsidiary enters into contractual commitments to make such investment,
subject only to customary conditions (other than the obtaining of
financing), on or prior to the 180th day following receipt of such
Asset Sale Proceeds (the "Reinvestment Date") and Asset Sale Proceeds
contractually committed are so applied within 270 days following the
receipt of such Asset Sale Proceeds.
(b) Any Asset Sale Proceeds that are not applied as permitted by
Section 4.15(a)(iii) hereof shall constitute "Excess Proceeds." If at any time
the aggregate amount of Excess Proceeds exceeds $3 million, the Issuers shall
offer (an "Excess Proceeds Offer") to purchase from all holders of Notes,
pursuant to procedures set forth herein, the maximum principal amount of Notes
that may be purchased with such Excess Proceeds at a purchase price in cash
equal to 100% of the principal amount thereof plus accrued interest, if any, to
the date of the purchase. To the extent that the aggregate amount of Notes
tendered pursuant to such Excess Proceeds Offer is less than the amount of
Excess Proceeds, the Company may use such portion of the Excess Proceeds that is
not used to purchase Notes so tendered for general corporate purposes. If the
aggregate principal amount of Notes tendered pursuant to such Excess Proceeds
offer is more than the amount of the Excess Proceeds, the Notes tendered will be
repurchased on a pro rata basis or by such other method as the Trustee shall
deem fair and equitable. Upon the closing of any repurchase of Notes tendered
pursuant to such Excess Proceeds Offer, the amount of Excess Proceeds shall be
deemed to be zero.
(c) If the Issuers are required to make an Excess Proceeds Offer, the
Issuer shall mail, within 30 days following the Reinvestment Date, a notice to
the holders of the Notes stating, among other things:
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(i) that such holders have the right to require the Issuers to
apply the Excess Proceeds to repurchase such Notes at a purchase price
in cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase;
(ii) the purchase date, which shall be no earlier than 30 days
and not later than 60 days from the date such notice is mailed;
(iii) the instructions, determined by the Issuers, that each
holder of Notes must follow in order to have such Notes repurchased;
and
(iv) the calculations used in determining the amount of Excess
Proceeds to be applied to the repurchase of such Notes.
(d) In the event of the transfer of substantially all (but not all) of
the assets of the Company or any Subsidiary of the Company or substantially all
(but not all) of the assets of any division or line of business of the Company
or any Subsidiary of the Company as an entirety to a Person in a transaction
permitted under Section 5.1 hereof, the successor corporation shall be deemed to
have sold the assets of the Company, the Subsidiary or the division or line of
business, as the case may be, not so transferred for purposes of this covenant,
and shall comply with the provisions of this covenant with respect to such
deemed sale as if it were an Asset Sale. In addition, the fair market value of
such assets of the Company, the Subsidiary or the division or line of business,
as the case may be, deemed to be sold shall be deemed to be Asset Sale Proceeds
for purposes of this Section 4.15.
(e) Any Excess Proceeds Offer shall be made in substantially the same
manner as a Change of Control Offer. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations to the extent such laws and regulations are applicable to an
Excess Proceeds Offer.
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(f) Notwithstanding any of the foregoing, no transaction or action
otherwise permitted under this Section 4.15 shall occur until the Trustee shall
have received an Officers' Certificate and an opinion of Counsel as to (i) the
Company's compliance with this Section 4.15 and (ii) the fulfillment of all
conditions precedent to such transaction or action.
SECTION 4.16 Limitation on Transactions with Affiliates.
(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 or any of its Subsidiaries (including entities in which the
Company or any Subsidiary thereof owns a minority interest) or holder of 10% or
more of an Issuer's Equity Interests (each such transaction, an "Affiliate
Transaction") or extend, renew, waive or otherwise modify the terms of any
Affiliate Transaction entered into prior to the Issue Date unless:
(i) such Affiliate Transaction is solely between or among the
Company and its Wholly-Owned Subsidiaries;
(ii) such Affiliate Transaction is solely between or among
Wholly-Owned Subsidiaries of the Company;
(iii) such Affiliate Transaction is for reasonable fees and
compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Subsidiary
thereof as determined in good faith by the Board of Directors or senior
management of the Company or of such Subsidiary, as the case may be; or
(iv) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as favorable as
the terms which could be ob-
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tained by the Company or such Subsidiary, as the case may be, in a
comparable transaction made on an arm's length basis between
unaffiliated parties.
(b) In any Affiliate Transaction involving an amount or having a value
in excess of $250,000 in any one year which is not permitted under Section
4.16(a)(i) or (a)(ii), the Company or such Subsidiary, as the case may be, must
obtain a resolution of its Board of Directors certifying that such Affiliate
Transaction complies with 4.16(a)(iv). In transactions with a value in excess of
$2.5 million which are not permitted under Section 4.16(a)(i) or (a)(ii), the
Company or such Subsidiary, as the case may be, must obtain a written opinion as
to the fairness of such a transaction, from a financial point of view, from an
Independent Financial Advisor.
(c) The provisions of Sections 4.16(a) and (b) shall not apply to (i)
the payment of reasonable annual compensation to directors or executive officers
of the Issuers, (ii) payments to ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to the employment
agreement by and between ▇▇▇▇▇ Outdoor Advertising, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ as in
effect on the Issue Date and (iii) Restricted Payments made in compliance with
Section 4.12 hereof.
SECTION 4.17 Change of Control.
(a) Within 30 days of the occurrence of a Change of Control, the
Issuers shall notify the Trustee in writing of such occurrence and shall make an
offer to purchase (the "Change of Control Offer") the outstanding Notes at a
purchase price equal to 101% of the principal amount thereof plus any accrued
and unpaid interest thereon to the Change of Control Payment Date (as
hereinafter defined) (such applicable purchase price being hereinafter referred
to as the "Change of Control Purchase Price") in accordance with the procedures
set forth herein.
(b) Within 30 days of the occurrence of a Change of Control, the
Issuers also shall (x) send a notice of the Change of Control Offer at least
once to the Dow ▇▇▇▇▇ News Service or similar business news service in the
United States and (y) send
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by first-class mail, postage prepaid, to the Trustee and to each Holder of the
Notes, at the address appearing in the register maintained by the Registrar of
the Notes, a notice stating:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.17 and that all Notes tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than 20 business days
from the date such notice is mailed (the "Change of Control Payment
Date"));
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that, unless the Issuers default in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(v) that (x) Holders of Physical Notes accepting the offer to
have their Notes purchased pursuant to a Change of Control Offer will
be required to surrender the Notes to the Paying Agent at the address
specified in the notice and (y) Holders of beneficial interests under a
Global. Note accepting the offer to have such interests purchased
pursuant to a Change of Control Offer will be required to notify the
Depository by telegram, telex or facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
interests to be purchased and a statement that such Holder is electing
to have such interests purchased; in each case prior to the close of
business on the Business Day preceding the Change of Control Payment
Date;
(vi) that Holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than
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the close of business on the third Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Notes delivered for purchase, and a statement that such holder is
withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to be
unpurchased portion of the Notes surrendered, provided that each Note
purchased and each such new Note issued shall be in an original
principal amount in denominations of $1,000 and integral multiples
thereof;
(viii) any other procedures that a holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(ix) the name and address of the Paying Agent.
(c) On the Change of Control Payment Date, the Issuers shall, to the
extent lawful, (i) accept for payment all Notes or portions thereof or
beneficial interests under a Global Note tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof or beneficial interests, so
tendered, (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Issuers and (iv) deliver to the Registrar an Officers'
Certificate stating the amount of beneficial interests so tendered and cause the
Registrar to reflect on its books and records the decrease in principal amount
of a Global Note in an amount equal to the principal amount of the beneficial
interest in a Global Note so tendered. The Paying Agent shall promptly (1) mail
to each Holder of Notes so accepted and (2) cause to be credited to the
respective accounts of the Holders under a Global Note of beneficial interests
so accepted payment in an amount equal to the Change of Control Purchase Price
for such Notes (which such payment shall, in the case of Holders of beneficial
interests in a Global Note, be through the facili-
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ties of the Depository), and the Issuers shall execute and issue, and the
Trustee shall promptly authenticate and mail to such Holder, a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered and shall
issue a new Global Note equal in principal amount to any unpurchased portion of
beneficial interests so surrendered; provided, however, that each such new Note
shall be issued in an original principal amount in denominations of $1,000 and
integral multiples thereof.
(d) If the Credit Facility is in effect, or any Existing Subsidiary
Notes are outstanding, or any other Permitted Secured Indebtedness or
Refinancing Indebtedness incurred to refinance the Existing Subsidiary Notes (to
the extent such Refinancing Indebtedness contains provisions requiring repayment
or an offer to repay upon such Change of Control or prohibiting or limiting the
repurchase of the Notes as described above) is outstanding, then at the time of
the occurrence of a Change of Control, prior to the mailing of the notice to
holders described in clause (b) hereof, but in any event within 30 days
following any Change of Control, the Company shall (i) repay (or cause to be
repaid) in full all obligations and terminate (or cause to be terminated) all
commitments under such Permitted Secured Indebtedness, Existing Subsidiary Notes
and/or Refinancing Indebtedness and/or such Refinancing Indebtedness or offer to
repay in full all obligations and terminate all commitments under such Permitted
Secured Indebtedness, Existing Subsidiary Notes and/or such Refinancing
Indebtedness of each lender or holder who has accepted such offer or (ii) obtain
(or cause to be obtained) the requisite consent under such Permitted Secured
Indebtedness to permit the repurchase of the Notes pursuant to this Section
4.17. The Company must first comply with the first sentence of this clause (d)
before it shall be required to purchase Notes in the event of a Change of
Control, provided, however, that the Company's failure to comply with the first
sentence of this clause (d) constitutes an Event of Default under Section
6.1(a)(iii) hereof. Failure by the Issuers to make a Change of Control Offer
when required pursuant to this Section 4.17 shall constitute an Event of Default
hereunder.
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(e) If the Company or any of its Subsidiaries have issued any
outstanding (i) Indebtedness that is subordinated in right of payment to the
Notes or (ii) Preferred Equity Interests, and the Company or such Subsidiary is
required to make a Change of Control Offer or to make a distribution with
respect to such subordinated Indebtedness or Preferred Equity Interests in the
event of a change of control, the Company and such Subsidiary shall not
consummate any such offer or distribution with respect to such subordinated
Indebtedness or Preferred Equity Interests until such time as the Issuers shall
have paid the Change of Control Purchase Price in full to the holders of Notes
that have accepted the Issuers' Change of Control Offer and shall otherwise have
consummated the Change of Control offer made to holders of the Notes.
(f) The Company shall not issue Indebtedness that is subordinated in
right of payment to the Notes or Preferred Equity Interests with change of
control provisions requiring the payment of such Indebtedness or Preferred
Equity Interests prior to the payment of the Notes in the event of a Change in
Control hereunder.
(g) In the event that a Change of Control occurs and the holders of
Notes exercise their right to require the Issuers to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Issuers will comply with the requirements of Rule
14e-1 as then in effect with respect to such repurchase.
SECTION 4.18 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any of its Subsidiaries to (i) pay dividends or make any other distributions
to the Company or any Subsidiary on its Equity Interests, (ii) pay any
Indebtedness owed to the Company or any Subsidiary, (iii) make loans or advances
to the Company or any
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Subsidiary thereof or (iv) transfer any of its properties or assets to the
Company or any Subsidiary thereof, except, in each case, for such encumbrances
or restrictions existing under or contemplated by or by reason of (w) the Notes
or this Indenture, (x) any restrictions existing under or contemplated by
agreements in effect on the Issue Date, including, without limitation,
restrictions under the New Credit Facility as in effect on the Issue Date and
comparable provisions in the agreements evidencing any other Permitted Secured
Indebtedness, the Existing Subsidiary Notes and the related indenture, (y) any
restrictions, with respect to a Subsidiary of the Company that is not a
Subsidiary of the Company on the Issue Date, in existence at the time such
Person becomes a Subsidiary of the Company (but not created in contemplation of
such Person becoming a Subsidiary of the Company and which encumbrance or
restriction is not applicable to any Person or the property or assets of any
Person other than such Person or the property or assets of such Person so
acquired) and (z) any restrictions existing under any agreement that refinances
or replaces an agreement containing a restriction permitted by clause (w), (x)
or (y) above, provided, however, that the terms and conditions of any such
restrictions are not materially less favorable in the aggregate to the holders
of the Notes than those under or pursuant to the agreement being replaced or the
agreement evidencing the Indebtedness refinanced or replaced.
SECTION 4.19 Limitation on Equity Interests of Subsidiaries.
The Company shall at all times directly or indirectly own 100% of the
Equity Interests of its Subsidiaries other than limited partnership interests in
AOALP held by ASSKM, L.P., a California limited partnership, in an amount not to
exceed 30.0% of the total outstanding Equity Interest of AOALP. The Company
shall not (i) sell, pledge, hypothecate or otherwise convey or dispose of any
Equity Interests of a Subsidiary (other than pursuant to an agreement evidencing
Permitted Secured Indebtedness, Refinancing Indebtedness incurred to refinance
the Existing Subsidiary Notes or a successor facility or to the Company or a
Wholly-Owned Subsidiary of the Company) or
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(ii) permit any of its Subsidiaries to issue any Equity Interests, other than to
the Company or a Subsidiary of the Company. The foregoing restrictions shall not
apply to an Asset Sale made in compliance with Section 4.15 hereof or the
issuance of Preferred Equity Interests in compliance with Section 4.9 hereof.
SECTION 4.20 Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, and shall not permit any of
its Subsidiaries to create or acquire, any Subsidiary other than (i) a
Wholly-Owned Subsidiary existing as of the Issue Date, (ii) a Wholly-Owned
Subsidiary that is acquired or created after the date hereof or (iii) an
Unrestricted Subsidiary.
SECTION 4.21 Limitation on Sale and Lease-back Transactions.
The Company shall not, and shall not permit any of its Subsidiaries to,
enter into any Sale and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least equal to the fair
market value of the property sold and (ii) immediately prior to and after giving
effect to the Attributable Indebtedness in respect of such Sale and Lease-Back
Transaction, the Company could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.9 hereof.
SECTION 4.22 Payments for Consent.
None of the Issuers or any of their Affiliates, nor any of the Issuers'
Subsidiaries or any of their Affiliates, shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any holder of any Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions hereof or the Notes unless
such consideration is offered to be paid or agreed to be paid to all holders of
the Notes which so consent, waive or agree to amend in the time frame set forth
in the so-
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licitation documents relating to such consent, waiver or agreement.
SECTION 4.23 Line of Business.
The Company shall not, and shall not permit any of its Subsidiaries to,
engage in any business other than the owning, operating or managing of outdoor
advertising businesses or out-of-home media businesses and related or ancillary
activities.
SECTION 4.24 Limitation on Additional Indebtedness of the Issuers.
The Issuers will not incur any Indebtedness which is senior to or pari
passu with the Notes other than Permitted Indebtedness.
SECTION 4.25 Limitation of Guarantees by Subsidiaries.
The Company will not permit any of its Subsidiaries, directly or
indirectly, by way of the pledge of any intercompany note or otherwise, to
assume, guarantee or in any other manner become liable with respect to any
Indebtedness of the Company, unless, in any such case (i) such Subsidiary
executes and delivers a supplemental indenture to this Indenture, providing a
guarantee of payment of the Notes by such Subsidiary (the "Guarantee") and (ii)
if any such assumption, guarantee or other liability of such Subsidiary is
provided in respect of Indebtedness that is expressly subordinated to the Notes,
the guarantee or other instrument provided by such Subsidiary in respect of such
subordinated Indebtedness shall be subordinated to the Guarantee substantially
to the same extent as such Indebtedness is subordinated to the Notes.
Notwithstanding the foregoing, any such Guarantee by a Subsidiary of
the Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged, without any further action required on
the part of the Trustee or any holder, upon (a) the unconditional release of
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such Subsidiary from its liability in respect of the Indebtedness in connection
with which such Guarantee was executed and delivered pursuant to the preceding
paragraph or (b) any sale or other disposition (by merger or otherwise) to any
Person which is not a Subsidiary of the Company of all of the Company's Equity
Interests in, or all or substantially all of the assets of, such Subsidiary;
provided that (1) such sale or disposition of such Equity Interests or assets is
otherwise in compliance with the terms of this Indenture and (2) such
assumption, guarantee or other liability of such Subsidiary has been released by
the holders of the other Indebtedness so guaranteed.
SECTION 4.26 Waiver of Stay, Extension or Usury Laws.
Each of the Issuers covenants (to the extent permitted by law) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Issuers from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent permitted by
law) each of the Issuers hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE V
SUCCESSOR CORPORATION
---------------------
SECTION 5.1 Merger, Consolidation or Sale of Assets.
(a) The Company shall not and shall not permit any of its Subsidiaries
to consolidate with, merge with or into, or transfer all or substantially all of
its assets (as an entirety
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or substantially as an entirety in one transaction or a series of related
transactions), to any Person unless:
(i) the Company or such Subsidiary, as the case may be, shall
be the continuing Person, or the Person (if other than the Company or
such Subsidiary) formed by such consolidation or into which the Company
or such Subsidiary, as the case may be, is merged or to which the
properties and assets of the Company or such Subsidiary, as the case
may be, are transferred shall be a corporation, partnership or limited
liability company organized and existing under the laws of the United
States or any State thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all of the
obligations of the Company or such Subsidiary, as the case may be,
under the Notes and this Indenture, and the obligations under this
Indenture shall remain in full force and effect; provided that at any
time the Company or its successor is a partnership or a limited
liability company, there shall be a co-issuer of the Notes that is a
corporation;
(ii) immediately before and immediately after giving effect to
such transaction, no Default or Event of Default shall have occurred
and be continuing;
(iii) immediately after giving effect to such transaction on a
pro forma basis the Company or such Person could incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) under
Section 4.9 hereof; and
(iv) immediately thereafter, the Company, such Subsidiary or
the other surviving entity, as the case may be, shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company or such Subsidiary, as the case may be,
immediately prior to such transaction.
(b) In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Company
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shall deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an opinion
of counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this provision and that
all conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation, merger or any transfer of all or substantially
all of the assets of an Issuer in accordance with Section 5.1, the Surviving
Entity formed by such consolidation or into which such Issuer is merged or to
which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, an Issuer under this Indenture with the same
effect as if such Surviving Entity had been named as an Issuer herein.
ARTICLE VI
DEFAULT AND REMEDIES
--------------------
SECTION 6.1 Events of Default.
(a) An "Event of Default" occurs if:
(i) the Issuers default in the payment of the principal of, or
premium, if any, on, the Notes when due; or
(ii) the Issuers default in the payment of interest on the
Notes when the same becomes due and payable and any such Default
continues for a period of 30 days; or
(iii) the Issuers default in the observance or performance of
the covenants set forth in Section 4.15 or Section 4.17 hereof; or
(iv) the Issuers default in the performance of, or breach, any
covenant contained in the Notes or this Indenture (other than defaults
specified in clause (i), (ii) or (iii) above), and such default or
breach continues for a
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period of 30 days after written notice to the Issuers by the Trustee or
to the Issuers and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Notes; or
(v) the Issuers or any Subsidiary fails to pay when due
principal, interest or premium on one or more classes or issues of
other Indebtedness aggregating $3,000,000 or more in principal amount,
or any such Indebtedness aggregating $3,000,000 or more in principal
amount is accelerated prior to the express maturity thereof; or
(vi) one or more final judgments, orders or decrees which can
no longer be appealed for the payment of money in excess of $3,000,000,
either individually or in an aggregate amount (which are not paid or
covered by third party insurance by financially sound insurers that
have not disclaimed coverage), shall be entered against an Issuer, any
Subsidiary thereof or any of their respective properties and shall not
be discharged and there shall have been a period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason
of pending appeal or otherwise, shall not be in effect; or
(vii) any of the Guarantees ceases to be in full force and
effect or any of the Guarantees is declared to be null and void and
unenforceable or any of the Guarantees is found to be invalid or any of
the Guarantors denies its liability under its Guarantee (other than by
reason of a release of such Guarantor in accordance with the terms of
this Indenture); or
(viii) an Issuer or any Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
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(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors or
(E) shall generally not pay its debts when such debts
become due or shall admit in writing its inability to pay its
debts generally; or
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against an Issuer or any Subsidiary
in an involuntary case or proceeding,
(B) appoints a Custodian of an Issuer or any
Subsidiary for all or substantially all of its properties, or
(C) orders the liquidation of an Issuer or any
Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 consecutive days; provided, however, that if the entry of such order
or decree is appealed and dismissed on appeal then the Event of Default
hereunder by reason of the entry of such order or decree shall be
deemed to have been cured.
(b) For purposes of this Section 6.1, the term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official
charged with maintaining possession or control over property for one or more
creditors.
(c) Subject to the provisions of Sections 7.1 and 7.2, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to a Trust officer at the corporate trust
office of the Trustee by the Issuers or any other Person.
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SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.1(a)(viii) or (ix) with respect to the Issuers or any Subsidiary
thereof) occurs and is continuing, the Holders of at least 25% in aggregate
principal amount of the outstanding Notes may, by written notice to the Issuers
and the Trustee, and the Trustee upon the written request of the Holders of not
less than 25% in aggregate principal amount of the outstanding Notes, shall
declare the principal of and accrued interest on all the Notes to be due and
payable immediately. Upon any such declaration such principal, premium, if any,
and accrued interest shall become due and payable immediately. If an Event of
Default specified in Section 6.1(a)(viii) or (ix) with respect to the Issuers or
any Subsidiary occurs and is continuing, then the principal of, premium, if any,
and accrued interest on all the Notes 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 Holders of a majority in aggregate principal amount of
outstanding Notes may, by written notice to the Trustee, rescind such
declaration or event of acceleration if all existing Events of Default have been
cured or waived, other than the non-payment of principal of, premium, if any,
and accrued interest on the Notes that have become due solely as a result of
such acceleration and if the rescission of acceleration would not conflict with
any judgment or decree. No such rescission shall affect any subsequent default
or impair any right consequent thereto.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes may
be enforced by the Trustee even if the Trustee does not possess any of the Notes
or does not produce any of
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them in the proceeding. A delay or omission by the Trustee or any Noteholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of at least a majority in
aggregate principal amount of the outstanding Notes by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default specified in Section 6.1(a)(i) or (ii) or in respect of any provision
hereof which cannot be modified or amended without the consent of the Holder so
affected pursuant to Section 9.2. When a Default or Event of Default is so
waived, it shall be deemed cured and ceases.
SECTION 6.5 Control by Majority.
The Holders of at least a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it; provided, however, that the Trustee may refuse to follow
any direction that (i) conflicts with law or this Indenture, (ii) the Trustee
determines may be unduly prejudicial to the rights of another Noteholder, or
(iii) may involve the Trustee in personal liability unless the Trustee has asked
for and received indemnification reasonably satisfactory to it in its sole
discretion against any loss, liability or expense caused by its following such
direction; and provided, further, that the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction.
SECTION 6.6 Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this Indenture
or the Notes unless:
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(a) the Holder or Holders give to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount
of the outstanding Notes make a written request to the Trustee to
pursue a remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity reasonably satisfactory to the Trustee in its
sole discretion against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested,
provision of indemnity by the Holders; and
(e) during such 60-day period the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a written direction inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of or accrued interest on
such Note on or after the respective due dates set forth in such Note.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on a Note, on or after
the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
such Holder.
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SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or (ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Issuers or any other obligor on the
Notes for the whole amount of principal and accrued interest remaining unpaid,
together with interest overdue on principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the Interest Rate and such further amount as shall be sufficient to
cover the costs and expenses of collection (including counsel fees and
expenses), including all sums due and owing to the Trustee pursuant to Section
7.7 hereof.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Noteholders allowed in any judicial proceedings relative to
the Issuers or the Subsidiaries of the Issuers (or any other obligor upon the
Notes), their respective creditors or property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Noteholder to make
such payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Noteholders, to pay to the Trustee
any amounts due the Trustee under Section 7.7. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such proceeding.
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SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall
pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for interest;
Third: to Holders for principal amounts owing under the Notes, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal; and
Fourth: to the Issuers.
The Trustee, upon prior written notice to the Issuers, may fix a record
date and payment date for any payment to Noteholders pursuant to this Section
6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit instituted by the Trustee, a suit
instituted by a Holder pursuant to Section 6.7, or a suit instituted by Holders
of more than 10% in aggregate principal amount of the outstanding Notes.
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SECTION 6.12 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Trustee and the Holders shall
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.
ARTICLE VII
TRUSTEE
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SECTION 7.1 Duties of Trustee.
(a) If a Trust Officer of the Trustee has received written notice that
an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default actually known
to the Trustee:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
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opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture but need not verify the contents
thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section 7.1.
(ii) In the absence of bad faith on its part, the Trustee
shall not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its 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 reasonable indemnity against such risk or liability
is not reasonably assured to it. The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity satisfactory to it in
its sole discretion against any loss, liability or expense.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d), (f) and (g) of this Section
7.1 and the requirements of the TIA.
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(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) The Trustee may refuse to perform any duty or exercise any right or
power unless it is provided adequate funds to enable it to do so and it receives
indemnity reasonably satisfactory to it in its sole discretion against any loss,
liability, fee or expense.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Issuers, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to
the provisions of Section 11.5. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
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(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
(other than the negligence or willful misconduct of an agent who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers, provided that the Trustee's
conduct does not constitute negligence or bad faith.
(e) Before taking or refraining from taking any action, the
Trustee may consult with counsel and the advice or opinion of such
counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Issuers or their
respective Subsidiaries and Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes and it shall not be
accountable for the Issuers' use of the proceeds from the issuance of the Notes,
and it shall not be responsible for any statement of the Issuers in this
Indenture or any document issued in connection with the sale of Notes or any
statement in the Notes other than the Trustee's certificate of authentication.
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SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to the Notes occurs
and is continuing and is known to the Trustee, the Trustee shall mail to each
Noteholder notice of the Default or Event of Default within 90 days after the
occurrence thereof. Except in the case of a Default or an Event of Default under
Section 6.1(a)(i) or (ii), the Trustee may withhold such notice to the
Noteholders if a committee of its Trust officers in good faith determines that
withholding such notice is in the interest of Noteholders.
SECTION 7.6 Reports by Trustee to Holders.
To the extent required by TIA ss. 313(a), within 60 days after July of
each year commencing with July , 1999 and for as long as there are Notes
outstanding hereunder, the Trustee shall mail to each Noteholder the Issuers'
brief report dated as of such date that complies with TIA ss. 313(a); provided,
however, that no report need be transmitted if no such event listed in TIA ss.
313(a) has occurred within such period. The Trustee also shall comply with TIA
ss. 313(b) and TIA ss. 313(c) and (d). A copy of such report at the time of its
mailing to Noteholders shall be filed with the SEC, if required, and each stock
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange, and the Trustee shall comply with TIA ss. 313(d).
SECTION 7.7 Compensation and Indemnity.
The Issuers and the Guarantors (on a joint and several basis) shall pay
to the Trustee, the Paying Agent and the Registrar from time to time such
reasonable compensation for their respective services rendered hereunder as may
be agreed in writing from time to time. The Trustee's, the Paying Agent's and
the Registrar's compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Issuers (on a joint and several basis) shall
reimburse the
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Trustee, the Paying Agent and the Registrar upon request for all reasonable
out-of-pocket disbursements, expenses and advances (including fees and expenses
of counsel) incurred or made by each of them in addition to the compensation for
their respective services. Such expenses shall include the reasonable
compensation, out-of-pocket disbursements and expenses of the Trustee's, the
Paying Agent's and the Registrar's agents and counsel.
The Issuers and the Guarantors shall jointly and severally indemnify
the Trustee, the Paying Agent and the Registrar for, and hold each of them
harmless against, any claim, demand, expense (including but not limited to
attorneys' fees and expenses), loss or liability incurred by each of them
arising out of or in connection with the administration of this Indenture and
their respective duties hereunder without negligence or bad faith on its part.
Each of the Trustee, the Paying Agent and the Registrar shall notify the Issuers
promptly of any claim asserted against it for which it may seek indemnity.
However, failure by the Trustee, the Paying Agent or the Registrar to so notify
the Issuers shall not relieve the Issuers of their obligations hereunder. The
Issuers need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee, the Paying Agent or the Registrar through the
Trustee's, the Paying Agent's or the Registrar's, as the case may be, negligence
or bad faith.
To secure the Issuers' and the Guarantors' payment obligations in this
Section 7.7, each of the Trustee, the Paying Agent and the Registrar shall have
a lien prior to the Notes on all money or property held or collected by it, in
its capacity as Trustee, Paying Agent or Registrar, as the case may be, except
money or property held in trust to pay principal of or interest on particular
Notes. Such lien and indemnity shall survive the satisfaction, discharge and
termination of this Indenture, including the termination or rejection hereof in
any bankruptcy proceeding.
When any of the Trustee, the Paying Agent and the Registrar incurs
expenses or renders services after an Event of Default specified in Section
6.1(a)(viii) or (ix) occurs, the
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expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuers in
writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the Issuers' consent, which consent shall not be
unreasonably withheld. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A succes-
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sor Trustee shall mail notice of its succession to each Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 25% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Issuers' obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be the
successor Trustee, provided such corporation shall be otherwise qualified and
eligible under this Article VII.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b); provided, however, that there shall be excluded from the operation of
TIA ss. 310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Issuers
are outstanding if the requirements for such exclusion set forth in TIA
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ss. 310(b)(1) are met. The provisions of TIA ss. 310 shall apply to the Issuers,
as obligors of the Notes, and to any person directly or indirectly controlling,
controlled by, or under common control with the Issuers.
SECTION 7.11 Preferential Collection of Claims Against Issuers.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The
provisions of TIA ss. 311 shall apply to the Issuers, as obligors on the Notes.
ARTICLE VIII
DISCHARGE OF INDENTURE: DEFEASANCE
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SECTION 8.1 Termination of Issuers' Obligations.
The Issuers may terminate its obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.1, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid) have been
delivered to the Trustee for cancellation and the Issuers have paid all sums
payable by them hereunder, or if:
(a) pursuant to Article III, the Issuers shall have given
notice to the Trustee and mailed a notice of redemption to each Holder
of the redemption of all of the Notes under arrangements satisfactory
to the Trustee for the giving of such notice;
(b) the Issuers shall have irrevocably deposited or caused to
be deposited with the Trustee or a trustee satisfactory to the Trustee,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, money or direct non-callable
obligations of, or non-callable obligations guar-
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anteed by, the United States of America for the payment of which
guarantee or obligation the full faith and credit of the United States
is pledged ("U.S. Government Obligations") maturing as to principal and
interest in such amounts and at such times as are sufficient without
consideration of any reinvestment of such interest, to pay principal of
and interest on the outstanding Notes to redemption, provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of said
principal and interest with respect to the Notes; and
(c) the Issuers shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for the termination of the Issuers'
obligations under the Notes and this Indenture have been complied with.
Notwithstanding the foregoing paragraph, the Issuers' obligations in
Sections 2.6, 2.7, 2.8, 2.9, 4.1, 4.2, 7.7, 7.8, 8.4, 8.5 and 10.1 shall survive
until the Notes are no longer outstanding. After the Notes are no longer
outstanding, the Issuers' obligations in Sections 7.7 and 8.5 shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Issuers' obligations under the
Notes and this Indenture except for those surviving obligations specified above.
SECTION 8.2 Legal Defeasance and Covenant Defeasance.
(a) The Issuers may, at their option by Board Resolutions, at any time,
with respect to the Notes, elect to have either paragraph (b) or paragraph (c)
below be applied to the outstanding Notes upon compliance with the conditions
set forth in paragraph (d).
(b) Upon the Issuers' exercise under paragraph (a) of the option
applicable to this paragraph (b), the Issuers shall be deemed to have been
released and discharged from their
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obligations with respect to the outstanding Notes on the date the conditions set
forth below are satisfied (hereinafter, "legal defeasance"). For this purpose,
such legal defeasance means that the Issuers shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Notes, which
shall thereafter be deemed to be "outstanding" only for the purposes of
paragraph (e) below and the other Sections of and matters under this Indenture
referred to in (i) and (ii) below, and to have satisfied all their other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Issuers, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of and interest on such Notes when such payments are
due, (ii) the Issuers' obligations with respect to such Notes under Sections
2.6, 2.7, 2.8, 2.9, 4.2, 7.7, 7.8, 8.4 and 8.5, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Section
8.2. Subject to compliance with this Section 8.2, the Issuers may exercise their
option under this paragraph (b) notwithstanding the prior exercise of their
option under paragraph (c) below with respect to the Notes.
(c) Upon the Issuers' exercise under paragraph (a) of the option
applicable to this paragraph (c), the Issuers shall be released and discharged
from their obligations under any covenant contained in Article V and in Sections
4.6 through 4.24 with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Notes shall thereafter be deemed to be not "outstanding" for the purpose
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Notes, the Issuers may omit to comply with and shall have no liability in
respect
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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 Section 6.1 nor will any
judgment default or default in respect of other Indebtedness constitute a
Default or an Event of Default under Section 6.1(a)(v) or (vi), but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Issuers shall irrevocably have deposited or caused to
be deposited with the Trustee 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 Notes, (A)
money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal of and interest in respect thereof
in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge principal of and interest on
the outstanding Notes on the Maturity Date of such principal or
installment of principal or interest in accordance with the terms of
this Indenture and of such Notes; provided, however, that the Trustee
(or other qualifying trustee) shall have received an irrevocable
written order from the Issuers instructing the Trustee (or other
qualifying trustee) to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Notes;
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(ii) no Default or Event of Default or event which with notice
or lapse of time or both would become a Default or an Event of Default
with respect to the Notes shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 6.1(a)(viii) and (ix) are
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);
(iii) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other agreement or instrument to
which the Issuers are parties or by which they are bound;
(iv) in the case of an election under paragraph (b) above, the
Issuers shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the
date of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for Federal income tax
purposes as a result of such legal defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such legal defeasance had not
occurred;
(v) in the case of an election under paragraph (c) above, the
Issuers shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred;
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(vi) in the case of an election under either paragraph (b) or
(c) above, an Opinion of Counsel to the effect that, (x) the trust
funds will not be subject to any rights of any other holders of
Indebtedness of the Issuers, and (y) after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable Bankruptcy Law; provided, however, that if a court were to
rule under any such law in any case or proceeding that the trust funds
remained property of the Issuers, no opinion need be given as to the
effect of such laws on the trust funds except the following: (A)
assuming such trust funds remained in the Trustee's possession prior to
such court ruling to the extent not paid to Holders of Notes, the
Trustee will hold, for the benefit of the Holders of Notes, a valid and
enforceable security interest in such trust funds that is not avoidable
in bankruptcy or otherwise, subject only to principles of equitable
subordination, (B) the Holders of Notes will be entitled to receive
adequate protection of their interests in such trust funds if such
trust funds are used, and (C) no property, rights in property or other
interests granted to the Trustee or the Holders of Notes in exchange
for or with respect to any of such funds will be subject to any prior
rights of any other Person, subject only to prior Liens granted under
Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of
any other Bankruptcy Law having the same effect), but still subject to
the foregoing clause (B); and
(vii) the Issuers shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (A)
all conditions precedent provided for relating to either the legal
defeasance under paragraph (b) above or the covenant defeasance under
paragraph (c) above, as the case may be, have been complied with and
(B) if any other Indebtedness of the Issuers shall then be outstanding,
such legal defeasance or covenant defeasance will not violate the
provisions of the agreements or instruments evidencing such
Indebtedness.
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(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d)
above in respect of the outstanding Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent (other than the
Issuers or any of their respective Affiliates) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Anything in this Section 8.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request,
in writing, by the Issuers any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
SECTION 8.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.1 and 8.2, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of and interest on the Notes.
The Trustee shall be under no obligation to invest such trust money
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or U.S. Government Obligations except as it may agree with the Issuers in
writing. The Trustee shall not be liable for any losses incurred in connection
with such investments.
SECTION 8.4 Repayment to Issuers.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee shall promptly pay to
the Issuers, upon receipt by the Trustee of an Officers' Certificate, any excess
money, determined in accordance with Sections 8.2(d)(i) and (e), held by it at
any time. The Trustee and the Paying Agent shall pay to the Issuers, upon
receipt by the Trustee or the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of principal or interest that
remains unclaimed for two years; provided, however, that the Trustee and the
Paying Agent before being required to make any such payment may, but need not,
at the expense of the Issuers cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Issuers. After payment to the Issuers, Noteholders entitled to
money must look solely to the Issuers for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.5 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
and only then shall the Issuers' obligations under this Indenture and the Notes
be revived and reinstated as though no deposit had been made pursuant to this
Indenture until such time as the Trustee is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article
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VIII; provided, however, that if the Issuers have made any payment of interest
on or principal of any Notes because of the reinstatement of their obligations,
the Issuers shall be subrogated to the rights of the holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
SECTION 9.1 Without Consent of Holders.
The Issuers, when authorized by Board Resolutions of each of them, and
the Trustee may modify, amend, waive or supplement this Indenture or the Notes
without notice to or consent of any Noteholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with any requirements of the SEC under the TIA;
(c) to evidence the succession in accordance with Article V
hereof of another Person to the Issuers and the assumption by any such
successor of the covenants of the Issuers herein and in the Notes;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(e) to make any change that does not adversely affect the
rights of any Holder;
(f) to add a Guarantor; or
(g) to provide for the issuance of the Exchange Notes or the
Private Exchange Notes in accordance with Section 2.01 in a manner that
does not adversely affect the rights of any Holder.
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SECTION 9.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2, the
Issuers, when authorized by Board Resolutions of each of them, and the Trustee
may modify, amend, waive or supplement this Indenture or the Notes with the
written consent of the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding. Subject to Section 6.7 and the
provisions of this Section 9.2, the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes affected may waive
compliance by the Issuers with any provision of this Indenture or the Notes
without notice to any other Noteholder. However, without the consent of each
Noteholder affected, an amendment, modification, supplement or waiver, including
a waiver pursuant to Section 6.4, may not:
(a) reduce the amount of Notes the Holders of which must
consent to an amendment, modification, supplement or waiver of any
provision of this Indenture or the Notes or who must consent to take
any action under the Notes or the Indenture;
(b) reduce the rate of, change the method of calculation of,
or change the time for, payment of interest on any Note;
(c) reduce the principal amount of or premium on or change the
stated maturity of any Note;
(d) make any Note payable in currency other than that stated
in the Note or change the place of payment from New York, New York;
(e) change the amount or time of any payment required by the
Notes or reduce the premium payable upon any redemption of Notes, or
change the time before which no redemption can be made;
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(f) waive a default in the payment of the principal of,
interest on, or redemption payment with respect to, any Note;
(g) amend, alter, change or modify the obligation of the
Issuers to make and consummate a Change of Control Offer in the event
of a Change of Control or make and consummate an Excess Proceeds Offer
or waive any Default in the performance of any such offers or modify
any of the provisions or definitions with respect thereto;
(h) subordinate in right of payment, or otherwise subordinate
the Notes to any other Indebtedness or obligations of the Issuers;
(i) impair the right to institute suit for the enforcement of
any payment on or with respect to the Notes; or
(j) modify this Section 9.2, Section 6.4 or Section 4.22.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment,
modification, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, modification, supplement or waiver under this
Section 9.2 becomes effective, the Issuers shall mail to the Holders a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, modification,
supplement or waiver.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
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SECTION 9.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a written consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
that Note or portion of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to his Note or
portion of his Note. Such revocation shall be effective only if the Trustee
receives the written notice of revocation before the date the amendment,
supplement or waiver becomes effective. Notwithstanding the above, nothing in
this paragraph shall impair the right of any Noteholder under ss. 316(b) of the
TIA.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the second
and third sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. Such consent shall be effective
only for actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective in
accordance with the terms of this Article IX, it shall bind every Noteholder.
SECTION 9.5 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee shall (in accordance with the specific written direction of the Issuers
and at the expense of the Issuers) request the Holder of the Note to deliver
such Note to the Trustee. The Trustee shall (in accordance with the specific
direction of the Issuers set forth in an Officers' Certificate) place an
appropriate notation on the Note about
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the changed terms and return such Note to the Holder. Alternatively, if the
Issuers or the Trustee so determines, the Issuers in exchange for the Note shall
issue and the Trustee shall upon receipt of a written order authenticate a new
Note that reflects the changed terms. Failure to make the appropriate notation
or issue a new Note shall not affect the validity and effect of such amendment,
supplement-or waiver.
SECTION 9.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article IX if the amendment, supplement or waiver does not
adversely affect the rights, duties or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing any amendment, supplement or
waiver, the Trustee shall be entitled to receive, if requested, an indemnity
reasonably satisfactory to it and to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized or
permitted by this Indenture and that any supplemental indenture constitutes the
legal, valid and binding obligation of the Issuers, enforceable against each of
them in accordance with its terms (subject to customary exceptions). The Issuers
may not sign an amendment until any of their respective Board of Directors
approves it.
ARTICLE X
GUARANTEE OF NOTES
------------------
SECTION 10.1 Guarantee.
Subject to the provisions of this Article 10, each Guarantor, by
execution of a Guarantee, will jointly and severally unconditionally guarantee
to each Holder and to the Trustee, on behalf of the Holders, (i) the due and
punctual payment of the principal of, and premium, if any, and interest, if any,
on each Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the
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due and punctual payment of interest (including Additional Interest) on the
overdue principal of, and premium, if any, and interest, if any, on the Notes,
to the extent lawful, and the due and punctual performance of all other
Obligations of the Company to the Holders or the Trustee (including without
limitation amounts due the Trustee under Section 7.7) all in accordance with the
terms of such Note and this Indenture, and (ii) in the case of any extension of
time of payment or renewal of any Notes or any of such other Obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, at stated maturity, by acceleration or
otherwise. Each Guarantor, by execution of a Guarantee, will agree that its
obligations hereunder shall be absolute and unconditional, irrespective of, and
shall be unaffected by, any invalidity, irregularity or unenforceability of any
such Note or this Indenture, any failure to enforce the provisions of any such
Note or this Indenture, any waiver, modification or indulgence granted to the
Company with respect thereto by the Holder of such Note or the Trustee, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor.
Each Guarantor, by execution of a Guarantee, will waive diligence,
presentment, demand for payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to any such Note or the
Indebtedness evidenced thereby and all demands whatsoever, and will covenant
that the Guarantee will not be discharged as to any such Note except by payment
in full of the principal thereof, premium, and interest, if any, thereon and as
provided in Section 9.1 hereof. Each Guarantor, by execution of a Guarantee,
will further agree that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article VI hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in
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Article VI hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article VI hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided for
in this Article X and not discharged. Failure to make such a demand shall not
affect the validity or enforceability of the Guarantee upon any Guarantor.
A Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note until the certificate of authentication on such Note
shall have been signed by or on behalf of the Trustee.
A Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Notes shall, to the fullest extent permitted by law,
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under this Guarantee by reason of his, her or its status as such stockholder,
officer, director, employer or incorporator.
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A Guarantor, by execution of a Guarantee, will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under such Guarantee.
SECTION 10.2 Execution and Delivery of Guarantees.
A Guarantee shall be executed on behalf of a Guarantor by the manual or
facsimile signature of an Officer of such Guarantor in the form attached hereto
as Exhibit G.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office, such Guarantee shall be valid nevertheless.
SECTION 10.3 Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, result in the obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a Guarantee
shall be entitled to a contribution from each other Guarantor in a pro rata
amount based on the Adjusted Net Assets of each Guarantor.
SECTION 10.4 Additional Guarantors.
Any person may become a Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture in form and substance satisfactory to the
Trustee, which subjects such person to the provisions of this Indenture as a
Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such person and constitutes
the legal, valid, binding and enforceable obligation of such person (subject to
such customary exceptions
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concerning fraudulent conveyance laws, creditors' rights and equitable
principles as may be acceptable to the Trustee in its discretion).
SECTION 10.5 Release of Guarantor.
A Guarantor shall be automatically and unconditionally released and
discharged from all of its obligations under its Guarantee upon:
(i) the unconditional release of such Subsidiary from its
liability in respect of the Indebtedness in connection with which such
Guarantee was executed and delivered pursuant to Section 4.25; or
(ii) any sale or other disposition (by merger or otherwise) to
any Person which is not a Subsidiary of the Company of all of the
Company's Equity Interests in, or all or substantially all of the
assets of, such Subsidiary; provided that
(a) such sale or disposition of such Equity Interests
or assets is otherwise in compliance with the terms of the
Indenture and
(b) such assumption, guarantee or other liability of
such Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture limits,
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qualifies or conflicts with the duties imposed by TIA ss. 318(c), the imposed
duties shall control.
SECTION 11.2 Notices.
Any notice or communication shall be sufficiently given only if in
writing and delivered in Person or mailed by first-class mail (or as between the
Issuer and Trustee, by facsimile transmission) addressed as follows:
(a) if to the Issuers:
AOA Holding LLC
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
Suite 170, South Wing
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy (which copy shall not constitute notice) to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(b) if to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy (which copy shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
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The Issuers or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder, including any
notice delivered in connection with TIA ss. 310(b), TIA ss. 313(c), TIA ss.
314(a) and TIA ss. 315(b), shall be mailed to him, first-class postage prepaid,
at his address as it appears on the registration books of the Registrar and
shall be deemed to have been sufficiently given to him on the date so deposited
in the mail, whether or not the addressee receives it.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. Except
for a notice to the Trustee, which is deemed given only when received, if a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
In case, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 11.3 Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and any other Person shall have the
protection of TIA ss. 312(c).
SECTION 11.4 Certificate and Opinion of Counsel as to Conditions
Precedent.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee at the
request of the Trustee (a) an Officers' Certificate in form and substance
satisfactory to
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the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (b) an Opinion of Counsel in form and substance
satisfactory to the Trustee stating that, in the opinion of counsel, all such
conditions have been complied with and (c) where applicable, a certificate or
opinion by an independent certified public accountant satisfactory to the
Trustee that complies with TIA ss. 314(c).
SECTION 11.5 Statements Required in Certificate and Opinion of Counsel.
Each certificate and Opinion of Counsel with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or
Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a
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meeting of Noteholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
SECTION 11.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 11.8 Governing Law.
The internal laws of the State of New York shall govern this Indenture
and the Notes without regard to principles of conflict of laws.
SECTION 11.9 Release from Liability.
No trustee, member, manager, director, officer, employee, stockholder
(other than the Company), partner, affiliate or beneficiary, as such, of the
Issuers shall have any liability for any obligations of the Issuers under the
Notes or this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Noteholder by accepting a Note waives
and releases all such liability as part of the consideration for the Notes. It
is understood that this limitation on recourse is made expressly for the benefit
of any such trustee, director, officer, employee, stockholder, partner affiliate
or beneficiary and may be enforced by any one or all of them.
SECTION 11.10 Successors.
All agreements of the Issuers in this Indenture and the Notes shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.11 Duplicate Originals.
The parties may sign any multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an
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original, but all of them together represent the same agreement.
SECTION 11.12 Separability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
SECTION 11.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
AOA HOLDING LLC
(a Minnesota limited liability
company)
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
AOA CAPITAL CORP
(a Minnesota corporation)
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A
---------
[FORM OF FACE OF NOTE]
AOA HOLDING LLC
AOA CAPITAL CORP
Number CUSIP
% SENIOR NOTE DUE 2006
AOA HOLDING LLC and AOA CAPITAL CORP, jointly and severally, for value
received promise to pay to CEDE & CO. or registered assigns the principal sum of
$[ ] Dollars on May [ ], 2006.
Interest Payment Dates: March 15 and September 15, commencing September
15, 1999.
Record Dates: March 1 and September 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-1
IN WITNESS WHEREOF, AOA Holding LLC and AOA Capital Corp have caused
this Note to be signed normally or by facsimile by its duly authorized officers.
AOA HOLDING LLC
By:______________________
Name:
Title:
AOA CAPITAL CORP
By:______________________
Name:
Title:
Certificate of Authentication
This is one of the % Senior Notes Due 2006 referred to in the
within-mentioned Indenture.
Dated: May [ ], 1999 UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
---------------------------------
Authorized Signatory
A-2
(REVERSE OF NOTE)
AOA HOLDING LLC
AOA CAPITAL CORP
% SENIOR NOTE DUE 2006
1. Interest. AOA HOLDING LLC, a Minnesota limited liability company
(the "Company"), and AOA CAPITAL CORP, a Minnesota corporation (and, together
with the Company, the "Issuers"), jointly and severally, promise to pay, until
the principal hereof is paid or made available for payment, interest on the
principal amount set forth on the reverse side hereof at a rate of % per annum.
Interest on this % Senior Note Due 2006 (the "Note") will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including May , 1999 through but excluding the
date on which interest is paid. Interest shall be payable in arrears on March 15
and September 15 and at the stated maturity commencing June 1, 2006. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. The
Issuers shall pay interest on overdue principal and on overdue interest (to the
full extent permitted by law) at a rate equal to 0.5% per annum; and the per
annum interest rate of such additional interest will increase by an additional
0.25% per annum for each subsequent 90-day period during which such overdue
principal and installments of interest remain unpaid, up to a maximum additional
interest rate of 2.0% per annum.
2. Method of Payment. The Issuers will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on March 15 and September 15 (whether or not a Business
Day) next preceding the interest payment date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuers will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts.
A-3
3. Paying Agent and Registrar. Initially, UNITED STATES TRUST COMPANY
OF NEW YORK, a New York banking corporation (the "Trustee") will act as Paying
Agent and Registrar. The Issuers may change any Paying Agent or Registrar
without notice. Either of the Issuers or any of their Affiliates may act as
Registrar.
4. Indenture. The Issuers issued the Notes under an Indenture dated as
of May , 1999 (the "Indenture"), among the Issuers and the Trustee. This Note is
one of an issue of Notes of the Issuers issued, or to be issued, under the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb), as amended from time to time. The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of them. Capitalized and certain other terms used herein and
not otherwise defined have the meanings set forth in the Indenture. The Notes
are joint and several general unsecured senior obligations of the Issuers
limited in aggregate principal amount to $50,000,000. The Indenture limits,
among other things, the incurrence of Indebtedness by the Company and its
Subsidiaries; the creation of Liens by the Company and its Subsidiaries; the
declaration or payment of any dividend or any other distribution on Equity
Interests of the Company or its Subsidiaries; purchases, redemptions, and other
acquisitions or retirements of Equity Interests of the Company and its
Subsidiaries; transactions by the Company and its Subsidiaries with its
respective Affiliates; the issuance of Equity Interests by the Company's
Subsidiaries; and the ability of the Company or any of its Subsidiaries to merge
with or into another entity. The limitations are subject to a number of
important qualifications and exceptions. The Issuers must report to the Trustee
quarterly on compliance with the limitations contained in the Indenture.
5. Optional Redemption. The Notes will be redeemable at the option of
the Issuers, in whole or in part, at any time on or after June 1, 2003 at the
following redemption prices (expressed as a percentage of principal amount),
together, in each case, with accrued and unpaid interest to the
A-4
redemption date, if redeemed during the twelve-month period beginning on May of
each year listed below:
Year Percentage
---- ----------
2003............................ 105.188%
2004............................ 102.594%
2005 and thereafter............. 100.000%
In the event of redemption of fewer than all of the Notes, the Trustee
shall select pro rata, by lot or in such other manner as it shall deem fair and
equitable, the Notes to be redeemed. The Notes will be redeemable in whole or in
part upon not less than 30 nor more than 60 days' prior written notice, mailed
by first class mail to a Holder's last address as it shall appear on the
register maintained by the Registrar of the Notes. If any Note is to be redeemed
in part only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed. A new Note, in a
principal amount equal to the unredeemed portion thereof, will be issued in the
name of the Holder thereof upon cancellation of the original Note. After any
redemption date, unless the Issuers shall default in the payment of the
redemption price, interest will cease to accrue on the Notes or portions thereof
called for redemption.
The Issuers may also redeem the Notes, in whole but not in part, at any
time during the nine-month period beginning on April 15, 2001 and ending on
January 15, 2002 at a redemption price equal to 100% of the aggregate principal
amount so redeemed, plus accrued and unpaid interest to the redemption date, in
the event of a concurrent optional redemption by the Subsidiary Issuers of the
Existing Subsidiary Notes.
6. Offers To Purchase. Sections 4.15 and 4.17 of the Indenture provide
that after an Asset Sale or upon the occurrence of a Change of Control, and
subject to further limitations contained therein, the Issuers shall make an
offer to purchase certain amounts of Notes in accordance with the procedures set
forth in the Indenture.
A-5
7. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not transfer or
exchange any Notes or portion of a Note selected for redemption, or transfer or
exchange any Notes for a period of 15 days before a selection of Notes to be
redeemed.
8. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes.
9. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Issuers at their written request. After that, Holders entitled to
the money must look to the Issuers for payment as general creditors unless an
"abandoned property" law designates another Person.
10. Amendment, Supplement, Waiver. The Issuers and the Trustee may,
without the consent of the Holders of any outstanding Notes, amend, waive or
supplement the Indenture or the Notes for certain specified purposes, including,
among other things, curing ambiguities, defects or inconsistencies, maintaining
the qualification of the Indenture under the Trust Indenture Act of 1939, as
amended, making any change that does not adversely affect the rights of any
Holder. Other amendments and modifications of the Indenture or the Notes may be
made by the Issuers and the Trustee with the consent of the Holders of not less
than a majority of the aggregate principal amount of the outstanding Notes,
subject to certain exceptions requiring the consent of each Holder.
11. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article V of the Indenture, the
predecessor corporation will be released from those obligations.
A-6
12. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(viii) or
(ix) of the Indenture) occurs and is continuing, then the Holders of not less
than 25% in aggregate principal amount of the outstanding Notes may, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes shall, declare the principal of and
interest on all of the Notes to be due and payable immediately. If an Event of
Default specified in Section 6.1(a)(viii) or (ix) of the Indenture occurs and is
continuing, the principal of, and premium, if any, and interest on all of the
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity reasonably satisfactory to it, in its sole
discretion, before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Issuers must furnish an annual compliance
certificate to the Trustee.
13. Trustee Dealings with Issuers. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with the
Issuers or their Affiliates, as if it were not Trustee.
14. No Recourse Against Others. No trustee, manager, member, director,
officer, employee, stockholder (other than the Company), partner, affiliate or
beneficiary as such, of the Issuers shall have any liability for any obligations
of the Issuers under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and re-
A-7
leases all such liability. The waiver and release are part of the consideration
for the issue of the Notes.
15. General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in the Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in the
Indenture.
16. Discharge. The Issuers' obligations pursuant to the Indenture will
be discharged, except for obligations pursuant to certain sections thereof,
subject to the terms of the Indenture, upon the payment of all the Notes or upon
the irrevocable deposit with the Trustee of money or U.S. Government Obligations
sufficient to pay when due principal of, and premium, if any, and interest on
the Notes to maturity or redemption, as the case may be.
17. Authentication. This Note shall not be valid until the Trustee
manually signs the certificate of authentication on the other side of this Note.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
A-8
AOA Holding LLC
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
Suite 170, South Wing
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A-9
ASSIGNMENT FORM
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act on his or her behalf.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your Signature:
----------------------- ----------------------------------
(Sign exactly as your name appears
on the face of this Note)
A-10
Signature Guarantee*:
-----------------------------------------------------------
*Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_______________ _______________________________________
NOTICE: To be executed by an executive
officer
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuers pursuant to
Section 4.15 or 4.17 of the Indenture, check the appropriate box:
[ ] Section 4.15 [ ] Section 4.17
If you wish to have a portion of this Note purchased by the Issuers
pursuant to Section 4.15 or 4.17 of the Indenture, state the principal amount at
maturity you elect to have purchased:
$
====================
(multiple of $1,000)
Date: Your Signature:
------------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee*:
---------------------------------------------------------
*Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-12
EXHIBIT B
---------
[FORM OF LEGEND FOR 144A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT IT WILL NOT
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER, WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF SUCH NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, (C) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, (▇)
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
COMPANY AND THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT OR (F)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT
(IF AVAILABLE) AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
B-1
[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act on his or her behalf.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your Signature:
------------------------ ----------------------------------
(Sign exactly as your name appears
on the face of this Note)
B-2
Signature Guarantee*:
----------------------------------------------------------
*Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_______________ _________________________________________
NOTICE: To be executed by an executive
officer
B-3
EXHIBIT C
---------
[FORM OF LEGEND FOR REGULATION S NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
C-1
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act on his or her behalf.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: Your Signature:
----------------------- -----------------------------------
(Sign exactly as your name appears
on the face of this Note)
C-2
Signature Guarantee*:
-----------------------------------------------------------
*Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_______________ ________________________________________
NOTICE: To be executed by an executive
officer
C-3
EXHIBIT D
---------
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note or Regulation S Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER OR
THEIR 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 IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
D-1
EXHIBIT E
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------, ----
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Re: AOA HOLDING LLC and AOA CAPITAL CORP
(the "Issuers") % Senior Notes
due 2006 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture dated as of March 24, 1999 relating to the Notes and we agree
to be bound by, and not to resell, pledge or otherwise transfer the
Notes except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under
the Securities Act, and that the Notes may not be offered, sold,
pledged or otherwise transferred except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell any
Notes, we will do so only (i) to the Issuers or any
E-1
subsidiary thereof, (ii) pursuant to an effective registration
statement under the Securities Act, (iii) in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A), (iv) to an institutional "accredited investor"
(as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the Notes, (v) outside the United States to
persons other than U.S. persons in offshore transactions meeting the
requirements of Rule 904 of Regulation S under the Securities Act, or
(vi) pursuant to any other exemption from registration under the
Securities Act (if available), and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Issuers such certifications,
legal opinions and other information as you and the Issuers may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting each are able to bear the economic risk of our or their
investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
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You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
------------------------------
Authorized Signature
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EXHIBIT F
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Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
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United States Trust Company of New York
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Attention:
Re: AOA HOLDING LLC and AOA CAPITAL CORP (the
"Issuers") % Senior Notes due
2006 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $50,000,000 aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or to
a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been prearranged with a buyer in the United States;
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(3) no directed selling efforts have been made in the United
States 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; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------------
Authorized Signature
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EXHIBIT G
---------
[FORM OF GUARANTEE]
The undersigned (the "Guarantor") hereby guarantees, to the extent set
forth in the Indenture dated as of May , 1999 by and between AOA HOLDING LLC
(the "Company") and AOA CAPITAL CORP ("Capital Corp" and together with the
Company, the "Issuers"), as issuers and UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee (as amended, restated or supplemented from time to time, the
"Indenture"), and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of, and premium and, to the extent permitted by law, interest,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee, all in accordance with the terms set forth in
Article X of the Indenture, and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
X of the Indenture and reference is hereby made to the Indenture for the precise
terms and limitations of this Guarantee.
[GUARANTOR]
By: ________________
Name:
Title:
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