Exhibit 4.2
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
RADIO UNICA CORP.
------------------------
THE GUARANTORS named herein
------------------------
and
WILMINGTON TRUST COMPANY, as Trustee
INDENTURE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated as of July 27, 1998
$158,088,000 Principal Amount at Maturity
11 3/4% Senior Discount Notes due 2006
-----------------------
CROSS-REFERENCE TABLE
TIA 7Indenture
Section Section
310 (a)(1)............................................... 7.10
(a)(2)............................................... 7.10
(a)(3)............................................... N.A.
(a)(4)............................................... N.A.
(b).................................................. 7.08; 7.10; 11.02
(b)(1)............................................... 7.10
(b)(9)............................................... 7.10
(c).................................................. N.A.
311 (a).................................................. 7.11
(b).................................................. 7.11
(c).................................................. N.A.
312 (a).................................................. 2.05
(b).................................................. 11.03
(c).................................................. 11.03
313 (a).................................................. 7.06
(b)(1)............................................... 7.06
(b)(2)............................................... 7.06
(c).................................................. 11.02
(d).................................................. 7.06
314 (a).................................................. 4.02; 4.04; 11.02
(b).................................................. N.A.
(c)(1)............................................... 11.04; 11.05
(c)(2)............................................... 11.04; 11.05
(c)(3)............................................... N.A.
(d).................................................. N.A.
(e).................................................. 11.05
(f).................................................. N.A.
315 (a).................................................. 7.01; 7.02
(b).................................................. 7.05; 11.02
(c).................................................. 7.01
(d).................................................. 6.05; 7.01; 7.02
(e).................................................. 6.11
316 (a) (last sentence).................................. 11.06
(a)(1)(A)............................................ 6.05
(a)(1)(B)............................................ 6.04
(a)(2)............................................... 8.02
(b).................................................. 6.07
(c).................................................. 8.04
317 (a)(1)............................................... 6.08
(a)(2)............................................... 6.09
(b).................................................. 7.12
318 (a).................................................. 11.01
------------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemend to be a
part of the Indenture
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.........................................................................1
SECTION 1.02. Other Definitions..................................................................24
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..................................25
SECTION 1.04. Rules of Construction..............................................................25
ARTICLE TWO
THE NOTES
SECTION 2.01. Amount of Notes....................................................................26
SECTION 2.02. Form and Dating....................................................................27
SECTION 2.03. Execution and Authentication.......................................................27
SECTION 2.04. Registrar and Paying Agent.........................................................28
SECTION 2.05. Paying Agent To Hold Money in Trust................................................29
SECTION 2.06. Noteholder Lists...................................................................29
SECTION 2.07. Transfer and Exchange..............................................................29
SECTION 2.08. Replacement Notes..................................................................30
SECTION 2.09. Outstanding Notes..................................................................31
SECTION 2.10. Treasury Notes.....................................................................31
SECTION 2.11. Temporary Notes....................................................................31
SECTION 2.12. Cancellation.......................................................................32
SECTION 2.13. Defaulted Interest.................................................................32
SECTION 2.14. CUSIP Number.......................................................................33
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
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.............................................38
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.......................................38
i
SECTION 3.03. Notice of Redemption...............................................................39
SECTION 3.04. Effect of Notice of Redemption.....................................................40
SECTION 3.05. Deposit of Redemption Price........................................................40
SECTION 3.06. Notes Redeemed in Part.............................................................41
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes...................................................................41
SECTION 4.02. Reports to Holders.................................................................41
SECTION 4.03. Waiver of Stay, Extension or Usury Laws............................................42
SECTION 4.04. Compliance Certificate.............................................................42
SECTION 4.05. Taxes..............................................................................43
SECTION 4.06. Limitation on Additional Indebtedness..............................................43
SECTION 4.07. Limitation on Restricted Payments..................................................44
SECTION 4.08 Limitation on Investments..........................................................46
SECTION 4.09. Limitations on Liens...............................................................47
SECTION 4.10. Limitation on Transactions with Affiliates.........................................47
SECTION 4.11. Limitation on Creation of Subsidiaries.............................................48
SECTION 4.12. Limitation on Certain Asset Sales..................................................48
SECTION 4.13 Limitation on Preferred Stock of Restricted Subsidiaries...........................50
SECTION 4.14. Limitation on Capital Stock of Restricted Subsidiaries.............................50
SECTION 4.15. Limitation on Sale and Lease-Back Transactions.....................................50
SECTION 4.16. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.............................................51
SECTION 4.17. Payments for Consent...............................................................51
SECTION 4.18. Legal Existence....................................................................52
SECTION 4.19. Change of Control Offer............................................................52
SECTION 4.20. Maintenance of Properties; Insurance; Books and
Records; Compliance with Law....................................................54
SECTION 4.21. Limitation on Conduct of Business..................................................55
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Consolidation, Amalgamation, Merger and Sale of Assets...............56
SECTION 5.02. Successor Person Substituted.......................................................57
ii
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default..................................................................57
SECTION 6.02. Acceleration.......................................................................59
SECTION 6.03. Other Remedies.....................................................................60
SECTION 6.04. Waiver of Past Defaults and Events of Default......................................60
SECTION 6.05. Control by Majority................................................................60
SECTION 6.06. Limitation on Suits................................................................61
SECTION 6.07. Rights of Holders To Receive Payment...............................................61
SECTION 6.08. Collection Suit by Trustee.........................................................61
SECTION 6.09. Trustee May File Proofs of Claim...................................................62
SECTION 6.10. Priorities.........................................................................62
SECTION 6.11. Undertaking for Costs..............................................................63
SECTION 6.12. Restoration of Rights and Remedies.................................................63
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee..................................................................63
SECTION 7.02. Rights of Trustee..................................................................65
SECTION 7.03. Individual Rights of Trustee.......................................................66
SECTION 7.04. Trustee's Disclaimer...............................................................66
SECTION 7.05. Notice of Defaults.................................................................66
SECTION 7.06. Reports by Trustee to Holders......................................................66
SECTION 7.07. Compensation and Indemnity.........................................................67
SECTION 7.08. Replacement of Trustee.............................................................68
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc....................................69
SECTION 7.10. Eligibility; Disqualification......................................................69
SECTION 7.11. Preferential Collection of Claims Against Issuer...................................69
SECTION 7.12. Paying Agents......................................................................69
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.........................................................70
SECTION 8.02. With Consent of Holders............................................................71
SECTION 8.03. Compliance with Trust Indenture Act................................................72
iii
SECTION 8.04. Revocation and Effect of Consents..................................................72
SECTION 8.05. Notation on or Exchange of Notes...................................................73
SECTION 8.06. Trustee To Sign Amendments, etc....................................................73
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture.............................................................74
SECTION 9.02. Legal Defeasance...................................................................74
SECTION 9.03. Covenant Defeasance................................................................75
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance....................................75
SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions..................................................77
SECTION 9.06. Reinstatement......................................................................78
SECTION 9.07. Moneys Held by Paying Agent........................................................78
SECTION 9.08. Moneys Held by Trustee.............................................................78
Section 9.09. Satisfaction and Discharge.........................................................79
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee..........................................................................80
SECTION 10.02. Execution and Delivery of Guarantee................................................82
SECTION 10.03. Additional Guarantors..............................................................82
SECTION 10.04. Release of Guarantor...............................................................83
SECTION 10.05. Waiver of Subrogation..............................................................83
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.......................................................84
SECTION 11.02. Notices............................................................................84
SECTION 11.03. Communications by Holders with Other Holders.......................................86
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.................................86
SECTION 11.05. Statements Required in Certificate and Opinion.....................................87
SECTION 11.06. Rules by Trustee and Agents........................................................87
SECTION 11.07. Business Days; Legal Holidays......................................................87
SECTION 11.08. Governing Law......................................................................87
iv
SECTION 11.09. Agent for Service; Submission to Jurisdiction; Waiver of Immunities................88
SECTION 11.10. No Adverse Interpretation of Other Agreements......................................89
SECTION 11.11. No Recourse Against Others.........................................................89
SECTION 11.12. Successors.........................................................................89
SECTION 11.13. Multiple Counterparts..............................................................89
SECTION 11.14. Table of Contents, Headings, etc...................................................90
SECTION 11.15. Separability.......................................................................90
EXHIBITS
Exhibit A. Form of Note......................................................................A-1
Exhibit B. Form of Legend for Rule 144A......................................................B-1
Exhibit C. Form of Legend 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
INDENTURE, dated as of July 27, 1998, among RADIO UNICA CORP., a
corporation incorporated under the laws of Delaware, as issuer (the "Issuer"),
the Guarantors (as hereinafter defined) and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Issuer's 11 3/4% Senior
Discount Notes due 2006 (the "Senior Discount Notes").
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accreted Value" means, as of any date prior to August 1, 2002, an
amount per $1,000 principal amount at maturity of Notes that is equal to the sum
of (a) the initial offering price of each Note and (b) the portion of the excess
of the principal amount at maturity of each Note over such initial offering
price which shall have been amortized on a daily basis and compounded
semiannually on each August 1 and February 1 at the rate of 11 3/4% per annum
from the Issue Date through the date of determination computed on the basis of a
360-day year of twelve 30-day months; and, as of any date on or after August 1,
2002, the Accreted Value of each Note shall mean the aggregate principal amount
at maturity of such Note.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or is merged into or consolidated with any other Person or which is
assumed in connection with the acquisition of assets from such Person and, in
each case, not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary or such merger,
consolidation or acquisition.
"Additional Interest" means additional interest on the Notes including
Assessed Damage Amounts which the Issuer and the Guarantors, jointly and
severally, agree to pay to the Holders pursuant to Section 4 of the Registration
Rights Agreement.
"Adjusted Net Assets" of any Person at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Person exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities),
but excluding liabilities under the Guarantee of such Person at such date and
(y) the present fair salable value of the assets of such Person at such date
2
exceeds the amount that will be required to pay the probable liability of such
Person on its debts (after giving effect to all other fixed and contingent
liabilities and after giving effect to any collection from any subsidiary of
such Person in respect of the obligations of such Person under the Guarantee of
such Person), excluding Indebtedness in respect of the Guarantee of such Person,
as they become absolute and matured.
"Affiliate" means, with respect to any specific Person, any other
Person that 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 provided that, for purposes of Section 4.10, beneficial
ownership of at least 10% of the voting securities of a Person, either directly
or indirectly, shall be deemed to be control.
"Agent" means the Registrar, any Paying Agent, or agent for service or
notices and demands.
"Assessed Damage Amounts" shall have the meaning set forth in the
Registration Rights Agreement.
"Asset Acquisition" means (a) an Investment by the Issuer or any
Restricted Subsidiary of the Issuer in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Issuer or any Restricted
Subsidiary of the Issuer, or shall be merged with or into the Issuer or any
Restricted Subsidiary of the Issuer or (b) the acquisition by the Issuer or any
Restricted Subsidiary of the Issuer of the assets of any Person (other than a
Restricted Subsidiary of the Issuer) which constitute all or substantially all
of the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in the
ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
assignment, transfer, lease or other disposition (including any Sale and
Lease-Back Transaction), other than to the Issuer or any of its Restricted
Subsidiaries, in any single transaction or series of related transactions of (a)
any Capital Stock of or other equity interest in any Restricted Subsidiary of
the Issuer or (b) any other property or assets of the Issuer or of any
Restricted Subsidiary thereof; provided that Asset Sales shall not include (i) a
transaction or series of related transactions for which the Issuer or its
Restricted Subsidiaries receive aggregate consideration of less than $1,000,000,
(ii) the sale, lease, conveyance, disposition or other transfer of all or
substantially all of the assets of the Issuer as permitted under Section 5.01,
(iii) sales or other dispositions of programming or advertising time, or
inventory, receivables and other
3
current assets in the ordinary course of business and (iv) sales or other
dispositions of equipment that has become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Issuer or
its Restricted Subsidiaries.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Issuer or any Restricted Subsidiary of the Issuer from such
Asset Sale (including cash received as consideration for the assumption of
liabilities incurred in connection with or in anticipation of such Asset Sale),
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale, (b) payment of all brokerage commissions, underwriting and
other fees and expenses related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary of the Issuer as a result of such
Asset Sale, (d) repayment of Indebtedness that is required to be repaid in
connection with such Asset Sale and (e) deduction of appropriate amounts to be
provided by the Issuer or a Restricted Subsidiary of the Issuer 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 Issuer or a Restricted
Subsidiary after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and
other noncash consideration received by the Issuer or any Restricted Subsidiary
of the Issuer from such Asset Sale or other disposition upon the liquidation or
conversion of such notes or noncash 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 and (ii) the present value of
the total obligations (discounted at the rate borne by the Notes, compounded
semi-annually) of the lessee for rental payments during the remaining term of
the lease included in such Sale and Lease-Back Transaction (including any period
for which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clauses (iii)(a) or (iii)(b) of the first paragraph
of Section 4.12, and which have not yet been the basis for an Excess Proceeds
Offer in accordance with clause (iii)(c) of the first paragraph of Section 4.12.
"Average Life" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
4
"Board of Directors" means (i) in the case of a Person that is a
corporation, the board of directors of such Person and (ii) in the case of any
other Person, the board of directors, board of managers, management committee or
similar governing body or any authorized committee thereof responsible for the
management of the business and affairs of such Person.
"Board Resolution" means a copy of a resolution certified pursuant to
an Officers' Certificate to have been duly adopted by the Board of Directors of
the Issuer or a Guarantor, as appropriate, and to be in full force and effect,
and delivered to the Trustee.
"Business Day" has the meaning set forth in Section 11.07 hereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, partnership or limited liability company
interests or any other participation, right or other interest in the nature of
an equity interest in such Person including, without limitation, Common Stock
and Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means with respect to any Person,
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 capitalized amount of such obligations
determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $50,000,000; (v) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds
5
which invest substantially all their assets in securities of the types described
in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following: (i)
the adoption of a plan relating to the liquidation or dissolution of the Issuer,
(ii) prior to the consummation of an Equity Offering as contemplated by the
first sentence in the definition thereof, the Permitted Holders shall cease
collectively to control at least a majority of the voting power of the Board of
Directors of the Issuer or Holdings, (iii) any Person (including a Person's
Affiliates and associates), other than a Permitted Holder, becomes the
beneficial owner (as defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of more than 50% of the total
voting power of the Common Stock of the Issuer or Holdings, (iv) there shall be
consummated any consolidation or merger of the Issuer or Holdings in which the
Common Stock of the Issuer or Holdings would be converted into cash, securities
or other property, other than a merger or consolidation of the Issuer or
Holdings in which the holders of the Common Stock of the Issuer or Holdings
outstanding immediately prior to the consolidation or merger hold, directly or
indirectly, at least a majority of the Common Stock of the surviving corporation
immediately after such consolidation or merger, or (v) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Issuer or Holdings (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Issuer or Holdings has been approved by 66
2/3% of the directors then still in office who either where directors at the
beginning of such period or whose election or recommendation for election was
previously so approved) cease to constitute a majority of the Board of Directors
of the Issuer or Holdings.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"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 Restricted Subsidiaries on a
consolidated basis (including, but not limited to, (i) Redeemable Dividends, but
only if paid or accrued and declared, on Preferred Stock, (ii) imputed interest
included in Capitalized Lease Obligations, (iii) all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (iv) the net costs associated with hedging obligations,
(v) amortization of other financing fees and expenses, (vi) the interest portion
of any deferred payment obligation,
6
(vii) amortization of discount or premium, if any, and (viii) all other non-cash
interest expense (other than interest amortized to cost of sales)) plus, without
duplication, all net capitalized interest for such period and all interest
incurred or paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person, plus the amount
of all dividends or distributions paid on Disqualified Capital Stock (other than
dividends paid or payable in shares of Capital Stock of the Issuer) less the
amortization of deferred financing costs.
"Consolidated Leverage Ratio" means, with respect to any Person, the
ratio of (i) the sum of the aggregate outstanding amount of Indebtedness of such
Person and its Restricted Subsidiaries as of the date of calculation (the
"Transaction Date") on a consolidated basis determined in accordance with GAAP
to (ii) such Person's EBITDA for the four full fiscal quarters (the "Four
Quarter Period") ending on or prior to the date of determination for which
financial statements are available. For purposes of this definition, "EBITDA"
shall be calculated after giving effect on a pro forma basis to (i) the
incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving
rise to the need to make such calculation and any incurrence or repayment of
other Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, including
without limitation any incurrence or repayment under the Senior Credit Facility
occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if
such incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period and (ii)
any Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including any
EBITDA attributable to the assets or Person which is the subject of the Asset
Acquisition or Asset Sale during the Four Quarter Period) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period; provided that in connection with any such Asset Acquisition, such pro
forma calculation (i) may give effect to projected quantifiable savings in
programming costs and sales personnel (consistent with the savings actually
achieved by the Issuer in connection with prior acquisitions) adopted, in good
faith, by the Issuer or one of its Restricted Subsidiaries through a Board
Resolution certified by an Officers' Certificate of the Issuer filed with the
Trustee and (ii) shall not give effect to any operating losses of the acquired
assets or Person. Such Officers' Certificate shall be signed by the Chief
Financial Officer and another officer of
7
the Issuer. If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, the preceding sentence shall give effect to
the incurrence of such guaranteed Indebtedness, so long as such guaranteed
Indebtedness is outstanding, as if such Person or any Restricted Subsidiary of
such Person had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, that (a) the Net Income of any Person (the "other Person")
in which the Person in question or any of its Restricted Subsidiaries has less
than a 100% interest (other than a Restricted Subsidiary) and the Net Income of
any Unrestricted Subsidiary shall be excluded except to the extent of the amount
of dividends or distributions actually paid to the Person in question or any of
its Restricted Subsidiaries by the other Person or Unrestricted Subsidiary, as
the case may be, during such period, (b) the Net Income of any Restricted
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 to
such Person shall be excluded to the extent of such restriction or limitation,
(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 Restricted Subsidiaries other than in the ordinary course of
business shall be excluded, (d) extraordinary gains and losses shall be
excluded, (e) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or not
such operations were classified as discontinued) shall be excluded, and (f) in
the case of a successor to the referent Person by consolidation or merger or as
a transferee of the referent Person's assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets shall be
excluded.
"Consolidated Net Worth" means with respect to any Person at any date,
the consolidated stockholders' equity or members' capital of such Person less
the amount of such stockholders' equity or members' capital attributable to
Disqualified Capital Stock of such Person and its Subsidiaries, as determined in
accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at c/▇ ▇▇▇▇▇▇ Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: Corporate Trust Department.
8
"Default" means any condition or event that is, or with the passage of
time or giving of any notice expressly required hereunder (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 Issuer, which Person must be a clearing agency registered
under the Exchange Act.
"Disqualified Capital Stock" means any Capital Stock of a Person or a
Restricted Subsidiary thereof 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 Capital Stock
shall be deemed to include any Preferred Stock of a Person or a Restricted
Subsidiary of such Person, with respect to either of which, under the terms of
such Preferred Stock, by agreement or otherwise, such Person or Restricted
Subsidiary is obligated to pay current dividends or distributions in cash during
the period prior to the maturity date of the Notes; provided, that Preferred
Stock of a Person or any Restricted Subsidiary thereof that is issued with the
benefit of provisions requiring a change of control offer to be made for such
Preferred Stock in the event of a change of control of such Person or Restricted
Subsidiary which provisions have substantially the same effect as the provisions
described under Section 4.19 shall not be deemed to be Disqualified Capital
Stock solely by virtue of such provisions.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of a
Person whose jurisdiction of incorporation or formation is the United States,
any State thereof or the District of Columbia.
"EBITDA" means, with respect to any Person and its Restricted
Subsidiaries, for any period, an amount equal to (a) the sum of (i) Consolidated
Net Income for such period, plus (ii) the provision for taxes for such period
based on income or profits to the extent such income or profits were included in
computing Consolidated Net Income and any provision for taxes utilized in
computing net loss under clause (i) hereof, plus (iii) Consolidated Interest
Expense for such period (but only including Redeemable Dividends in the
calculation of such Consolidated Interest Expense to the extent that such
Redeemable Dividends have not been excluded in the calculation of Consolidated
Net Income), plus (iv) depreciation for such period on a consolidated basis,
plus (v) amortization of intangibles and radio programming obligations (net of
cash payments with respect to radio programming obligations) for such period on
a consolidated basis, plus (vi) any other non-cash items reducing Consolidated
Net Income for such period, minus (b) all non-cash items increasing Consolidated
Net Income for such period, all for such Person and its Restricted Subsidiaries
determined on a consolidated basis
9
in accordance with GAAP; provided, that, for purposes of calculating EBITDA
during any fiscal quarter, cash income from a particular Investment of such
Person shall be included only (x) to the extent cash income has been received by
such Person with respect to such Investment during each of the previous four
fiscal quarters or (y) to the extent the cash income derived from such
Investment is attributable to Cash Equivalents.
"Equity Offering" means an initial public offering by the Issuer or
Holdings of shares of its Qualified Capital Stock (however designated and
whether voting or non-voting) and any and all rights, warrants or options to
acquire such Qualified Capital Stock, provided that such an initial public
offering includes shares of Common Stock of the Issuer or Holdings and with
respect to an initial public offering by Holdings, the net proceeds of such
Equity Offering are contributed to the Issuer as common equity. After an initial
public offering of Qualified Capital Stock of the Company or Holdings, Equity
Offering means any offering by Holdings or the Company of Qualified Capital
Stock (however designated and whether voting or non-voting) and any and all
rights, warrants or options to acquire such Qualified Capital Stock and with
respect to any offering by Holdings, the net proceeds of such Equity Offering
are contributed to the Issuer as common equity.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" has the meaning provided in the Registration Rights
Agreement.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Issuer acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Issuer delivered to the Trustee.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of a
Person other than a Domestic Restricted Subsidiary.
"GAAP" means generally accepted accounting principles as in effect in
the United States as of the Issue Date.
"Guarantee" means the Guarantee relating to the Notes, the Exchange
Notes and the Private Exchange Notes.
10
"Guarantors" means (i) each Subsidiary of the Issuer existing on the
Issue Date with assets or shareholders' equity in excess of $1,000 on the Issue
Date and (ii) each other Restricted Subsidiary of the Issuer formed, created or
acquired after the Issue Date.
"Holder", "holder" or "Noteholder" means the Person in whose name a
Note is registered on the Registrar's books.
"Holdings" means Radio Unica Holdings Corp., a Delaware corporation and
the Company's sole stockholder as of the Issue Date.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "incurrence," "incurred," "incurrable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that 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 or liabilities arising from distribution guarantees
entered into by the Company or any Restricted Subsidiary in the ordinary course
of business, and other accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing indebtedness would appear as
a liability upon a balance sheet of such Person prepared in accordance with
GAAP, and shall also include, to the extent not otherwise included (i) any
Capitalized Lease Obligations of such Person, (ii) obligations secured by a lien
to which the property or assets owned or held by such Person is subject, whether
or not the obligation or obligations secured thereby shall have been assumed
(provided, that if such obligation or obligations shall not have been assumed,
the amount of such Indebtedness shall be deemed to be the lesser of the
principal amount of the obligation or the fair market value of the pledged
property or assets), (iii) guarantees of items of other Persons which would be
included within this definition for such other Persons (whether or not such
items would appear upon the balance sheet of the guarantor), (iv) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (v) Disqualified Capital
Stock of such Person or any Restricted Subsidiary thereof, and (vi) obligations
of any such Person under any currency agreement or any Interest Rate Agreement
applicable to any of the foregoing (if and to
11
the extent such currency agreement or 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 described above, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided that (i) the amount outstanding at any time of any Indebtedness issued
with original issue discount is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP and (ii)
Indebtedness shall not include any liability for federal, state, local or other
taxes. Notwithstanding any other provision of the foregoing definition, (i) any
trade payable arising from the purchase of goods or materials or for services
obtained and (ii) ordinary recurring radio programming obligations entered into
in the ordinary course of business shall not be deemed to be "Indebtedness" of
the Issuer or any of its Restricted Subsidiaries 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.
"Independent Financial Advisor" means an investment banking firm of
national reputation in the United States (i) which does not, and whose directors
and officers or Affiliates do not, have a direct or indirect financial interest
in the Issuer and (ii) which, in the judgment of the Board of Directors of the
Issuer, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Purchasers" means CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and Bear, ▇▇▇▇▇▇▇ &
Co. Inc.
"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 Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement designed to protect the party indicated
therein against fluctuations in interest rates.
"Investments" means, with respect of any Person, directly or
indirectly, any advance, account receivable (other than an account receivable
arising in the ordinary course of business of such Person), 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
12
purchase of any Capital Stock, bonds, notes, debentures, partnership or joint
venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the making of any
investment in any Person. Investments shall exclude (i) extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices of such Person, (ii) the making of distribution guarantees in the
ordinary course of business and (iii) the repurchase of securities of any Person
by such Person. For the purposes of Section 4.07, (i) "Investment" shall include
and be valued at the fair market value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the original cost of such Investment plus the cost of all
additional Investments by the Issuer or any of its Subsidiaries, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment, reduced by the payment of dividends
or distributions in connection with such Investment or any other amounts
received in respect of such Investment; provided that no such payment of
dividends or distributions or receipt of any such other amounts shall reduce the
amount of any Investment if such payment of dividends or distributions or
receipt of any such amounts would be included in Consolidated Net Income. If the
Issuer or any Restricted Subsidiary of the Issuer sells or otherwise disposes of
any Common Stock of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, the Issuer no
longer owns, directly or indirectly, greater than 50% of the outstanding Common
Stock of such Restricted Subsidiary, the Issuer will be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Common Stock of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date the Notes are first issued by the Issuer
and authenticated by the Trustee under the Indenture.
"Issuer" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Issuer Request" means any written request signed in the name of the
Issuer by the Chairman of the Board of Directors, the Chief Executive Officer,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of the Issuer and attested to by the Secretary or any Assistant Secretary of the
Issuer.
"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
13
preferential arrangement of any kind or nature whatsoever on or with respect to
such property or assets (including without limitation, any Capitalized Lease
Obligation, conditional sales, or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity Date" means August 1, 2006.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Income" means, with respect to any Person, for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Investment" means, with respect to any Person, the excess of (i)
the aggregate amount of all Investments in Unrestricted Subsidiaries or joint
ventures made by such Person 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 such
Person) 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 Proceeds received by such Person from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of such Person); provided, that with respect to all Investments made
in an Unrestricted Subsidiary the sum of clauses (A) and (B) above with respect
to such Investments shall not exceed the aggregate amount of all such
Investments made in such Unrestricted Subsidiary.
"Net Proceeds" means (a) in the case of any sale or issuance of Capital
Stock by or equity contribution to any Person, the aggregate net proceeds
received by such Person, 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 such Person, 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 shares of Capital Stock of the Company which
is not Disqualified Capital Stock, the net book value of such outstanding
securities on the date of such exchange, exercise, conversion or surrender (plus
any additional amount required to be paid by the holder to such Person 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 such Person in connection therewith).
"Non-U.S. Person" means a Person who is not a U.S. person, as defined
in Regulation S.
14
"Notes" means the Senior Discount Notes, the Exchange Notes and the
Private Exchange Notes.
"Offering" means the offering of the Notes as described in the Offering
Memorandum.
"Offering Memorandum" means the Offering Memorandum dated July 22, 1998
pursuant to which the Notes issued on the Issue Date were offered.
"Officer", with respect to any Person (other than the Trustee), means
the Chairman of the Board of Directors, Chief Executive Officer, the President,
any Vice President and the Chief Financial Officer, the Treasurer or the
Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of the Indenture.
"Opinion of Counsel" means a written opinion reasonably satisfactory in
form and substance to the Trustee from legal counsel, which counsel is
reasonably acceptable to the Trustee, stating the matters required by Section
11.05 and delivered to the Trustee.
"Permitted Asset Swap" means any transfer of properties or assets by
the Issuer or any of its Subsidiaries in which at least 90% of the consideration
received by the transferor consists of properties or assets (other than cash)
that will be used in the business of the transferor; provided, that (i) the
aggregate fair market value (as determined in good faith by the Board of
Directors) of the property or assets being transferred by the Issuer or such
Subsidiary is not greater than the aggregate fair market value (as determined in
good faith by the Board of Directors) of the property or assets received by the
Issuer or such Subsidiary in such exchange and (ii) the aggregate fair market
value (as determined in good faith by the Board of Directors) of all property or
assets transferred by the Issuer and any of its Subsidiaries in connection with
exchanges in any period of twelve consecutive months shall not exceed 15% of the
total assets of the Issuer on the last day of the preceding fiscal year.
"Permitted Holders" means (a) Warburg, ▇▇▇▇▇▇ Ventures, L.P. and any
successor funds, (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
(c) any spouse and any trust, holding company, or similar entity established by
and controlled by any of (b) for the principal benefit of any of them or their
spouses, lineal descendents or other family members.
"Permitted Indebtedness" means:
15
(i) Indebtedness of the Issuer or any Restricted Subsidiary arising
under or in connection with the Senior Credit Facility in an aggregate
principal amount not to exceed $20.0 million outstanding at any time;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness of the Issuer or any Restricted Subsidiary
outstanding on the Issue Date;
(iv) Indebtedness of the Issuer to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to the Issuer or another
Restricted Subsidiary; provided that (A) if the Issuer is the obligor on
such Indebtedness, such Indebtedness (x) does not mature prior to the
Stated Maturity of the Notes and has an Average Life longer than the Notes
and (y) is unsecured and expressly subordinated to the payment in full in
cash of all obligations in respect of the Notes and (B)(I) any subsequent
issuance or transfer of equity interests that results in any such
Indebtedness being held by a Person other than the Issuer or a Restricted
Subsidiary of the Issuer and (II) any sale or transfer of any such
Indebtedness to a Person other than the Issuer or a Restricted Subsidiary
of the Issuer will be deemed to constitute an incurrence of Indebtedness by
the Issuer or such Restricted Subsidiary not permitted by this clause (iv);
(v) Purchase Money Indebtedness and Capitalized Lease Obligations of
the Issuer or any of its Restricted Subsidiaries incurred to acquire
property in the ordinary course of business which Purchase Money
Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed $5.0 million outstanding at any time;
(vi) Interest Rate Agreements;
(vii) Refinancing Indebtedness;
(viii) fidelity, performance, appeal, surety or similar bonds incurred
or provided in the ordinary course of business;
(ix) any guarantee of Indebtedness of the Issuer or any Restricted
Subsidiary which Indebtedness is otherwise permitted to be incurred in
accordance with the Indenture;
(x) Contingent obligations of the Issuer or its Restricted Subsidiaries
in respect of customary indemnification and purchase price adjustment
obligations incurred in connection with an Asset Sale including
transactions excluded from clause (b)(i) of the definition of "Asset Sale";
provided, that the maximum assumable liability in respect of all such
obligations shall at no time exceed the gross proceeds actually received by
16
the Issuer and its Restricted Subsidiaries in connection with such Asset
Sale; and
(xi) additional Indebtedness of the Issuer not to exceed $10.0 million
in aggregate principal amount at any one time outstanding.
For purposes of determining compliance with Section 4.06, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of this definition described in clauses (i) through (xi) above or is
permitted to be incurred pursuant to the first paragraph of Section 4.06 and
also meets the criteria of one or more of the categories of this definition
described in clauses (i) through (xi) above, the Issuer shall, in its sole
discretion, classify such item of Indebtedness in any manner that complies with
this covenant and may from time to time reclassify such item of Indebtedness in
any manner in which such item could be incurred at the time of such
reclassification.
"Permitted Investments" means Investments made on or after the Issue
Date consisting of
(i) Investments by the Issuer , or by a Restricted Subsidiary thereof,
in the Company or a Restricted Subsidiary of the Issuer;
(ii) Investments by the Issuer, or by a Subsidiary thereof, in a
Person, if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Issuer or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Issuer or a
Restricted Subsidiary thereof;
(iii) Investments in cash and Cash Equivalents;
(iv) reasonable and customary advances made to employees in connection
with their relocation or for travel or other expenses and loans to
employees not to exceed $1,500,000 in the aggregate at any one time
outstanding;
(v) an Investment that is made by the Issuer or a Restricted Subsidiary
thereof in the form of any Capital Stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to the Issuer or such Restricted Subsidiary solely as
partial consideration for the consummation of an Asset Sale that is
otherwise permitted under Section 4.12;
(vi) Interest Rate Agreements entered into in the ordinary course of
the Company's or its Restricted Subsidiaries' business;
17
(vii) deposits made pursuant to agreements to acquire, or pursuant to
agreements with options to acquire, radio station licenses and related
assets (or Capital Stock of Persons owning such assets), in an amount not
to exceed 10% of the purchase price; provided that the station to be
acquired will be owned by the Company or a Restricted Subsidiary upon
consummation of the contemplated acquisition and provided, further, that
deposits made under this clause shall cease to be treated as Permitted
Investments upon forfeit of such deposit for any reason; and
(viii) additional Investments not to exceed $6.0 million at any one
time outstanding.
"Permitted Liens" means (i) Liens on property or assets of, or any
shares of Capital Stock of or secured indebtedness of, any corporation existing
at the time such corporation becomes a Restricted Subsidiary of the Issuer or at
the time such corporation is merged into the Issuer or any of its Restricted
Subsidiaries; provided that such Liens are not incurred in connection with, or
in contemplation of, such corporation becoming a Restricted Subsidiary of the
Issuer or merging into the Issuer or any of its Restricted Subsidiaries, (ii)
Liens securing Refinancing Indebtedness; provided that any such Lien does not
extend to or cover any Property, Capital Stock or Indebtedness other than the
Property, shares or debt securing the Indebtedness so refunded, refinanced or
extended, (iii) Liens in favor of the Issuer or any of its Restricted
Subsidiaries, (iv) Liens securing industrial revenue bonds, (v) Liens to secure
Purchase Money Indebtedness; provided 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,
(vi) Liens securing Capitalized Lease Obligations; provided that such Lien does
not extend to any property other than that subject to the underlying lease,
(vii) statutory liens or landlords', carriers', warehousemens', mechanics',
suppliers', materialmens', repairmens' or other like Liens arising in the
ordinary course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor, (viii) Liens for taxes, assessments or
governmental charges that are not delinquent or that are being contested in good
faith by appropriate proceedings, (ix) Liens incurred or deposits made in the
ordinary course of business in connection with workers-compensation,
unemployment insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business consistent
with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
18
government contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money), (x)
judgment Liens not giving rise to an Event of Default; (xi) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of the Issuer or any of its Restricted
Subsidiaries, (xii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof, (xiii)
Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of the Issuer or any of its
Subsidiaries, including rights of offset and set-off, (xiv) Liens securing
Interest Rate Agreements which Interest Rate Agreements relate to Indebtedness
that it otherwise permitted under this Indenture, (xv) Liens not covered by any
other clause of this definition which are existing on the Issue Date and (xvi)
Liens securing Indebtedness under the Senior Credit Facility.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Physical Notes" means certificated Notes in registered form in
substantially the form set forth in Exhibit A.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"principal amount" means principal amount at maturity.
"Private Exchange" has the meaning set forth in the Registration Rights
Agreement.
"Private Exchange Notes" has the meaning set forth in the Registration
Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Rule 144A 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.
19
"Purchase Agreement" means the Securities Purchase Agreement dated July
22, 1998 by and among the Issuer, the Guarantors and the Initial Purchasers.
"Purchase Money Indebtedness" means any Indebtedness incurred by a
Person to finance the cost (including the cost of construction) of an item of
Property purchased in the ordinary course of business, 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" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Redeemable Dividend" means, for any dividend or distribution with
regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to the terms of the Notes.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances
or extends any Indebtedness of the Issuer outstanding on the Issue Date
(including, without limitation, the Notes) or other Indebtedness permitted to be
incurred by the Issuer pursuant to the first paragraph of Section 4.06 or by the
Issuer or its Restricted Subsidiaries pursuant to the definition of "Permitted
Indebtedness", but only to the extent that (i) the Refinancing Indebtedness is
subordinated to the Notes to at least the same extent as the Indebtedness being
refunded, refinanced or extended, if at all, (ii) the Refinancing Indebtedness
is scheduled to mature either (a) no earlier than the Stated Maturity of the
Indebtedness being refunded, refinanced or extended, or (b) after the Stated
Maturity of the Notes, (iii) the portion, if any, of the Refinancing
Indebtedness that is scheduled to mature on or prior to the Stated Maturity of
the Notes has an Average Life at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the Average Life of the portion of the
Indebtedness being refunded, refinanced or extended that is scheduled to mature
on or prior to the Stated Maturity of the Notes, (iv) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the sum of (a) the aggregate principal amount then outstanding under the
Indebtedness being refunded, refinanced or extended, (b) the amount of accrued
and unpaid interest, if any, and premiums owed, if any, not in excess of
preexisting prepayment provisions on such Indebtedness being refunded,
refinanced or extended and (c) the amount of customary
20
fees, expenses and costs related to the incurrence of such Refinancing
Indebtedness and (v) such Refinancing Indebtedness is incurred by the same
Person that initially incurred the Indebtedness being refunded, refinanced or
extended except that the Issuer may incur Refinancing Indebtedness to refund,
refinance or extend Indebtedness of any Wholly Owned Subsidiary of the Issuer.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of July 22, 1998 among the Issuer, the Guarantors and the Initial
Purchasers, as amended from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Related Business" means the business of the Issuer or any of its
Restricted Subsidiaries as conducted on the Issue Date or businesses similar or
ancillary thereto.
"Responsible Officer" when used with respect to the Trustee, means an
officer or assistant officer assigned to the corporate trust department of the
Trustee (or any successor group of the Trustee) with direct responsibility for
the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Note" means a Note that has the same meaning as "Restricted
Security" within the meaning of 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
Note.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock of
the Issuer or any Restricted Subsidiary of the Issuer or any payment made to the
direct or indirect holders (in their capacities as such) of Capital Stock of the
Issuer or any Restricted Subsidiary of the Issuer (other than (x) dividends or
distributions payable solely in Capital Stock (other than Disqualified Capital
Stock) or in options, warrants or other rights to purchase such Capital Stock
(other than Disqualified Capital Stock) and (y) in the case of Restricted
Subsidiaries of the Issuer, dividends or distributions payable to the Issuer or
to a Wholly Owned Subsidiary of the Issuer), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Issuer or
any of its Restricted Subsidiaries (other than Capital Stock owned by the Issuer
or a Wholly Owned Subsidiary of the Issuer, excluding Disqualified Capital
Stock) or any option, warrants or other rights to purchase such Capital Stock,
(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
21
of payment to the Notes (other than subordinated Indebtedness acquired in
anticipation of satisfying a scheduled sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
acquisition), (iv) the making of any Investment (other than a Permitted
Investment) or guarantee of any Investment (other than a Permitted Investment)
in any Person, (v) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary and (vi) forgiveness of any Indebtedness of an Affiliate of the
Issuer to the Issuer or a Restricted Subsidiary of the Issuer. 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 Subsidiary" means a Subsidiary of the Issuer other than an
Unrestricted Subsidiary and includes all of the direct or indirect Subsidiaries
of the Issuer existing as of the Issue Date. The Board of Directors of the
Issuer may designate any Unrestricted Subsidiary or any Person to be acquired
that is to become a Subsidiary as a Restricted Subsidiary if immediately after
giving pro forma effect to such action (and treating any Acquired Indebtedness
as having been incurred at the time of such action), (i) no Default or Event of
Default shall have occurred and be continuing (or would result therefrom) and
(ii) in the case of the designation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the Issuer could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"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 Issuer or any Restricted Subsidiary of the
Issuer of any real or tangible personal property, which property has been or is
to be sold or transferred by the Issuer or such Restricted Subsidiary to such
Person in contemplation of such leasing.
"S&P" means Standard & Poor's Corporation and its successors.
"Securities Act" means the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Senior Credit Facility" means the Credit Agreement, dated as of July
8, 1998, among the Issuer, the guarantors party thereto, Canadian Imperial Bank
of Commerce, as agent and fronting lender, and the financial institutions party
thereto, as lenders, together with
22
the related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Restricted
Subsidiaries of the Issuer as additional borrowers or guarantors thereunder
(provided that such increase in borrowings or adding Subsidiaries as additional
borrowers or guarantors is permitted by the applicable covenants under the
Indenture) of all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Significant Restricted Subsidiary" means a Restricted Subsidiary that
is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act and the Exchange Act.
"Stated Maturity" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Taxes" means any present or future tax, duty, levy, impost, assessment
or other government charge (including penalties, interest and any other
liabilities related thereto) imposed or levied by or on behalf of a Taxing
Authority.
"Taxing Authority" means any government or any political subdivision or
territory or possession of any government or any authority or agency therein or
thereof having power to tax.
23
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary of the Issuer (including any newly acquired or newly formed
Subsidiary of the Issuer) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Issuer or any Restricted Subsidiary; provided, that neither the Issuer
nor its Restricted Subsidiaries has any Guarantee of any Indebtedness of such
Subsidiary outstanding at the time of such designation and such designation
would be permitted under the covenant described under Section 4.07 hereof. Any
such designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the board resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Wholly Owned Subsidiary" means any Restricted Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares) of which
are owned, directly or indirectly, by the Issuer.
24
SECTION 1.02. Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction"........................ 4.10
"Agent Members"................................ 2.16(a)
"Bankruptcy Law"............................... 6.01
"Business Day"................................. 11.07
"CEDEL"........................................ 2.16(a)
"Change of Control Offer"...................... 4.19(a)
"Change of Control Purchase Price"............. 4.19(a)
"Change of Control Payment Date"............... 4.19(a)
"Covenant Defeasance".......................... 9.03
"Custodian".................................... 6.01
"Euroclear".................................... 2.16(a)
"Events of Default"............................ 6.01
"Excess Proceeds Offer"........................ 4.12
"Global Notes"................................. 2.16(a)
"Legal Defeasance"............................. 9.02
"Legal Holiday"................................ 11.07
"Other Notes".................................. 2.02
"Paying Agent"................................. 2.04
"Registrar".................................... 2.04
"Regulation S Global Note"..................... 2.16(a)
"Regulation S Notes"........................... 2.02
"Rule 144A Notes".............................. 2.02
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
25
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Issuer, the Guarantors
or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural include
the singular;
(4) words used herein implying any gender shall apply to both genders;
(5) "herein" "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subsection;
(6) 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, applied on a basis consistent with the
most recent audited consolidated financial statements of the Issuer;
(7) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof.
26
ARTICLE TWO
THE NOTES
SECTION 2.01. Amount of Notes.
The Trustee shall authenticate Notes for original issue on the Issue
Date in the aggregate principal amount at maturity not to exceed $158,088,000
upon a written order of the Issuer in the form of an Officers' Certificate of
the Issuer. 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 a Issuer Request and an 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 at
maturity not to exceed $158,088,000 for issuance in exchange for the Notes
tendered for exchange pursuant to such exchange offer registered under the
Securities Act or pursuant to a Private Exchange. Exchange Notes or Private
Exchange Notes may have such distinctive series designations and such changes in
the form thereof as are specified in the Issuer Request referred to in the
preceding sentence.
SECTION 2.02. 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
Issuer is 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 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 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") may be represented by a
Global Note or, if such an investor may not hold an interest in the Restricted
Global Note, a Physical Note, in each case, 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
Issuer, the Guarantors
27
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.
SECTION 2.03. Execution and Authentication.
Two Officers of the Issuer shall sign, or one Officer of the Issuer
shall sign and one Officer of the Issuer (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to, the
Notes for the Issuer 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 Issuer, and the Issuer shall deliver such Note to the 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 reasonably acceptable
to the Issuer to authenticate the Notes. 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 Issuer and Affiliates of the Issuer.
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 principal amount at maturity and any integral multiple
thereof.
28
SECTION 2.04. Registrar and Paying Agent.
The Issuer 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 Issuer, if any, in respect of the Notes and this Indenture may be
served. The Issuer hereby initially designates the office of Wilmington Trust
Company, c/▇ ▇▇▇▇▇▇ Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 19th Floor, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 Issuer may have one or more
additional Paying Agents. The term "Paying Agent" includes any additional Paying
Agent. Neither the Issuer nor any Affiliate thereof may act as Paying Agent.
The Issuer shall enter into an appropriate agency agreement, which
shall incorporate the provisions of the TIA, with any Agent that is not a party
to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuer shall notify the Trustee of the
name and address of any such Agent. If the Issuer fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Issuer initially appoints the Corporate Trust 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 2.05. 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 Issuer or any other obligor on the Notes or the Guarantors),
and the Issuer and the Paying Agent shall notify the Trustee of any default by
the Issuer (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 Issuer 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 6.01 (1) or (2), 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.
29
SECTION 2.06. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Noteholders. If the Trustee is not the Registrar, the Issuer 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 2.07. 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 Issuer and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Issuer shall issue and execute and the Trustee
shall authenticate new Notes (and the Guarantors shall execute the guarantee
thereon) 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 Issuer 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, 3.06, 4.12, 4.19 or 8.05 (in
which events the Issuer shall be responsible for the payment of such taxes). The
Registrar 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 of any Note selected, called or being called for redemption except
the unredeemed portion of any Note being redeemed in part.
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.
Each Holder of a Note agrees to indemnify the Issuer 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.
30
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Issuer's compliance with or have
any responsibility with respect to the Issuer's compliance with any Federal or
state securities laws.
SECTION 2.08. 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 Issuer shall issue and the Trustee shall authenticate a
replacement Note (and the Guarantors shall execute the guarantee thereon) if the
Holder of such Note furnishes to the Issuer and the Trustee evidence reasonably
acceptable to them of the ownership and the destruction, loss or theft of such
Note and if the requirements of Section 8-405 of the New York Uniform Commercial
Code as in effect on the date of this Indenture are met. If required by the
Trustee or the Issuer, an indemnity bond shall be posted, sufficient in the
judgment of both to protect the Issuer, the Guarantors, the Trustee and any
Paying Agent from any loss that any of them may suffer if such Note is replaced.
The Issuer may charge such Holder for the Issuer's reasonable out-of-pocket
expenses in replacing such Note and the Trustee may charge the Issuer for the
Trustee's expenses (including, without limitation, attorneys' fees and
disbursements) in replacing such Note. Every replacement Note shall constitute a
contractual obligation of the Issuer.
SECTION 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Article Nine,
on or after the date on which the conditions set forth in Sections 9.04 or 9.09
have been satisfied, those Notes theretofore authenticated and delivered by the
Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it 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 Issuer.
If the Paying Agent holds, in its capacity as such, on the Maturity
Date or on any optional redemption date, money sufficient to pay all accrued
interest and Accreted Value or 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, Accreted Value ceases to accrete or interest on them
ceases to accrue, as the case may be.
31
SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount at
maturity 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 Issuer or any other Affiliate of
the Issuer shall be disregarded as though they were not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible 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 established to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not the Issuer, a Guarantor, any other obligor on the Notes or any of
their respective Affiliates.
SECTION 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Issuer
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 Issuer considers appropriate for temporary Notes. Without unreasonable
delay, the Issuer 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 Issuer 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.
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 cancelled Notes and
deliver a certificate of destruction thereof to the Issuer. The Issuer may not
reissue or resell, or issue new Notes to replace, Notes that the Issuer has
redeemed or paid, or that have been delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Issuer defaults on a payment of interest on the Notes, it shall
pay interest on overdue installments of interest, plus (to the extent permitted
by law) any interest payable on the defaulted interest, pursuant to Section 4.01
hereof, to the Persons who are Noteholders
32
on a subsequent special record date, which date shall be at least five Business
Days prior to the payment date. The Issuer shall fix such special record date
and payment date in a manner satisfactory to the Trustee. At least 10 days
before such special record date, the Issuer shall mail to each Noteholder a
notice that states the special record date, the payment date and the amount of
interest on overdue interest, and interest payable on defaulted interest, if
any, to be paid. The Issuer shall fix such special record date and payment date
and provide the Trustee at least 20 days notice of the proposed amount of
interest on overdue interest and interest payable on defaulted interest, if any,
to be paid and the special payment date and at the same time the Issuers shall
deposit with the Trustee the aggregate amount of cash proposed to be paid in
respect of such interest and defaulted interest. The Issuer 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 Issuer 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 Issuer 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 Issuer shall promptly
notify the Trustee of any such CUSIP number used by the Issuer in connection
with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
and Maturity Date, the Issuer 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 Paying Agent to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The Accreted Value,
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 Accreted Value, principal and interest
on Physical Notes shall be payable, either in person or by mail, at the office
of the Paying Agent. The Issuer shall deliver an Officers' Certificate to the
Trustee at least 5 business days before any applicable Interest Payment Date
setting forth the amount of Additional Interest.
33
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 "Rule
144A Global Notes"). 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 Rule 144A 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, of Agent Members acting 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 Rule 144A 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
Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of
the Issuer 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.
(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 Issuer
that it is unwilling or unable to continue as depository for such Global Note
and the Issuer thereupon fails to appoint a successor depository or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Issuer, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing 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
34
(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 at maturity of the
Global Note in an amount equal to the principal amount at maturity of the
beneficial interest in the Global Note to be transferred, and the Issuer shall
execute, and the Trustee shall upon receipt of a written order from the Issuer
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 Issuer shall execute
(and the Guarantors shall execute the Guarantee), and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depository
in writing in exchange for its beneficial interest in the Global Notes, an equal
aggregate principal amount at maturity 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 Issuer
determines 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 the Regulation S Global Note and the
issue date of such Notes (such period through and including such 40th day, the
"Restricted Period"), a beneficial interest in a Regulation S Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
corresponding Rule 144A 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 whom 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 Rule 144A 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 Agent Members
acting for Euroclear or CEDEL.
35
(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 two years or more after the
Issue Date 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
any transfer of a Note bearing the Private Placement Legend for a Note not
bearing the Private Placement Legend, the Registrar has 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 at maturity of a Global Note in an amount equal
to the principal amount at maturity of the beneficial interest in a Global Note
to be transferred, and (b) the Registrar shall reflect on its
36
books and records the date and an increase in the principal amount at maturity
of a Global Note in an amount equal to the principal amount at maturity of the
beneficial interest in the Global Note transferred or the Issuer 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 Physical Note stating, or has otherwise advised the Issuer 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 Physical Note stating, or has otherwise
advised the Issuer and the Registrar in writing, that it is purchasing the
Physical 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 Rule 144A and acknowledges that it has received
such information regarding the Issuer 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 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 at maturity of the
Global Note in an amount equal to the principal amount at maturity 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) of this Section 2.17, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Note has been sold pur-
37
suant to an effective registration statement under the Securities Act and the
Registrar has received an Officers' Certificate from the Issuer 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 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 Issuer 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 THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to paragraph 5 of the
Notes, at least 45 days prior to the Redemption Date (unless a shorter notice
shall be agreed to in writing by the Trustee), the Issuer shall notify the
Trustee in writing of the Redemption Date, the principal amount at maturity of
Notes to be redeemed and the redemption price, and deliver to the Trustee an
Officers' Certificate stating that such redemption will comply with the
conditions contained in paragraph 5 of the Notes. Notice given to the Trustee
pursuant to this Section 3.01 may not be revoked after the time that notice is
given to Noteholders pursuant to Section 3.03. Any such notice may be cancelled
at any time prior to notice of such redemption being mailed to any Holder and
shall thereby be void and of no effect.
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.
In the event that fewer than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed, if the Notes are listed on a
national securities exchange, in accordance with the rules of such exchange or,
if the Notes are not so listed, either on a pro
38
rata basis or by lot, or such other method as it shall deem fair and equitable;
provided, however, that the Issuer shall have previously notified the Trustee in
writing of any such exchange on which the Notes are listed, and provided,
further that if a partial redemption is made with the proceeds of an Equity
Offering, selection of the Notes or portion thereof for redemption shall be made
by the Trustee on a pro rata basis to the extent practical, unless such a method
is prohibited. The Trustee shall promptly notify the Issuer of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed. The Trustee may select
for redemption portions of the principal of the Notes that have denominations
larger than $1,000 principal amount at maturity. Notes and portions thereof the
Trustee selects shall be redeemed in amounts of $1,000 principal amount at
maturity or whole multiples of $1,000 principal amount at maturity. For all
purposes of this Indenture unless the context otherwise requires, provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption Date,
the Issuer shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.04 hereof.
The notice shall identify the Notes to be redeemed (including the CUSIP
numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and accrued
interest, if any, to be paid;
(3) if any Note is being redeemed in part, the portion of the principal
amount at maturity of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount at maturity equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Issuer defaults in making the redemption payment,
Accreted Value will cease to accrete and interest on Notes called for
redemption ceases to accrue on and after the Redemption Date;
39
(7) the provision of paragraph 5 of the Notes, as the case may be,
pursuant to which the Notes called for redemption are being redeemed; and
(8) the aggregate principal amount at maturity of Notes that are being
redeemed.
At the Issuer's written request made at least five Business Days prior
to the date on which notice is to be given, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's sole expense. In such event,
the Issuer shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus accrued and unpaid interest,
if any, to the Redemption Date. Upon surrender to the Paying Agent, such Notes
shall be paid at the redemption price, including any premium, plus accrued and
unpaid interest, if any, to the Redemption Date, provided that if the Redemption
Date is after a regular record date and on or prior to the Interest Payment
Date, the accrued and unpaid interest, if any, shall be payable to the Holder of
the redeemed Notes registered on the relevant record date, and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be made on
the next succeeding Business Day and no interest shall accrue for the period
from such Redemption Date to such succeeding Business Day.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each Redemption Date,
the Issuer shall deposit with the Paying Agent in immediately available funds
money sufficient to pay the redemption price of, including premium, if any, and
accrued and unpaid interest, if any, on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which
have been delivered by the Issuer to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of, including premium, if any, and accrued and unpaid interest,
if any, on Notes called for redemption shall have been made available in
accordance with the preceding paragraph, the Notes called for redemption will
cease to accrue interest or Accreted Value, as the case may be, and the only
right of the Holders of such Notes will be to receive payment of the redemption
price of and, subject to the first proviso in Section 3.04, accrued and unpaid
interest, if any, on such Notes to the Redemption Date. If any Note surrendered
for redemption shall
40
not be so paid, then from the Redemption Date until such redemption payment is
made, Accreted Value or interest on the unpaid principal of the Note, as the
case may be, and any interest not paid on such unpaid principal, in each case,
will be paid at the rate and in the manner provided in the Notes.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for the Holder thereof a new Note equal in principal amount at
maturity to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay the Accreted Value or principal of and interest
(including all Additional Interest as provided in the Registration Rights
Agreement on the Notes on the dates and in the manner provided in the Notes and
this Indenture. An installment of principal or interest shall be considered paid
on the date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay such installment.
The Issuer shall pay interest on overdue Accreted Value or principal
(including post-petition interest in a proceeding under any Bankruptcy Law), and
overdue interest, to the extent lawful, at the rate specified in the Notes to
the extent lawful.
SECTION 4.02. Reports to Holders.
(a) Whether or not required by the rules and regulations of the
Commission, the Issuer shall furnish to the Trustee and the Holders of the Notes
all annual and quarterly financial information that would be required to be
contained in a filing with the Commission on Forms 10-K, 10-Q and 8-K, as
applicable, if the Issuer were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual financial information, a report
thereon by the Issuer's independent accountants; provided, that (x) such
quarterly financial information may be prepared in accordance with GAAP, (y)
such quarterly financial information shall be furnished within 60 days following
the end of each fiscal quarter of the Issuer and (z) such annual financial
information shall be furnished within 105 days following the end of the fiscal
year of the Issuer. In addition, whether or not required by the rules and
regulations of the
41
Commission, the Issuer will file a copy of all such information and reports with
the Commission for public availability (unless the Commission will not accept
such a filing). In addition, the Issuer shall furnish to the Holders of the
Notes and to prospective investors, upon the requests of such Holders, any
information required to be delivered pursuant to Rule 144(d)(4) under the
Securities Act so long as the Notes are Restricted Securities. The Issuer will
also comply with the other provisions of TIA section 314(a).
(b) The Issuer shall, upon request, provide to any Holder of Notes or
any prospective transferee of any such Holder any information concerning the
Issuer (including financial statements) necessary in order to permit such Holder
to sell or transfer Notes in compliance with Rule 144A under the Securities Act;
provided, that the Issuer shall not be required to furnish such information in
connection with any request made on or after the date which is two years (or
such other date as the Notes shall be freely transferable pursuant to Rule 144)
from the later of (i) the date such Note (or any predecessor Note) was acquired
from the Issuer or (ii) the date such Note (or any predecessor Note) was last
acquired from an "affiliate" of the Issuer within the meaning of Rule 144 under
the Securities Act. The Issuer shall provide the Trustee a copy of any
information provided to holders under this Section 4.02.
SECTION 4.03. Waiver of Stay, Extension or Usury Laws.
The Issuer and the Guarantors covenant (to the extent that they may
lawfully do so) that they shall not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Issuer and the Guarantors from paying all or any
portion of the Accreted Value, principal of, premium, if any, and/or interest on
the Notes as contemplated herein, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) the Issuer and the
Guarantors hereby expressly waive all benefit or advantage of any such law, and
covenant that they will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.04. Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 105 days after the
end of each fiscal year and on or before 60 days after the end of the first,
second and third quarters of each fiscal year, an Officers' Certificate stating
that a review of the activities of the Issuer and its Subsidiaries during such
fiscal year or fiscal quarter, as the case may be, has been made under the
supervision of the signing Officers with a view to determining whether the
Issuer and the Guarantors have kept, observed, performed and fulfilled their
obligations under this
42
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge, the Issuer and the
Guarantors have kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and are not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action they are
taking or propose to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the Accreted Value, principal of or interest, if any, on
the Notes is prohibited or if such event has occurred, a description of the
event and what action the Issuer and the Guarantors is taking or propose to take
with respect thereto.
(b) The Issuer and the Guarantors 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 Issuer and the Guarantors
are taking or propose to take with respect thereto.
(c) The Issuer's fiscal year currently ends on December 31. The Issuer
will provide written notice to the Trustee of any change in its fiscal year.
SECTION 4.05. Taxes.
The Issuer and the Guarantors shall, and shall cause each of their
Subsidiaries to, pay prior to delinquency all material taxes, assessments, and
governmental levies except as contested in good faith and by appropriate
proceedings.
SECTION 4.06. Limitation on Additional Indebtedness.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness); provided that if no Default or Event of
Default will have occurred and be continuing at the time or as a consequence of
the incurrence of such Indebtedness, the Issuer may incur Indebtedness (and the
Issuer and its Restricted Subsidiaries may incur Acquired Indebtedness) if after
giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Issuer's Consolidated Leverage Ratio is
less than 7.0 to 1. The accretion of original issue discount (and any accruals
of interest) will not be deemed an incurrence of Indebtedness for purposes of
this covenant.
Notwithstanding the foregoing, the Issuer and its Restricted
Subsidiaries may incur Permitted Indebtedness; provided that the Issuer will not
incur any Permitted Indebtedness that ranks junior in right of payment to the
Notes that matures prior to the Stated Maturity
43
of the Notes or has an Average Life shorter than the Notes; provided, further,
that the Issuer will not incur any Indebtedness owed to a Foreign Restricted
Subsidiary unless such Indebtedness is subordinated in right of payment to the
Issuer's obligations under the Notes.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, incur any Indebtedness which by its terms (or by the terms of
any agreement governing such Indebtedness) is subordinated in right of payment
to any other Indebtedness of the Issuer or such Restricted Subsidiary unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate in right of payment to
the Notes pursuant to subordination provisions that are substantively identical
to the subordination provisions of such Indebtedness (or such agreement) that
are most favorable to the holders of any other Indebtedness of the Issuer or
such Restricted Subsidiary, as the case may be.
SECTION 4.07. Limitation on Restricted Payments.
The Issuer will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default will have occurred and be continuing
at the time of or immediately after giving effect to such Restricted
Payment;
(b) immediately after giving pro forma effect to such Restricted
Payment, the Issuer could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under Section 4.06 hereof; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Issuer's EBITDA from the Issue
Date to the date of determination minus 1.4 times the Issuer's Consolidated
Interest Expense from the Issue Date to the date of determination (or in
the event such amount shall be a deficit, minus 100% of such deficit) and
(2) 100% of the aggregate Net Proceeds received by the Issuer from the
issuance or sale after the Issue Date (other than to a Subsidiary) of (A)
Capital Stock (other than Disqualified Capital Stock) of the Issuer or (B)
any Indebtedness or other securities of the Issuer that are convertible
into or exercisable or exchangeable for Capital Stock (other than
Disqualified Capital Stock) of the Issuer, which have been so converted,
exercised or exchanged, as the case may be; excluding, in the case of
clause (c)(2), any Net Proceeds from a Equity Offering to the extent used
to redeem the Notes in accordance with the second paragraph of Section 5 of
the Notes. For purposes of determining under this clause (c) the amount
expended for Restricted
44
Payments, cash distributed will be valued at the face amount thereof and
property other than cash will be valued at its fair market value.
The provisions of this Section 4.07 will not prohibit (i) the payment
of any distribution within 60 days after the date of declaration thereof, if at
such date of declaration such payment would comply with the provisions of the
Indenture, (ii) the repurchase, redemption or other acquisition or retirement of
any shares of Capital Stock of the Issuer or Indebtedness subordinated to the
Notes by conversion into, or by or in exchange for, shares of Capital Stock of
the Issuer (other than Disqualified Capital Stock), or out of the Net Proceeds
of the substantially concurrent sale (other than to a Subsidiary of the Issuer)
of other shares of Capital Stock of the Issuer (other than Disqualified Capital
Stock), (iii) the redemption, repayment or retirement of Indebtedness of the
Issuer 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 of the Issuer (other than any Indebtedness owed to a Subsidiary)
that (A) is contractually subordinated in right of payment to the Notes to at
least the same extent as the Indebtedness being redeemed or retired, (B) is
scheduled to mature either (I) no earlier than the Stated Maturity of the
Indebtedness being redeemed or retired or (II) after the Stated Maturity of the
Notes, (C) the portion, if any, of which Indebtedness that is scheduled to
mature on or prior to the Stated Maturity of the Notes has an Average Life at
the time such Indebtedness is incurred that is equal to or greater than the
Average Life of the portion of the Indebtedness being redeemed or retired that
is scheduled to mature on or prior to the Stated Maturity of the Notes and (D)
is in an aggregate principal amount that is equal to or less than the sum of (x)
the aggregate principal then outstanding under the Indebtedness being redeemed
or retired, (y) the amount of accrued and unpaid interest, if any, and premiums
owed, if any, not in excess of preexisting prepayment provisions on such
Indebtedness being redeemed or retired and (z) the amount of customary fees,
expenses and costs related to the incurrence of such Indebtedness, (iv) the
retirement of any shares of Disqualified Capital Stock of the Issuer by
conversion into, or by exchange for, shares of Disqualified Capital Stock of the
Issuer, or out of the Net Proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Issuer) of other shares of Disqualified Capital
Stock of the Issuer that (A) is subordinated to the Notes to at least the same
extent as the Disqualified Capital Stock being retired, (B) is scheduled to be
mandatorily redeemed, if at all, either (I) no earlier than the Disqualified
Capital Stock being retired or (II) after the Stated Maturity of the Notes, (C)
the portion, if any, of which Disqualified Capital Stock that is scheduled to be
mandatorily redeemed on or prior to the Stated Maturity of the Notes has a
weighted average life to mandatory redemption at the time such Disqualified
Capital Stock is issued that is equal to or greater than the weighted average
life to mandatory redemption of the portion of the Disqualified Capital Stock
being retired that is scheduled to be mandatorily redeemed on or prior to the
Stated Maturity of the Notes, and (D) has an aggregate liquidation preference
that is equal to or less than the sum of (a) the aggregate liquidation
preference then outstanding of the Disqualified Capital Stock
45
being retired, (b) the amount of accrued and unpaid dividends, if any, and
premiums owed, if any, not in excess of preexisting redemption provisions on
such Disqualified Capital Stock being retired and (c) the amount of customary
fees, expenses and costs related to the issuance of such Disqualified Capital
Stock; provided that any such Net Proceeds and the Fair Market Value of any
Capital Stock issued in exchange for such retired Disqualified Capital Stock are
excluded from clause (c)(2) of the immediately preceding paragraph (and were not
included therein at any time) and are not used to redeem the Notes pursuant to
paragraph 5 of the Notes, (v) the purchase, redemption or other acquisition for
value of shares of Capital Stock (other than Disqualified Capital Stock) or
options on such shares held by the Issuer's officers or employees or former
officers or employees (or their estates or beneficiaries under their estates)
upon the death, disability, retirement or termination of employment of such
current or former officers or employees pursuant to the terms of an employee
benefit plan or any other agreement pursuant to which such shares of Capital
Stock or options were issued or pursuant to a severance, buy-sale or right of
first refusal agreement with such current or former officer or employee;
provided that the aggregate cash consideration paid, or distributions or
payments made (which may include distributions or dividends to Holdings for such
purpose), pursuant to this clause (v) shall not exceed $10,000,000 in the
aggregate; provided that in calculating the aggregate amount of Restricted
Payments made subsequent to the Issue Date for purposes of clause (c) of the
immediately preceding paragraph, amounts expended pursuant to clauses (i) and
(v) (but not (ii), (iii), and (iv)) will be included in any subsequent
calculation; and provided further, that, except in the case of clauses (i) and
(v) of this paragraph, no Default or Event of Default shall have occurred and be
continuing or occur as a consequence of the actions or payments set forth
herein.
Not later than the date of making any Restricted Payment, the Issuer
will 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 the covenant described above were computed, which
calculations may be based upon the Issuer's latest available financial
statements, and that no Default or Event of Default has occurred and is
continuing and no Default or Event of Default will occur immediately after
giving effect to any such Restricted Payments.
Notwithstanding the foregoing, the Issuer may declare and make dividend
payments to Holdings as long as Holdings uses such amounts to pay (A) franchise
taxes and other fees required to maintain Holdings' corporate existence and (B)
taxes associated with operations of the Issuer and its Subsidiaries and such
amounts shall not be deemed Restricted Payments.
46
SECTION 4..08 Limitation on Investments
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, make any Investment other than (i) a Permitted Investment or
(ii) an Investment that is made as a Restricted Payment in compliance with
Section 4.07 above, after the Issue Date.
SECTION 4.09. Limitations on Liens.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any property
or asset of the Issuer or any of its Restricted Subsidiaries or any shares of
Capital Stock or Indebtedness of any Restricted Subsidiary of the Issuer which
owns property or assets, now owned or hereafter acquired, unless (i) if such
Lien secures Indebtedness which is pari passu with the Notes, then the Notes are
secured on an equal and ratable basis with the obligations so secured until such
time as such obligation is no longer secured by a Lien or (ii) if such Lien
secures Indebtedness which is subordinated to the Notes, any such Lien will be
subordinated to a Lien securing the Notes to the same extent as such
Indebtedness is subordinated to the Notes.
SECTION 4.10. Limitation on Transactions with Affiliates.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate (each an "Affiliate Transaction") or extend, renew, waive or otherwise
modify the terms of any Affiliate Transaction entered into prior to the Issue
Date unless (i) such Affiliate Transaction is between or among the Issuer and
its Wholly Owned Subsidiaries; or (ii) the terms of such Affiliate Transaction
are fair and reasonable to the Issuer or such Restricted Subsidiary, as the case
may be, and the terms of such Affiliate Transaction are at least as favorable as
the terms which could be obtained by the Issuer or such Restricted Subsidiary,
as the case may be, in a comparable transaction made on an arm's- length basis
between unaffiliated parties. In any Affiliate Transaction (or any series of
related Affiliate Transactions which are similar or part of a common plan)
involving an amount or having a fair market value in excess of $1,000,000 which
is not permitted under clause (i) above, the Issuer must obtain a resolution of
the Board of Directors of the Issuer certifying that such Affiliate Transaction
complies with clause (ii) above. In any Affiliate Transaction (or any series of
related Affiliate Transactions which are similar or part of a common plan)
involving an amount or having a fair market value in excess of $5,000,000 which
is not permitted under clause (i) above, the Issuer must obtain a favorable
written opinion as to the fairness to the Issuer from a financial point of view
of such transaction or transactions, as the case may be, from an Independent
Financial Advisor.
47
The foregoing provisions will not apply to (i) any Restricted Payment
that is not prohibited by the provisions described under Section 4.07 above,
(ii) reasonable fees, compensation and equity incentives in the form of Capital
Stock (other than Disqualified Capital Stock) paid to and indemnity provided on
behalf of, officers, directors or employees of the Issuer or any Restricted
Subsidiary of the Issuer as determined in good faith by the Issuer's Board of
Directors or senior management, (iii) any agreement as in effect as of the Issue
Date or any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto so long
as any such amendment or replacement agreement is not more disadvantageous in
any material respect to the Holders than the original agreement as in effect on
the Issue Date or (iv) any standard tax sharing agreement now or hereinafter in
effect among any of Holdings, the Issuer or any of the Guarantors.
SECTION 4.11. Limitation on Creation of Subsidiaries.
The Issuer will not create or acquire, and will not permit any of its
Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary existing as of the Issue Date, (ii) a Restricted
Subsidiary that is acquired or created in connection with the acquisition by the
Issuer of one or more related businesses or assets, or (iii) an Unrestricted
Subsidiary; provided, however, that each Domestic Restricted Subsidiary acquired
or created pursuant to clause (ii) shall have executed a guarantee, satisfactory
in form and substance to the Trustee (and with such documentation relating
thereto, including, without limitation, a supplement or amendment to the
Indenture and opinions of counsel as to the enforceability of such guarantee),
pursuant to which each Domestic Restricted Subsidiary will become a Guarantor.
As of the Issue Date, the Issuer will have no Domestic Restricted Subsidiaries
other than the Guarantors.
SECTION 4.12. Limitation on Certain Asset Sales.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Issuer or such
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such sale or other disposition at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Board of Directors of the Issuer, and evidenced by a Board Resolution);
(ii) not less than 85% of the consideration received by the Issuer or such
applicable Restricted Subsidiary, as the case may be, is in the form of cash or
Cash Equivalents other than in the case where the Issuer is undertaking a
Permitted Asset Swap; and (iii) the Asset Sale Proceeds received by the Issuer
or such Restricted Subsidiary are applied (a) first, to the extent the Issuer or
any such Subsidiary, as the case may be, elects, or is required, to prepay,
repay or purchase Indebtedness under the Senior Credit Facility within 180 days
following the receipt of the Asset Sale Proceeds from any Asset Sale; provided
that any such repayment will result in
48
a permanent reduction of the commitments thereunder in an amount equal to the
principal amount so repaid; (b) second, to the extent of the balance of Asset
Sale Proceeds after application as described above, to the extent the Issuer
elects, to an investment in assets (including Capital Stock or other securities
purchased in connection with the acquisition of Capital Stock or property of
another Person) used or useful in businesses similar or ancillary to the
business of the Issuer or any such Restricted Subsidiary as conducted on the
Issue Date; provided that (1) such investment occurs or the Issuer or any such
Restricted Subsidiary enters into contractual commitments to make such
investment, subject only to customary conditions (other than the obtaining of
financing), within 270 days following receipt of such Asset Sale Proceeds and
(2) Asset Sale Proceeds so contractually committed are so applied within 360
days following the receipt of such Asset Sale Proceeds; and (c) third, if on
such 180th day in the case of clause (iii)(a), 270th day in the case of clause
(iii)(b)(1) or 360th day in the case of clause (iii)(b)(2) with respect to any
Asset Sale, the Available Asset Sale Proceeds exceed $5 million, the Issuer will
apply an amount equal to such Available Asset Sale Proceeds to an offer to
repurchase the Notes, at a purchase price determined as described below (an
"Excess Proceeds Offer"). If an Excess Proceeds Offer is not fully subscribed,
the Issuer may retain the portion of the Available Asset Sale Proceeds not
required to repurchase Notes and such retained portion will not be considered in
the calculation of "Available Asset Sale Proceeds" with respect to any
subsequent offer to purchase Notes.
If the Issuer is required to make an Excess Proceeds Offer, the Issuer
will mail, within 30 days following the date specified in clause (iii)(c) above,
a notice to the holders stating, among other things: (1) that such holders have
the right to require the Issuer to apply the Available Asset Sale Proceeds to
repurchase such Notes at a purchase price in cash equal to (x) 100% of the
Accreted Value thereof, if the applicable purchase date is on or prior to August
1, 2002, or (y) 100% of the principal amount at maturity thereof, plus accrued
and unpaid interest, if any, to the purchase date, if the purchase date is after
August 1, 2002; (2) the purchase date, which will be no earlier than 30 days and
not later than 45 days from the date such notice is mailed; (3) the instructions
that each holder must follow in order to have such Notes purchased; and (4) the
calculations used in determining the amount of Available Asset Sale Proceeds to
be applied to the purchase of such Notes.
In the event of the transfer of substantially all of the property and
assets of the Issuer and its Restricted Subsidiaries as an entirety to a Person
in a transaction permitted under Section 5.01 hereof, the successor Person will
be deemed to have sold the properties and assets of the Issuer and its
Restricted Subsidiaries not so transferred for purposes of this covenant, and
will comply with the provisions of this covenant with respect to such deemed
sale as if it were an Asset Sale.
The Issuer will comply with the requirements of Rule 14e-1
under the Exchange Act and other securities laws and regulations thereunder to
the extent such laws and
49
regulations are applicable in connection with the repurchase of Notes pursuant
to an Excess Proceeds Offer. To the extent that the provisions of any securities
laws or regulations conflict with this Section 4.12, the Issuer will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.12 by virtue thereof.
SECTION 4.13 Limitation on Preferred Stock of Restricted Subsidiaries
The Issuer will not permit any of its Restricted Subsidiaries to issue
any Preferred Stock (except Preferred Stock issued to the Issuer or a Wholly
Owned Subsidiary of the Issuer) or permit any Person (other than the Issuer or a
Wholly Owned Subsidiary of the Issuer) to hold any such Preferred Stock unless
the Issuer or such Restricted Subsidiary would be entitled to incur or assume
Indebtedness in compliance with Section 4.06 in an aggregate principal amount at
maturity equal to the aggregate liquidation value of the Preferred Stock to be
issued.
SECTION 4.14. Limitation on Capital Stock of Restricted Subsidiaries.
The Issuer will not (i) sell, pledge, hypothecate or otherwise convey
or dispose of any Capital Stock of a Restricted Subsidiary of the Issuer or (ii)
permit any of its Restricted Subsidiaries to issue any Capital Stock other than
(A) to the Issuer or a Wholly Owned Subsidiary of the Issuer, (B) issuances or
sales to foreign nationals of shares of Capital Stock of Foreign Restricted
Subsidiaries, or (C) if, immediately after giving effect to such issuance or
sale, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary, so long as in the case of this clause (C) such issuance and sale is
made as a Restricted Payment in compliance with Section 4.07 hereof and any
remaining Investment in such Unrestricted Subsidiary could be made at such time
in compliance with Section 4.08 hereof. The foregoing restrictions will not
apply to either (x) an Asset Sale made in compliance with Section 4.12 hereof or
the issuance of Preferred Stock in compliance with Section 4.13 hereof or (y) a
Permitted Lien.
SECTION 4.15. Limitation on Sale and Lease-Back Transactions.
The Issuer will not, and will not permit any of its Restricted
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, as determined in good faith by
the Board of Directors of the Issuer and evidenced by a Board Resolution and
(ii) the Issuer could incur the Attributable Indebtedness in respect of such
Sale and Lease-Back Transaction in compliance with Section 4.06 above.
50
SECTION 4.16. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Issuer to (a)(i) pay dividends or make any other
distributions to the Issuer or any Restricted Subsidiary of the Issuer (A) on
its Capital Stock or (B) with respect to any other interest or participation in,
or measured by, its profits or (ii) repay any Indebtedness or any other
obligation owed to the Issuer or any Restricted Subsidiary of the Issuer, (b)
make loans or advances or capital contributions to the Issuer or any of its
Restricted Subsidiaries or (c) transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries, except for Permitted Liens and for
such encumbrances or restrictions existing under or by reason of (i)
encumbrances or restrictions existing on the Issue Date to the extent and in the
manner such encumbrances and restrictions are in effect on the Issue Date, (ii)
the Indenture, the Notes and the Guarantees, (iii) applicable law, (iv) any
instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person (including any
Subsidiary of the Person), so acquired, (v) customary non-assignment provisions
in leases or other agreements; (vi) Refinancing Indebtedness; provided that such
restrictions are no more restrictive than those contained in the agreements
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded, (vii) customary restrictions in security agreements or
mortgages securing Indebtedness of the Issuer or a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property subject to such
security agreements and mortgages; (viii) customary restrictions with respect to
a Restricted Subsidiary of the Issuer pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary; or (ix) the Senior Credit
Facility.
SECTION 4.17. Payments for Consent.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of the Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all holders of the Notes which so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
51
SECTION 4.18. Legal Existence.
Subject to Article 5 hereof, the Issuer shall do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Restricted Subsidiary and the
rights (charter and statutory), licenses and franchises of the Issuer and its
Restricted Subsidiaries; provided that the Issuer shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries if the Board of Directors
of the Issuer shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.19. Change of Control Offer.
(a) Upon the occurrence of a Change of Control, the Issuer will be
obligated to make an offer to purchase (the "Change of Control Offer") each
holder's outstanding Notes at a purchase price (the "Change of Control Purchase
Price") equal to (x) 101% of the Accreted Value thereof as of the Change of
Control Payment Date (as defined below), if the Change of Control Payment Date
is on or prior to August 1, 2002, or (y) 101% of the principal amount at
maturity, plus accrued and unpaid interest, if any, to the Change of Control
Payment Date, if the Change of Control Payment Date is after August 1, 2002, in
each case in accordance with the procedures set forth below.
(b) Within 20 days of the occurrence of a Change of Control, the Issuer
will (i) cause a notice of the Change of Control Offer to be sent at least once
to the Dow ▇▇▇▇▇ News Service or similar business news service in the United
States and (ii) send 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:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.19 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 30 days nor later than 45 days from
the date such notice is mailed (the "Change of Control Payment Date"));
(3) that any Note not tendered will continue to accrete Accreted Value
or accrue interest, as the case may be;
52
(4) that, unless the Issuer defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer will cease to accrete Accreted Value or accrue
interest, as the case may be, after the Change of Control Payment Date;
(5) that Holders 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 prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding 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;
(7) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount at maturity to the unpurchased
portion of principal amount at maturity of the Notes surrendered;
(8) any other procedures that a Holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuer will, to the extent
lawful, (i) accept for payment Notes or portions thereof validly tendered and
not withdrawn pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent money sufficient to pay the Change of Control Purchase Price of all
Notes or portions thereof so tendered and (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 Issuer. The Paying Agent will
promptly mail to each holder of Notes so accepted payment in an amount equal to
the Change of Control Purchase Price for such Notes, and the Issuer will execute
and issue, and the Trustee will promptly authenticate and mail to such Holder, a
new Note equal in principal amount at maturity to any unpurchased portion of the
Notes surrendered; provided that each such new Note will be issued in
denominations of $1,000 principal amount at maturity and integral multiples
thereof.
If the Senior Credit Facility is in effect, or any amounts are owing
thereunder or in respect thereof, at the time of occurrence of a Change of
Control, prior to the mailing of the notice to holders described in the
preceding paragraph, but in any event within 20 days following
53
any Change of Control, the Issuer covenants to (i) repay in full all obligations
under or in respect of the Senior Credit Facility or offer to repay in full all
obligations under or in respect of the Senior Credit Facility and repay the
obligations under or in respect of the Senior Credit Facility of each lender who
has accepted such offer or (ii) obtain the requisite consent under the Senior
Credit Facility to permit the repurchase of the Notes as described above. The
Issuer must first comply with the covenant described in the preceding sentence
before being required to purchase Notes in the event of a Change of Control;
provided that the Issuer's failure to comply with the covenant described in the
preceding sentence constitutes an Event of Default under Section 6.01(3) if not
cured within 60 days after the notice of such clause.
If the Issuer or any of its Restricted Subsidiaries has issued any
outstanding (i) Indebtedness that is subordinated in right of payment to the
Notes or (ii) Preferred Stock, and the Issuer or such Restricted Subsidiary is
required to make a change of control offer or to make a distribution with
respect to such subordinated indebtedness or Preferred Stock in the event of a
change of control, the Issuer will not consummate any such offer or distribution
with respect to such subordinated indebtedness or Preferred Stock until such
time as the Issuer will have paid the Change of Control Purchase Price in full
to the holders of Notes that have accepted the Issuer's Change of Control Offer
and will otherwise have consummated the Change of Control Offer made to holders
of the Notes and the Issuer will not issue Indebtedness that is subordinated in
right of payment to the Notes or Preferred Stock with change of control
provisions requiring the payment of such Indebtedness or Preferred Stock prior
to the payment of the Notes in the event of a Change in Control under the
Indenture.
The Issuer will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.19, the Issuer will comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.19
by virtue thereof.
SECTION 4.20. Maintenance of Properties; Insurance; Books and
Records; Compliance with Law.
(a) The Issuer will, and will cause each of its Restricted Subsidiaries
to, at all times cause all 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 necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto, all as in its judgment may be necessary,
so that the business carried on in connection therewith may be properly
conducted at all times unless the failure to so maintain or supply such
properties or to make such repairs,
54
renewals, replacements, betterments and improvements (together with all other
such failures) would not have a material adverse effect on the financial
condition or results of operations of the Issuer and its Subsidiaries, taken as
a whole; provided, however, that nothing in this Section 4.20 shall prohibit the
Issuer or any Subsidiary from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is in the good faith judgment of the Board of Directors of the Issuer
or the Subsidiary concerned or of an officer (or other agent employed by the
Issuer or of its Subsidiaries) of the Issuer or any of its Subsidiaries having
managerial responsibility for such property, as the case may be, desirable in
the conduct of the business of the Issuer or such Subsidiary, as the case may
be, and is not disadvantageous in any material respect to the Holders.
(b) The Issuer will maintain, and will cause to be maintained for each
of its Restricted Subsidiaries, insurance (including appropriate self insurance)
covering such risks as in the good faith judgment of the Issuer are usually and
customarily insured against by corporations similarly situated, in such amounts
as in the good faith judgment of the Issuer are customary for corporations
similarly situated and with such deductibles and by such methods as are
customary for corporations similarly situated unless the failure to maintain
such insurance (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of the Issuer
and its Subsidiaries, taken as a whole.
(c) The Issuer will, and will cause each of its Domestic Restricted
Subsidiaries to, keep proper books of record and account, in all material
respects, in accordance with GAAP consistently applied to the Issuer and its
Domestic Restricted Subsidiaries taken as a whole.
(d) The Issuer will, and will cause each of its Subsidiaries to, comply
with all statutes, laws, ordinances or government rules and regulations to which
they are subject, except for non-compliances that would not have a material
adverse effect on the financial condition or results of operations of the Issuer
and its Subsidiaries taken as a whole.
SECTION 4.21. Limitation on Conduct of Business.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business which is not the same, similar or
related to the business in which the Issuer and its Restricted Subsidiaries are
engaged on the Issue Date.
55
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Consolidation, Amalgamation, Merger
and Sale of Assets.
(a) The Issuer will not sell, assign, transfer, lease, convey or
otherwise dispose of through a consolidation, amalgamation, merger or other
transaction all or substantially all of its assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions) to, any Person unless: (i) the Issuer shall be the continuing
Person, or the Person (if other than the Issuer) formed by such consolidation or
into which the Issuer is merged or to which the properties and assets of the
Issuer, are sold, assigned, transferred, leased, conveyed or otherwise disposed
of is a corporation or limited liability company organized and existing under
the laws of the United States or any State thereof or the District of Columbia
and expressly assumes, by a supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all of the obligations of the
Issuer under this Indenture and the Notes; and the obligations hereunder and
thereunder remain in full force and effect; (ii) immediately before and
immediately after giving effect to such transaction, no Default or Event of
Default will have occurred and be continuing; (iii) immediately after giving
effect to such transaction or series of transactions on a pro forma basis, the
Consolidated Net Worth of the Issuer or such Person, as the case may be, is at
least equal to the Consolidated Net Worth of the Issuer immediately before such
transaction or series of transactions; and (iv) immediately after giving effect
to such transaction or series of transactions on a pro forma basis, the Issuer
or such Person, as the case may be, could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06 above;
provided, that a Person that is a Guarantor may merge into or amalgamate with
the Issuer or another Person that is a Guarantor and the Issuer and Holdings may
merge into or amalgamate with each other without complying with this clause
(iv).
(b) In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Issuer will deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an opinion of counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this Section 5.01 and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Issuer, the Capital Stock of which
56
constitutes all or substantially all of the properties and assets of the Issuer,
shall be deemed to be the transfer of all or substantially all of the properties
and assets of the Issuer.
SECTION 5.02. Successor Person Substituted.
Upon any consolidation amalgamation or merger, or any transfer of all
or substantially all of the assets of the Issuer in accordance with Section 5.01
above, the successor corporation formed by such consolidation or amalgamation or
into which the 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, the
Issuer under this Indenture with the same effect as if such successor
corporation had been named as the Issuer herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
The following events are "Events of Default":
(1) default in payment of any Accreted Value, principal of, or premium,
if any, on the Notes whether at maturity, upon redemption or otherwise;
(2) default for 30 days in payment of any interest on the Notes;
(3) default by the Issuer or any Restricted Subsidiary in the
observation or performance of the covenants set forth in Sections 4.19 and
5.01 after written notice from the Trustee or the holders of not less than
25% in aggregate principal amount at maturity of the Notes then
outstanding;
(4) default by the Issuer or any Restricted Subsidiary of the Issuer in
the observance or performance of any other covenant in the Notes or this
Indenture for 30 days after written notice from the Trustee or the holders
of not less than 25% in aggregate principal amount at maturity of the Notes
then outstanding;
(5) default in the payment at final maturity of an aggregate amount of
$3,500,000 or more with respect to any Indebtedness of the Issuer or any
Restricted Subsidiary thereof, or the acceleration of any such Indebtedness
aggregating $3,500,000 or more which default is not cured, waived or
postponed pursuant to an agreement with the
57
holders of such Indebtedness within 60 days after written notice from the
Trustee or any Noteholder pursuant to Section 11.02 of the Indenture, or
such acceleration is not rescinded or annulled within 30 days after written
notice from the Trustee or any Noteholder as provided in Section 11.02 of
the Indenture;
(6) any final judgment or judgments (not covered by insurance) which
can no longer be appealed for the payment of money in excess of $3,500,000
is rendered against the Issuer or any Restricted Subsidiary thereof, and is
not discharged for any period of 60 consecutive days during which a stay of
enforcement is not in effect;
(7) 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); and
(8) the Issuer or any Significant Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due; or
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Issuer or any Significant
Restricted Subsidiary or for all or substantially all of the property
of the Issuer or any Restricted Subsidiary, or
58
(C) orders the liquidation of the Issuer or any Significant
Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
The Trustee may withhold notice to the Holders of the Notes of any
Default (except in payment of Accreted Value, principal or premium, if any, or
interest on the Notes) if the Trustee considers it to be in the best interest of
the Holders of the Notes to do so. The Trustee shall not be charged with
knowledge of any Default, Event of Default, Change of Control or Asset Sale or
Default in payment of Additional Interest unless written notice thereof shall
have been given to a Responsible Officer at the corporate trust office of the
Trustee by the Issuer or any Holder.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default described in
Section 6.01(8) or (9)) shall have occurred and be continuing, then the Trustee
or the holders of not less than 25% in aggregate principal amount at maturity of
the Notes then outstanding by written notice to the Issuer and the Trustee may
declare to be immediately due and payable an amount equal to (x) the Accreted
Value of the Notes outstanding on the date of acceleration, if such declaration
is made on or prior to August 1, 2002 or (y) the entire principal amount at
maturity of the Notes outstanding on the date of acceleration if such
declaration is made after August 1, 2002, and the same will become immediately
due and payable; provided that after such acceleration but before a judgment or
decree based on acceleration is obtained by the Trustee, the holders of a
majority in aggregate principal amount at maturity of outstanding Notes may,
rescind and annul such acceleration if (i) all Events of Default, other than
nonpayment of Accreted Value, principal, premium, if any, or interest that has
become due solely because of the acceleration, have been cured or waived as
provided in this Indenture, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (iii) if the Issuer has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances and (iv)
in the event of the cure or waiver of an Event of Default of the type described
in clause (6) of Section 6.01 hereof, the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto. In case an Event of Default specified in
Section 6.01 (8) and (9), the Accreted Value (if such Event of Default occurs on
or prior to
59
August 1, 2002) or principal and all premium, if any, and interest (if such
Event of Default occurs after August 1, 2002) with respect to all of the Notes
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the holders of the Notes.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
Accreted Value, principal of, or premium, if any, and interest on the Notes or
to enforce the performance of any provision of the Notes or this Indenture and
may take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law. Any costs associated with actions taken by the Trustee
under this Section 6.03 shall be reimbursed to the Trustee by the Issuer.
SECTION 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in principal amount at maturity of the Notes then outstanding have the
right to waive any existing Default or Event of Default or compliance with any
provision of this Indenture or the Notes. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount at maturity of the Notes
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with any law or this Indenture or
that the Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction or if the Trustee, determines that
the action so directed may not lawfully be taken or may involve it in personal
liability; provided
60
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount at
maturity of the Notes then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer and if requested provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer, and, if requested, provision of,
indemnity; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of Accreted Value or principal of, or
premium, if any, and interest on a Note (including Additional Interest) on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of Accreted Value or principal,
premium or interest specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuer or the Guarantors (or any other obligor on
the Notes) for the whole amount of unpaid Accreted
61
Value or principal and accrued interest remaining unpaid, together with interest
on overdue Accreted Value or principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate set forth in the Notes to the extent lawful, and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof) and the Noteholders allowed in any
judicial proceedings relative to the Issuer or the Guarantors (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Noteholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
Accreted Value or principal, premium, if any, and interest (including
Additional Interest, if any) ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes; and
62
THIRD: to the Issuer or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount at maturity of the Notes then outstanding.
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 Issuer, the Guarantors, 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 SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer of
the Trustee 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
circumstances in the conduct of such person's own affairs.
63
(b) Except during the continuance of an Event of Default actually known
to a Responsible Officer of the Trustee:
(1) The Trustee need perform only those duties that 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.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture but, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform on their face to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by
it pursuant to Sections 6.02 and 6.05 of this Indenture.
(4) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its rights, powers or duties or to take or omit to
take any action under this Indenture or take any action at the request or
direction of Holders if it shall have reasonable grounds for believing that
repayment of such funds is not assured to it or it does not receive an
indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which may be incurred by it in connection
with such performance.
(d) Whether or not therein expressly so provided, paragraphs (a), (b),
(c) and (e) of this Section 7.01 shall govern every provision of this Indenture
that in any way relates to the Trustee.
64
(e) 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, expense or fee.
(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 Issuer. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by the law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 11.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed by
it with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers; provided that the Trustee's conduct does not
constitute gross negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Issuer or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
65
SECTION 7.04. 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 or any Guarantee, it
shall not be accountable for the Issuer's or any Guarantor's use of the proceeds
from the sale of Notes or any money paid to the Issuer or any Guaranty pursuant
to the terms of this Indenture and it shall not be responsible for any statement
in the Notes, Guarantee or this Indenture other than its certificate of
authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is actually known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the Accreted Value or the principal of, or premium, if any, or interest on any
Note or a default in the observance or performance of any of the obligations of
the Issuer under Article Five, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determine(s) that
withholding the notice is in the best interest of the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after July 27 of any
year, commencing July 27, 1999 the Trustee shall mail to each Noteholder a brief
report dated as of such July 27 that complies with TIA ss. 313(a). The Trustee
also shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA ss. 313(c) and TIA ss. 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail to
all Holders of Notes, as the names and addresses of such Holders appear on the
Registrar's books.
A copy of each report at the time of its mailing to Noteholders shall
be filed with the Commission and each stock exchange on which the Notes are
listed. The Issuer shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Issuer and the Guarantors shall pay to the Trustee and Agents from
time to time such compensation for its services hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) which shall be agreed from time to time by the
Issuer and Trustee in writing. The Issuer and the Guarantors shall reimburse the
Trustee and Agents upon request for all reasonable disbursements, expenses and
advances incurred or made by it in connection with its duties under this
66
Indenture, including the reasonable compensation, disbursements and expenses of
the Trustee's agents and counsel.
The Issuer and the Guarantors shall indemnify each of the Trustee and
any predecessor Trustee for, and hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including without limitation taxes
(other than taxes based on the income of the Trustee or such Agent) and
reasonable attorneys' fees and expenses incurred by each of them arising out of
or in connection with the acceptance, administration or performance of its
duties under this Indenture including the reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees) of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder (including, without limitation, settlement
costs). The Trustee or Agent shall notify the Issuer and the Guarantors in
writing promptly of any claim asserted against the Trustee or Agent for which it
may seek indemnity. However, the failure by the Trustee or Agent to so notify
the Issuer and the Guarantors shall not relieve the Issuer and Guarantors of
their obligations hereunder except to the extent the Issuer and the Guarantors
are prejudiced thereby.
Notwithstanding the foregoing, the Issuer and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by the Trustee through its negligence or bad faith. To secure
the payment obligations of the Issuer and the Guarantors in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee except such money or property held in trust to pay
principal of and interest on particular Notes. The obligations of the Issuer and
the Guarantors under this Section 7.07 to compensate and indemnify the Trustee,
Agents and each predecessor Trustee and to pay or reimburse the Trustee, Agents
and each predecessor Trustee for expenses, disbursements and advances shall be
joint and several liabilities of the Issuer and each of the Guarantors and shall
survive the resignation or removal of the Trustee and the satisfaction,
discharge or other termination of this Indenture, including any termination or
rejection hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include any
trustee appointed pursuant to Article 7.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Issuer and the Guarantors in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the
67
Trustee by notifying the Issuer and the removed Trustee in writing and may
appoint a successor Trustee with the Issuer's written consent, which consent
shall not be unreasonably withheld. The Issuer may remove the Trustee at its
election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall notify the holders of such
event and promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount at
maturity of the Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of a majority in principal amount at maturity of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Issuer obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation,
subject to Section 7.10
68
hereof, the successor corporation without any further act shall be the successor
Trustee; provided such entity shall be otherwise qualified and eligible under
this Article 7.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $100,000,000 as set forth in the most recent applicable published
annual report of condition. The Trustee shall comply with TIA ss. 310(b),
including the provision in ss. 310(b)(1).
SECTION 7.11. Preferential Collection of Claims Against Issuer.
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.
SECTION 7.12. Paying Agents.
The Issuer shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of Accreted
Value or principal of, or premium, if any, or interest on, the Notes (whether
such sums have been paid to it by the Issuer or by any obligor on the Notes) in
trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Issuer (or by any obligor on the Notes)
in the payment of any installment of Accreted Value or principal of,
premium, if any, or interest on, the Notes when the same shall be due and
payable.
69
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.
The Issuer and the Guarantors, when authorized by a Board Resolution of
each of them, and the Trustee may amend, waive or supplement this Indenture or
the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to comply with any requirements of the Commission under the TIA;
(4) to cure any ambiguity, defect or inconsistency;
(5) in reliance on an Opinion of Counsel, to make any other change that
does not adversely affect the rights of any Noteholders hereunder;
(6) to add a Guarantor; or
(7) 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 Noteholder.
The Trustee is hereby authorized to join with the Issuer and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
SECTION 8.02. With Consent of Holders.
The Issuer and the Guarantors (each when authorized by a Board
Resolution) may direct the Trustee to modify or supplement this Indenture or the
Notes with the written consent of the Holders of at least a majority in
aggregate principal amount at maturity of the outstanding Notes. The Holders of
not less than a majority in aggregate principal amount at maturity of the
outstanding Notes may waive compliance in a particular instance by the Issuer
70
or Guarantors with any provision of this Indenture or the Notes. Subject to
Section 8.04, without the consent of each Noteholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver to this Indenture;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Note;
(3) reduce the Accreted Value, principal amount at maturity of or
premium on or change the stated maturity of any Note or change the date on
which any Notes may be subject to redemption or repurchase or reduce the
redemption or repurchase price therefor;
(4) make any Note payable in money other than that stated in the Note
or change the place of payment from New York, New York;
(5) waive a default on the payment of Accreted Value, the principal
amount at maturity of, interest on, or redemption payment with respect to
any Note;
(6) make any change in provisions of this Indenture protecting the
right of each holder of Notes to receive payment of Accreted Value or
principal of and interest on such Note on or after the due date thereof or
to bring suit to enforce such payment, or permitting holders of a majority
in principal amount at maturity of Notes to waive Defaults or Events of
Default; or
(7) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or any Guarantee in a manner
which adversely affects the holders of Notes.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Issuer shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Issuer, accompanied by a Board
Resolution of the Issuer and each Guarantor authorizing the execution of any
such supplemental indenture, and upon the receipt by the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Noteholders as
aforesaid and upon receipt by the Trustee of the documents described in Section
8.06 hereof, the Trustee shall join with the Issuer and the Guarantors in the
execution of such supplemental indenture unless such supplemental indenture
affects the
71
Trustee's own rights, duties or immunities under this Indenture, in which case
the Trustee may, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
written notice of revocation before the date the amendment, supplement, waiver
or other action becomes effective.
The Issuer 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
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (7) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
SECTION 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note, the
Trustee (in accordance with the specific written direction of the Issuer) shall
request the
72
Holder of the Note (in accordance with the specific written direction of the
Issuer) to deliver it to the Trustee. In such case, the Trustee shall place an
appropriate notation on the Note about the changed terms and return it to the
Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer in
exchange for the Note shall issue, the Guarantors shall endorse, and the Trustee
shall 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 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating, in addition to
the matters required by Section 11.04, that such amendment, supplement or waiver
is authorized or permitted by this Indenture and is a legal, valid and binding
obligation of the Issuer and Guarantors, enforceable against the Issuer and
Guarantors in accordance with its terms (subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture.
The Issuer and the Guarantors may terminate their obligations under the
Notes, the Guarantees and this Indenture, except the obligations referred to in
the last paragraph of this Section 9.01, if there shall have been cancelled by
the Trustee or delivered to the Trustee for cancellation all Notes theretofore
authenticated and delivered (other than any Notes that are asserted to have been
destroyed, lost or stolen and that shall have been replaced as provided in
Section 2.08 hereof) and the Issuer has paid all sums payable by them hereunder
or deposited all required sums with the Trustee.
After such delivery, the Trustee upon Issuer Request shall acknowledge
in writing the discharge of the Issuer's and the Guarantors' obligations under
the Notes, the Guarantees and this Indenture except for those surviving
obligations specified below.
73
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer in Sections 7.07, 9.05 and 9.06 hereof shall survive.
SECTION 9.02. Legal Defeasance.
The Issuer may at its option, by Board Resolution of the Issuer, be
discharged from its obligations with respect to the Notes and the Guarantors
discharged from their obligations under the Guarantees on the date the
conditions set forth in Section 9.04 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Issuer
shall be deemed to have paid and discharged the entire indebtedness represented
by the Notes and to have satisfied all its other obligations under such Notes
and this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Issuer, shall, subject to Section 9.06 hereof, execute
instruments in form and substance reasonably satisfactory to the Trustee and
Issuer acknowledging the same), except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Notes to receive solely from the trust funds described in Section
9.04 hereof and as more fully set forth in such Section, payments in respect of
the Accreted Value or principal of, premium, if any, and interest on such Notes
when such payments are due, (B) the Issuer's obligations with respect to such
Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, and 4.20 hereof,
(C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.07 hereof) and (D) this Article 9. Subject to compliance with this Article 9,
the Issuer may exercise its option under this Section 9.02 with respect to the
Notes notwithstanding the prior exercise of its option under Section 9.03 below
with respect to the Notes.
SECTION 9.03. Covenant Defeasance.
At the option of the Issuer, pursuant to a Board Resolution of the
Issuer, the Issuer and the Guarantors shall be released from their respective
obligations under Sections 4.02 through 4.19 and 4.21, inclusive, and clauses
(a)(ii), (iii) and (iv) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 9.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Issuer and the Guarantors may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
74
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02 or
Section 9.03 hereof to the outstanding Notes:
(1) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) pursuant to an irrevocable trust and
security agreement in form and substance satisfactory to the Trustee as
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Notes, (A) United States dollars and/or (B)
non-callable U.S. Government Obligations which through the scheduled
payment of principal at maturity and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the Accreted Value of,
premium, if any, and accrued interest on the outstanding Notes at the
maturity date of such Accreted Value, premium, if any, or interest, or on
dates for payment and redemption of such Accreted Value, premium, if any,
and interest in accordance with the terms of this Indenture and of the
Notes;
(2) no Event of Default or Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit, or shall have
occurred and be continuing at any time during the period ending on the 91st
day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any
Bankruptcy Law applicable to the Issuer in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Issuer;
(4) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under this Indenture or any
other material agreement or instrument to which the Issuer or any of its
Subsidiaries is a party or by which the Issuer or any of its Subsidiaries
is bound;
75
(5) the Issuer shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment Issuer under the Investment Issuer Act of 1940, as
amended;
(6) in the case of an election under Section 9.02 above, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change
in any applicable Federal income tax law with the effect that, and such
opinion shall confirm that, the Holders of the outstanding Notes or Persons
in their positions will not recognize income, gain or loss for United
States Federal income tax purposes solely as a result of such Legal
Defeasance and will be subject to United States Federal income tax on the
same amounts, in the same manner, including as a result of prepayment, and
at the same times as would have been the case if such deposit, Legal
Defeasance and discharge had not occurred;
(7) in the case of an election under Section 9.03 hereof, the Issuer
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 United States Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to United States Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(8) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof (as
the case may be) have been complied with;
(9) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Issuer with the intent of preferring the Holders of the Notes over any
other creditors of the Issuer or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Issuer or others;
(10) the Issuer shall have delivered to the Trustee on Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable Bankruptcy
Law; and
76
(11) the Issuer shall have paid or duly provided for payment under
terms mutually satisfactory to the Issuer and the Trustee all amounts then
due to the Trustee pursuant to Section 7.07 hereof.
SECTION 9.05. Deposited Money and U.S. Government Obligations To
Be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer and the Guarantors shall (on a joint and several basis) pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuer from time to time upon a Issuer Request any
money or U.S. Government Obligations held by it as provided in Section 9.04
hereof which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided that if the Issuer
or the Guarantors have made any payment of principal of, premium, if any, or
accrued interest on any Notes because of the reinstatement of their obligations,
the Issuer or the Guarantors, as the case may
77
be, shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
SECTION 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Issuer, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.04 hereof, to the
Issuer upon an Issuer Request (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Issuer or the Guarantors in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Issuer (or, if
appropriate, the Guarantors) upon a Issuer Request, or if such moneys are then
held by the Issuer or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Issuer and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
that the Trustee or any such Paying Agent, before being required to make any
such repayment, may, at the expense of the Issuer and the Guarantors, either
mail to each Noteholder affected, at the address shown in the register of the
Notes maintained by the Registrar pursuant to Section 2.04 hereof, or cause to
be published once a week for two successive weeks, in a newspaper published in
the English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Issuer. After payment to the
Issuer or the Guarantors or the release of any money held in trust by the Issuer
or any Guarantors, as the case may be, Noteholders entitled to the money must
look only to the Issuer and the Guarantors for payment as general creditors
unless applicable abandoned property law designates another Person.
78
Section 9.09. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
Notes when:
(1) either (a) all the Notes, theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid
and Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust) have been delivered to the Trustee
for cancellation or (b) all Notes not theretofore delivered to the Trustee
for cancellation have become due and payable and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for Accreted Value
or principal amount of maturity of, premium, if any, and interest on the
Notes, as the case may be, to the date of deposit together with irrevocable
instructions from the Issuer directing the Trustee to apply such funds to
the payment thereof at maturity or redemption, as the case may be;
(2) the Issuer has paid all other sums payable under this Indenture by
the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have
been complied with.
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee.
Subject to the provisions of this Article 10 each Guarantor hereby
jointly and severally, fully and unconditionally guarantees, on a senior
unsecured basis, to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Issuer or
any other Guarantors to the Holders or the Trustee hereunder or thereunder,
that: (a) the Accreted Value or principal of, interest and Additional Interest,
if any, on and with respect to the Notes will be duly and punctually paid in
full when due, whether at maturity, by acceleration or otherwise, and interest
on the overdue Accreted Value or principal and (to the extent
79
permitted by law) interest or Additional Interest, if any, on or Assessed Damage
Amounts, if any, with respect to the Notes and all other obligations of the
Issuer or the Guarantors to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.7 hereof) will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, 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. Failing payment when due of
any amount so guaranteed, or failing performance of any other obligation of the
Issuer to the Holders, for whatever reason, each Guarantor will be obligated to
pay, or to perform or cause the performance of, the same immediately. An Event
of Default under this Indenture or the Notes shall constitute an event of
default under this Guarantee, and shall entitle the Holders of Notes or the
Trustee to accelerate the obligations of the Guarantors hereunder in the same
manner and to the same extent as the obligations of the Issuer.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Issuer, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand for payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice and all demands whatsoever
and covenants that its Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and this
Guarantee. This Guarantee is a guarantee of payment and not of collection. If
any Holder or the Trustee is required by any court or otherwise to return to the
Issuer or to any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Issuer or such Guarantor, any amount
paid by the Issuer or such Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject
to this Article 10, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article 6 hereof,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Guarantee.
80
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation
or reorganization, should the Issuer 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 Issuer'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, employee or incorporator, past,
present or future, or 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, employee or incorporator.
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 net assets of each Guarantor, determined in accordance with
GAAP.
SECTION 10.02. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form included in Exhibit G hereto, shall be endorsed on each Note authenticated
and delivered by the Trustee and such Guarantee shall be executed by either
manual or facsimile signature of an Officer or an Officer of a general partner,
as the case may be, of each Guarantor. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
81
If an officer of a Guarantor whose signature is on this Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticate the
Note on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 10.03. Additional Guarantors.
The Issuer covenants and agrees that it shall cause any Person which
becomes a Restricted Subsidiary (other than a Foreign Restricted Subsidiary) to
execute a supplemental indenture and any other documentation requested by the
Trustee satisfactory in form and substance to the Trustee pursuant to which such
Restricted Subsidiary shall guarantee the obligations of the Issuer under the
Notes and this Indenture in accordance with this Article 10 with the same effect
and to the same extent as if such Person had been named herein as a Guarantor.
SECTION 10.04. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all of its assets or the Issuer and its
Restricted Subsidiaries have sold all of the Capital Stock of the Guarantor
owned by them, in each case in a transaction in compliance with the terms
of this Indenture (including Sections 4.12, 4.14 and 5.01); provided that
the Asset Sale Proceeds of such sale are applied in accordance with this
Indenture;
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Issuer or another
Guarantor in a transaction in compliance with the terms of this Indenture
(including Section 5.01); or
(iii) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of this Indenture (including Section 4.07);
and in each such case, the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
82
The Trustee shall execute any documents reasonably requested by the
Issuer or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Notes and under this Article
10.
SECTION 10.05. Waiver of Subrogation.
So long as the Guarantees remain outstanding, each Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Issuer that arise from the existence, payment, performance
or enforcement of such Guarantor's obligations under the Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Issuer, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or Note on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the preceding sentence
and the Notes shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders of the Notes, and shall forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 10.06 is knowingly made in contemplation of
such benefits.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 11.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
83
If to the Issuer or any Guarantor:
Radio Unica Corp.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
84
85
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Issuer, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication to a Noteholder is mailed in the manner provided above,
it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03. 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
Issuer, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any Guarantor to the
Trustee to take any action under this Indenture, the Issuer or such Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
86
SECTION 11.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance by or on behalf
of the Issuer or any Guarantor with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has made
such examination or investigation as is necessary to enable it or him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with, provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 11.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the State of Delaware. 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 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
87
SECTION 11.09. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.
By the execution and delivery of this Indenture, each of the Issuer and
each Guarantor (i) acknowledges that it has, by separate written instrument,
designated and appointed CT Corporation as its authorized agent upon which
process may be served in any suit, action or proceeding arising out of or
relating to the Notes or this Indenture that may be instituted in any Federal or
State court in the State of New York, Borough of Manhattan, or brought under
Federal or State securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder), and acknowledges
that CT Corporation has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
agrees that service of process upon CT Corporation and written notice of said
service to it (mailed or delivered to its Executive Director at its principal
office as specified in Section 11.2), shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Issuer and each
Guarantor further agree to take any and all action, including the execution and
filing of any and all such documents and instruments as may be necessary to
continue such designation and appointment of CT Corporation, in full force and
effect so long as this Indenture shall be in full force and effect; provided
that the Issuer may and shall (to the extent CT Corporation ceases to be able to
be served on the basis contemplated herein), by written notice to the Trustee,
designate such additional or alternative agents for service of process under
this Section 11.09 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either (x)
counsel for the Issuer or (y) a corporate service company which acts as agent
for service of process for other Persons in the ordinary course of its business
and (iii) agrees to act as agent for service of process in accordance with this
Section 11.7. Such notice shall identify the name of such agent for process and
the address of such agent for process in the Borough of Manhattan, The City of
New York, State of New York. Upon the request of any Holder, the Trustee shall
deliver such information to such Holder. Notwithstanding the foregoing, there
shall, at all times, be at least one agent for service of process for the Issuer
and the Guarantors, if any, appointed and acting in accordance with this Section
11.09.
To the extent that the Issuer or any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, the Issuer and each Guarantor hereby irrevocably waives such immunity
in respect of its obligations under this Indenture and the Securities, to the
extent permitted by law.
88
SECTION 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Issuer or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 11.11. No Recourse Against Others.
No recourse for the payment of the principal of or premium, if any, or
interest, including Additional Interest, on any of the Notes, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer or any Guarantor in this
Indenture or in any supplemental indenture, or in any of the Notes, or because
of the creation of any Indebtedness represented thereby, shall be had against
any stockholder, officer, director or employee, as such, past, present or
future, of the Issuer or of any successor corporation or against the property or
assets of any such stockholder, officer, employee or director, either directly
or through the Issuer or any Guarantor, or any successor corporation thereof,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the Notes are solely obligations of the
Issuer and the Guarantors, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, any stockholder, officer, employee or
director of the Issuer or any Guarantor, or any successor corporation thereof,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or the Notes or implied therefrom, and that any and all such personal liability
of, and any and all claims against every stockholder, officer, employee and
director, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Notes. It is understood that this limitation on recourse is made expressly for
the benefit of any such shareholder, employee, officer or director and may be
enforced by any of them.
SECTION 11.12. Successors.
All agreements of the Issuer and the Guarantors in this Indenture and
the Notes shall bind their respective successors. All agreements of the Trustee,
any additional trustee and any Paying Agents in this Indenture shall bind its or
their respective successors.
SECTION 11.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
89
SECTION 11.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15. Separability.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
RADIO UNICA CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF SAN FRANCISCO INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
ORO SPANISH BROADCASTING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF SAN FRANCISCO
LICENSE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI LICENSE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES LICENSE
CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA OF SAN ANTONIO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
RADIO UNICA SALES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman and Chief
Executive Officer
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signer
Exhibit A
Form of New Note
RADIO UNICA CORP.
11 3/4% SENIOR DISCOUNT NOTE DUE 2006
This Note is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of principal
amount at maturity of this Note, the issue price is $632.56 and the amount of
original issue discount is $367.44. The issue date of this Security is July 27,
1998 and the yield to maturity is 11 3/4%.
Number CUSIP
Radio Unica Corp., a Delaware Corporation (the "Issuer," which term
includes any successor corporation), for value received promises to pay to or
registered assigns the principal sum of , on August 1, 2006.
Interest Payment Dates: August 1 and February 1, commencing August 1,
2002
Record Dates: July 15 and January 15
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, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
RADIO UNICA CORPORATION
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Certificate of Authentication
This is one of the 11 3/4% Senior Discount Notes due 2006 referred to
in the within-mentioned Indenture.
Dated: July 27, 1998
WILMINGTON TRUST COMPANY, as Trustee
By:
------------------------------------------
Authorized Signatory
A-2
RADIO UNICA CORPORATION
11 3/4% SENIOR DISCOUNT NOTE DUE 2006
1. Interest. RADIO UNICA CORPORATION, a Delaware corporation (the
"Issuer"), promises to pay cash interest on the principal amount of this Note
semiannually on August 1 and February 1 of each year (each an "Interest Payment
Date"), commencing on August 1, 2002, at the rate of 11 3/4% per annum. The
Accreted Value of the Notes shall increase in the manner provided in the
Indenture. Interest and Accreted Value will be computed on the basis of a
360-day year of twelve 30-day months. Cash interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no cash
interest has been paid, from August 1, 2002.
The principal of this Note shall not bear or accrue cash interest until
August 1, 2002 except in the case of a default in payment of Accreted Value or
principal and/or premium, if any, upon acceleration, redemption or purchase and,
in such case, the overdue Accreted Value or principal and any overdue premium,
as applicable, shall bear cash interest at the rate of 11 3/4%per annum
(compounded semiannually on each August 1 and February 1) (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or duly provided for. To the extent, but
only to the extent, interest on amounts in default constituting original issue
discount prior to August 1, 2002 is not permitted by law, original issue
discount shall continue to accrete until paid or duly provided for. On or after
August 1, 2002, interest on overdue principal and premium, if any, and, to the
extent permitted by law, on overdue installments of interest will accrue, until
the principal and premium, if any, and overdue installments of interest are paid
or duly provided for, at the rate of 11 3/4% per annum.
2. Method of Payment. The Issuer will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on July 15 or January 15 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Issuer will pay Accreted Value or principal,
premium, and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided
however, that the Issuers may pay Accreted Value or principal, premium, if any,
and interest by check payable in such money. The Issuer may mail an interest
check to the Holder's registered address.
3. Paying Agent and Registrar. Initially, Wilmington Trust Company, a
Delaware banking corporation (the "Trustee") will act as a Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar without notice.
Neither the Issuer nor any of its Affiliates may act as Paying Agent or
Registrar.
A-3
4. Indenture. The Issuer issued the Notes under an Indenture dated as
of July 27, 1998 (the "Indenture") among the Issuer, the Guarantors (as defined
in the Indenture) and the Trustee. This is one of an issue of Notes of the
Issuer 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 obligations of the Issuer
limited in aggregate principal amount at maturity to $158,088,000.
5. Optional Redemption. The Issuer, at its option, may redeem the
Notes, in whole at any time or in part, from time to time at any time on or
after August 1, 2002 upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount at maturity
thereof), set forth below, together, in each case, with accrued and unpaid
interest to the Redemption Date, if redeemed during the twelve-month period
beginning on August 1 of each year listed below:
Year Redemption Price
---- ----------------
2002................................................................. 105.875%
2003................................................................. 102.938%
2004 and thereafter.................................................. 100.000%
Notwithstanding the foregoing, prior to August 1, 2001 the Issuer may
redeem up to 35% of the aggregate principal amount at maturity of Notes at any
time and from time to time out of the Net Proceeds of one or more Equity
Offerings prior to August 1, 2001 at a Redemption Price equal to 111.75% of the
Accreted Value thereof; provided that at least $65.0 million of the aggregate
initial Accreted Value of Notes originally issued remains outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 90 days following the closing of any such Equity
Offering.
In the event of a redemption of fewer than all of the Notes, the
Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which
such Notes are listed, or if such Notes are not then listed on a national
securities exchange, on a pro rata basis, by lot or in such other manner as the
Trustee shall deem fair and equitable. 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. On and after any Redemption
Date, Accreted Value will cease to accrete and interest will cease to accrue on
the Notes or portions thereof called for redemption unless the Issuer shall fail
to redeem any such Note.
A-4
6. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at his registered address. On and after the Redemption
Date, unless the Issuer defaults in making the redemption payment, Accreted
Value will cease to accrete or interest will cease to accrue, as the case may
be, on Notes or portions thereof called for redemption.
7. Offers to Purchase. The Indenture provides that upon the occurrence
of a Change of Control or an Asset Sale and subject to further limitations
contained therein, the Issuer shall make an offer to purchase outstanding Notes
in accordance with the procedures set forth in the Indenture.
8. Registration Rights. Pursuant to a Registration Rights Agreement
among the Issuer, the Guarantors, and CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and Bear ▇▇▇▇▇▇▇ &
Co. Inc., as Initial Purchasers of the Notes, the Issuer will be obligated to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for notes of a separate series issued under
the Indenture (or a trust indenture substantially identical to the Indenture in
accordance with the terms of the Registration Rights Agreement) which have been
registered under the Securities Act, in like principal amount and having
substantially identical terms as the Notes. The Holders shall be entitled to
receive certain additional interest payments in the event such exchange offer is
not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 principal amount at maturity and
integral multiples of $1,000 principal amount at maturity. 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 register the transfer of or exchange any
Notes or portion of a Note selected for redemption, or register the transfer of
or exchange any Notes for a period of 15 days before a mailing of notice of
redemption.
10. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee will pay the money back to the
Issuer at its written request. After that, Holders entitled to the money must
look to the Issuer for payment as general creditors unless an "abandoned
property" law designates another Person.
12. Amendment, Supplement, Waiver, Etc. The Issuer, the Guarantors and
the Trustee (if a party thereto) may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes,
A-5
including, among other things, curing ambiguities, defects or inconsistencies,
maintaining the qualification of the Indenture under the Trust Indenture Act of
1939, as amended, and making any change that does not materially and adversely
affect the rights of any Holder. Other amendments and modifications of the
Indenture or the Notes may be made by the Issuer, the Guarantors and the Trustee
with the consent of the Holders of not less than a majority of the aggregate
principal amount at maturity of the outstanding Notes, subject to certain
exceptions requiring the consent of the Holders of the particular Notes to be
affected.
13. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of their Capital
Stock or certain Indebtedness, repurchase stock to make certain Investments,
create or incur liens, enter into transactions with Affiliates, issue stock of
Subsidiaries of the Issuer, enter into sale and leaseback transactions and on
the ability of the Issuer or any Guarantor to merge or consolidate with any
other Person or transfer all or substantially all of the Issuer's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to Section 4.04 of the Indenture, the Issuer must annually report to
the Trustee on compliance with such limitations.
14. 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 Five of the Indenture, the
predecessor corporation will, except as provided in Article Five, be released
from those obligations.
15. 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 6.01(8) or (9) of
the Indenture with respect to the Issuer or any of its Significant Restricted
Subsidiaries) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in aggregate principal amount at maturity of the then outstanding
Notes may, by written notice to the Trustee and the Issuer, and the Trustee upon
the request of the Holders of not less than 25% in aggregate principal amount at
maturity of the outstanding Notes shall, declare all Accreted Value (if such
declaration is made on or prior to August 1, 2002) or principal of and accrued
interest (if such declaration is made after August 1, 2002) on all Notes to be
immediately due and payable and such amounts shall become immediately due and
payable. If an Event of Default specified in Section 6.01(8) or (9) of the
Indenture occurs with respect to the Issuer or any of its Significant Restricted
Subsidiaries, the Accreted Value or principal amount at maturity of and interest
on, as applicable, all 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, the Notes or the Guarantors
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount at maturity of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders
A-6
notice of any continuing default (except a default in payment of Accreted Value
or principal, premium, if any, or interest or a default in the observance or
performance of any of the obligations of the Issuer under Article Five of the
Indenture) if it determines that withholding notice is in their best interests.
16. Trustee Dealings with Issuer. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its
Affiliates, as if it were not Trustee.
17. No Recourse Against Others. No director, officer, employee
incorporator or stockholder of the Issuer or any Guarantor shall have any
liability for any obligations of the Issuer or the Guarantors under the Notes,
the Indenture or the Guarantees or for a claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
18. Discharge. The Issuer's obligations pursuant to the Indenture will
be discharged, except for obligations pursuant to certain sections thereof,
subject to the terms of the Indenture, upon the payment of all the Notes or upon
the irrevocable deposit with the Trustee of United States dollars or U.S.
Government Obligations sufficient to pay when due principal of and interest on
the Notes to maturity or redemption, as the case may be.
19. Guarantees. The Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
20. Authentication. This Note shall not be valid until the Trustee
manually signs the certificate of authentication on the other side of this Note.
21. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. The Trustee, the Issuer, the Guarantor and the Holders agree
to submit to the jurisdiction of the courts of the State of New York in any
action or proceeding arising out of or relating to the Indenture or the Notes.
22. 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).
A-7
The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
RADIO UNICA CORPORATION
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A-8
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
[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-9
---------------------------
Signature Guaranteed*:
*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-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Issuer pursuant to Section 4.12 or Section 4.19 of the Indenture, check the
appropriate box:
/ / Section 4.12 / / Section 4.19
If you want to have only part of the Note purchased by the Issuer
pursuant to Section 4.12 or Section 4.19 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 face
of this Note)
---------------------------
Signature Guaranteed*
*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-11
Exhibit B
Form of Legend for
144A Note
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT EXHIBIT B OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES
THAT (1) 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 THIS NOTE), RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE ISSUER 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 SECURITIES ACT OR (F) PURSUANT TO ANY OTHER
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) AND (2) 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 ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
B-1
EXHIBIT C
Form of Legend and
Assignment Language 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.
[Assignment language on following pages]
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 I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
[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 Guaranteed*:
*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 Notes
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) 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
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS 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
(Accredited Investors)
[Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------, ----
Wilmington Trust Company
Radio Unica Corp.
c/o Wilmington Trust Company
Attention:
Re: Radio Unica Corp., a corporation organized under
the laws of Delaware (the "Issuer")
11 3/4% Senior Discount 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 July 27, 1998 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 or any other applicable securities laws, 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 Issuer or any subsidiary thereof, (ii) in accordance
with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined in Rule 144A), (iii) 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, (iv) 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, (v) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if applicable) or (vi)
pursuant to an effective registration statement, 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.
E-1
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Issuer such certifications,
legal opinions and other information as you and the Issuer 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.
You 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: ]
---------------------------------
E-2
EXHIBIT F
Form of Certificate
(Regulation S)
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------, ----
Wilmington Trust Company
Radio Unica Corp.
c/o Wilmington Trust Company
Attention:
Re: Radio Unica Corp., a corporation organized under
the laws of Delaware (the "Issuer")
11 3/4% Senior Discount Notes due 2006 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $158,088,000 aggregate
principal amount at maturity 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 off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 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
F-1
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You 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 Transferee]
By:
--------------------------------
F-2
EXHIBIT G
Form of Guarantee
GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and sev
erally unconditionally guarantees, to the extent set forth in the Indenture
dated as of July 27, 1998 by and among Radio Unica Corporation, as issuer, the
Guarantors, as guarantors, and The Wilmington Trust Company, 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
Accreted Value or 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
Value of or principal of, and premium and, to the extent permitted by law,
interest, and the due and punctual performance of all other obligations of the
Issuer to the Noteholders or the Trustee, all in accordance with the terms set
forth in Article 10 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.
No equity holder, officer, director or incorporator, as such, past,
present or future, of any Guarantor shall have any liability under the Guarantee
by reason of his or its status as such stockholder, officer, director or
incorporator.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which the Guarantees are
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized Signatories.
The obligations of the Guarantors to the Noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
[Signatures on Following Pages]
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to
be signed by a duly authorized officer.
RADIO UNICA OF SAN FRANCISCO INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
ORO SPANISH BROADCASTING, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA OF SAN FRANCISCO
LICENSE CORP.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA OF MIAMI, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA OF MIAMI LICENSE CORP.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA OF LOS ANGELES, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA OF LOS ANGELES LICENSE
CORP.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA OF SAN ANTONIO, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA NETWORK, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
RADIO UNICA SALES CORP.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer