EXHIBIT 4.4
S&C Draft of July 23, 1998
________________________________________________________________________________
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
As Issuer
---------
TO
BANKERS TRUST COMPANY
As Trustee
----------
________________
Indenture
Dated as of August __, 1998
________________
$200,000,000
__% Senior Subordinated Notes due ____________, 2008
________________________________________________________________________________
.....................................
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August __, 1998
Trust Indenture Indenture
Act Section Section
--------------- ----------
(S) 310(a)(1)..................................... 609
(a)(2)..................................... 609
(a)(3)..................................... Not
Applicable
(a)(4)..................................... Not
Applicable
(b)........................................ 608
610
(S) 311(a)........................................ 613(a)
(b)........................................ 613(b)
(b)(2)..................................... 703(a)(2)
703(b)
(S) 312(a)........................................ 701
702(a)
(b)........................................ 702(b)
(c)........................................ 702(c)
(S) 313(a)........................................ 703(a)
(b)........................................ 703(b)
(c)........................................ 703(a)
703(b)
(d)........................................ 703(c)
(S) 314(a)........................................ 704
(b)........................................ Not
Applicable
(c)(1)..................................... 102
(c)(2)..................................... 102
(c)(3)..................................... Not
Applicable
(d)........................................ Not
Applicable
(e)........................................ 102
(S) 315(a)........................................ 601(a)
(b)........................................ 602
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703(a)(6)
(c)........................................ 601(b)
(d)........................................ 601(c)
(d)(1)..................................... 601(a)(1)
(d)(2)..................................... 601(c)(2)
(d)(3)..................................... 601(c)(3)
(e)........................................ 514
Trust Indenture Indenture
Act Section Section
----------------- ----------
(S) 316(a)........................................ 101
(a)(1)(A).................................. 502
512
(a)(1)(B).................................. 513
(a)(2)..................................... Not
Applicable
(b)........................................ 508
(S) 317(a)(1)..................................... 503
(a)(2)..................................... 504
(b)........................................ 1003
(S) 318(a)........................................ 107
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______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
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INDENTURE.............................................................. 1
RECITALS OF THE COMPANY................................................ 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.............................................. 1
Acquired Debt................................................... 2
Act............................................................. 2
Affiliate....................................................... 2
Agent Member.................................................... 2
Applicable Procedures........................................... 3
Asset Disposition............................................... 3
Board of Directors.............................................. 3
Board Resolution................................................ 3
Business Day.................................................... 4
Capital Lease Obligation........................................ 4
Capital Stock................................................... 4
Cash Equivalents................................................ 4
Cedel........................................................... 4
Closing Date.................................................... 4
Commission...................................................... 5
Company......................................................... 5
Company Request................................................. 5
Consolidated Cash Flow Available for
Fixed Charges........................................... 5
Consolidated Cash Flow Coverage Ratio........................... 6
Consolidated Fixed Charges...................................... 6
Consolidated Income Tax Expense................................. 6
Consolidated Interest Expense................................... 6
Consolidated Net Income......................................... 7
Consolidated Net Worth.......................................... 8
Consolidated Tangible Assets.................................... 8
Corporate Trust Office.......................................... 8
Debt............................................................ 8
Depositary...................................................... 9
Designated Senior Debt.......................................... 9
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DTC............................................................. 9
Euroclear....................................................... 9
Exchange and Registration Rights Agreement...................... 9
Exchange Offer.................................................. 9
Exchange Registration Statement................................. 10
Event of Default................................................ 10
Exchange Act.................................................... 10
Exchange Notes.................................................. 10
Global Note..................................................... 10
Guarantee....................................................... 10
Holder.......................................................... 10
Incur........................................................... 10
Indenture....................................................... 11
Initial Purchasers.............................................. 11
Interest Payment Date........................................... 11
Interest Rate, Currency or Commodity Price
Agreement.................................................. 11
Investment...................................................... 11
Lien............................................................ 12
Maturity........................................................ 12
Moodys.......................................................... 12
Net Available Proceeds.......................................... 12
Note Purchase Agreement......................................... 13
Notes........................................................... 13
Offer to Purchase............................................... 13
Officers' Certificate........................................... 15
Opinion of Counsel.............................................. 15
Original Notes.................................................. 15
Outstanding..................................................... 15
Paying Agent.................................................... 16
Permitted Holder................................................ 17
Permitted Interest Rate, Currency or Commodity
Price Agreement........................................... 17
Permitted Investments........................................... 17
Person.......................................................... 18
Predecessor Note................................................ 18
Preferred Stock................................................. 18
Public Equity Offering.......................................... 18
Qualifying Theater Assets....................................... 18
Receivables..................................................... 19
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Receivables Sale................................................ 19
Redeemable Stock................................................ 19
Redemption Date................................................. 19
Redemption Price................................................ 19
Registration Default............................................ 19
Registration Default Period..................................... 20
Regulation S.................................................... 20
Regulation S Certificate........................................ 20
Regulation S Global Note........................................ 20
Regulation S Legend............................................. 20
Regulation S Notes.............................................. 20
Related Person.................................................. 20
Responsible Officer............................................. 20
Restricted Period............................................... 21
Restricted Notes................................................ 21
Restricted Notes Certificate.................................... 21
Restricted Notes Legend......................................... 21
Restricted Subsidiary........................................... 21
Rule 144........................................................ 21
Rule 144A....................................................... 21
Rule 144A Notes................................................. 21
S&P............................................................. 21
Securities Act.................................................. 21
Security Register............................................... 21
Senior Bank Facility............................................ 21
Senior Debt..................................................... 22
Shelf Registration Statement.................................... 22
Special Interest Payments....................................... 22
Special Record Date............................................. 22
Stated Maturity................................................. 22
Subordinated Debt............................................... 22
Subsidiary...................................................... 23
Successor Note.................................................. 24
Temporary Cash Investments...................................... 24
Trust Indenture Act............................................. 25
Trustee......................................................... 25
U.S. Person..................................................... 25
Vice President.................................................. 26
Voting Stock.................................................... 26
Wholly Owned Restricted Subsidiary.............................. 26
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SECTION 102. Compliance Certificates and Opinions..................... 26
SECTION 103. Form of Documents Delivered to Trustee................... 27
SECTION 104. Acts of Holders; Record Date............................. 28
SECTION 105. Notices, Etc., to Trustee and Company.................... 29
SECTION 106. Notice to Holders; Waiver................................ 30
SECTION 107. Conflict with Trust Indenture Act........................ 30
SECTION 108. Effect of Headings and Table of
Contents.......................................... 31
SECTION 109. Successors and Assigns................................... 31
SECTION 110. Separability Clause...................................... 31
SECTION 111. Benefits of Indenture.................................... 31
SECTION 112. Governing Law............................................ 31
SECTION 113. Legal Holidays........................................... 31
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule
144A and Regulation S Notes....................... 32
SECTION 202. Form of Face of Note..................................... 33
SECTION 203. Form of Reverse of Note.................................. 37
SECTION 204. Form of Trustee's Certificate of Authentication.......... 42
ARTICLE THREE
The Notes
SECTION 301. Title and Terms.......................................... 43
SECTION 302. Denominations............................................ 44
SECTION 303. Execution, Authentication, Delivery and Dating.......... 44
SECTION 304. Temporary Notes.......................................... 45
SECTION 305. Global Notes............................................. 46
SECTION 306. Registration, Registration of
Transfer and Exchange Generally;
Restrictions on Transfer and
Exchange; Securities Act Legends..................... 48
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SECTION 307. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and
Stolen Notes......................................... 52
SECTION 308. Payment of Interest; Interest
Rights Preserved..................................... 53
SECTION 309. Persons Deemed Owners.................................... 54
SECTION 310. Cancellation............................................. 55
SECTION 311. Computation of Interest.................................. 55
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
Indenture............................................ 56
SECTION 402. Application of Trust Money............................... 57
ARTICLE FIVE
Remedies
SECTION 501. Events of Default........................................ 58
SECTION 502. Acceleration of Maturity; Rescission
and Annulment........................................ 60
SECTION 503. Collection of Indebtedness and Suits..................... 62
SECTION 504. Trustee May File Proofs of Claim......................... 63
SECTION 505. Trustee May Enforce Claims............................... 63
SECTION 506. Application of Money Collected........................... 64
SECTION 507. Limitation on Suits...................................... 64
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.............. 65
SECTION 509. Restoration of Rights and Remedies....................... 65
SECTION 510. Rights and Remedies Cumulative........................... 66
SECTION 511. Delay or Omission Not Waiver............................. 66
SECTION 512. Control by Holders....................................... 66
SECTION 513. Waiver of Past Defaults.................................. 67
SECTION 514. Undertaking for Costs.................................... 67
SECTION 515. Waiver of Stay or Extension Laws......................... 67
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ARTICLE SIX
The Trustee
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SECTION 601. Certain Duties and Responsibilities......... 68
SECTION 602. Notice of Defaults.......................... 68
SECTION 603. Certain Rights of Trustee................... 69
SECTION 604. Not Responsible for Recitals
or Issuance of Notes...................... 70
SECTION 605. May Hold Notes.............................. 70
SECTION 606. Money Held in Trust......................... 70
SECTION 607. Compensation and Reimbursement.............. 71
SECTION 608. Disqualification; Conflicting
Interests................................. 71
SECTION 609. Corporate Trustee Required;
Eligibility............................... 71
SECTION 610. Resignation and Removal;
Appointment of Successor.................. 72
SECTION 611. Acceptance of Appointment by
Successor................................. 73
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business................. 74
SECTION 613. Preferential Collection
of Claims Against Company................. 74
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders............ 74
SECTION 702. Preservation of Information;
Communications to Holders................. 75
SECTION 703. Reports by Trustee.......................... 75
SECTION 704. Reports by Company.......................... 76
SECTION 705. Officers' Certificate with Respect
to Change in Interest Rates............... 76
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain
Transfers, Leases and
Acquisition of Assets......................... 76
SECTION 802. Successor Substituted............................ 77
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.................... 78
SECTION 902. Supplemental Indentures
with Consent of Holders....................... 79
SECTION 903. Execution of Supplemental
Indentures.................................... 80
SECTION 904. Effect of Supplemental Indentures................ 80
SECTION 905. Conformity with Trust Indenture Act.............. 80
SECTION 906. Reference in Notes to
Supplemental Indentures....................... 80
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest...................................... 81
SECTION 1002. Maintenance of Office or Agency.................. 81
SECTION 1003. Money for Note................................... 82
SECTION 1004. Existence........................................ 83
SECTION 1005. Maintenance of Properties........................ 84
SECTION 1006. Payment of Taxes and Other Claims................ 84
SECTION 1007. Maintenance of Insurance......................... 84
SECTION 1008. Limitation on Consolidated Debt.................. 85
SECTION 1009. Limitation on Senior Subordinated
Debt.......................................... 87
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SECTION 1010. Limitation on Issuance of Guarantees
of Subordinated Debt................... 88
SECTION 1011. Limitation on Liens....................... 88
SECTION 1012. Limitation on Restricted Payments......... 90
SECTION 1013. Limitations on Dividend and Other
Payment Restrictions Affecting
Subsidiaries........................... 92
SECTION 1014. Limitation on Asset Disposition........... 94
SECTION 1015. Transactions with Affiliates
and Related Persons.................... 94
SECTION 1016. Change of Control......................... 95
SECTION 1017. Provision of Financial Information........ 96
SECTION 1018. Unrestricted Subsidiaries................. 96
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates................ 97
SECTION 1020. Waiver of Certain Covenants............... 98
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption....................... 98
SECTION 1102. Applicability of Article.................. 99
SECTION 1103. Election to Redeem; Notice to
Trustee................................ 99
SECTION 1104. Selection by Trustee of Notes to Be
Redeemed............................... 100
SECTION 1105. Notice of Redemption...................... 100
SECTION 1106. Deposit of Redemption Price............... 101
SECTION 1107. Notes Payable on Redemption Date.......... 101
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt.......... 102
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc....................... 102
SECTION 1203. No Payment When Senior Debt in
Default................................ 104
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SECTION 1204. Payment Permitted If No Default......... 106
SECTION 1205. Subrogation to Rights of Holders
of Senior Debt....................... 106
SECTION 1206. Provisions Solely to Define
Relative Rights...................... 106
SECTION 1207. Trustee to Effectuate Subordination..... 107
SECTION 1208. No Waiver of Subordination
Provisions........................... 107
SECTION 1209. Notice to Trustee....................... 108
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating
Agent................................ 109
SECTION 1211. Trustee Not Fiduciary for Holders
of Senior Debt....................... 109
SECTION 1212. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights..................... 109
SECTION 1213. Article Applicable to Paying Agents..... 110
SECTION 1214. Defeasance of This Article Twelve....... 110
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance
or Covenant Defeasance............... 110
SECTION 1302. Defeasance and Discharge................ 110
SECTION 1303. Covenant Defeasance..................... 111
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance.................. 112
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions....... 115
SECTION 1306. Reinstatement........................... 115
TESTIMONIUM................................................... 117
SIGNATURES AND SEALS.......................................... 117
ACKNOWLEDGMENTS............................................... 118
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ANNEX A Form of Regulation S Certificate........ A-1
ANNEX B Form of Restricted Securities
Certificate........................... B-1
ANNEX C Form of Unrestricted Securities
Certificate........................... C-1
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INDENTURE, dated as of August ___, 1998, between Loews Cineplex
Entertainment Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
Bankers Trust Company, a New York banking corporation, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its ___%
Senior Subordinated Notes due ___, 2008 (the "Notes") of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary (i) to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and (ii) to make this Indenture a
valid agreement of the Company, all in accordance with their respective terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted as consistently applied by the Company at the date of such
computation;
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquired Debt" of any particular Person means Debt of any other
Person existing at the time such other Person merged with or into or became a
Subsidiary of such particular Person or assumed by such particular Person in
connection with the acquisition of assets from any other Person, and not
Incurred by such other Person in connection with, or in contemplation of, such
other Person merging with
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or into such particular Person or becoming a Subsidiary of such particular
Person or such acquisition.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Note, Euroclear and Cedel, in each
case to the extent applicable to such transaction and as in effect at the time
of such transfer or transaction.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including any issuance or sale by a Restricted Subsidiary of
Capital Stock of such Restricted Subsidiary, and including a consolidation or
merger or other sale of any such Restricted Subsidiary with, into or to another
Person in a transaction in which such Restricted Subsidiary ceases to be a
Restricted Subsidiary, but excluding a disposition by a Restricted Subsidiary of
such Person to such Person or a Wholly Owned Restricted Subsidiary of such
Person or by such Person to a Wholly Owned Restricted Subsidiary of such Person)
of (i) shares of Capital Stock (other than directors' qualifying shares) or
other ownership interests of a Restricted Subsidiary of such Person, (ii)
substantially all of the assets of such Person or any of its Restricted
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Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Restricted Subsidiaries outside of the
ordinary course of business, provided in each case that the aggregate
consideration for such transfer, conveyance, sale, lease or other disposition is
equal to $2.0 million or more. The term "Asset Disposition" shall not include
(i) any sale and leaseback of Qualifying Theater Assets effected at fair market
value, and (ii) any swap or exchange of Qualifying Theater Assets of the Company
or its Subsidiaries for Qualifying Theater Assets of another Person, provided
that if the fair market value of the assets exchanged by the Company or its
Subsidiary exceeds the fair market value of the assets to be received, in each
case as determined in good faith by the Board of Directors of the Company, such
excess shall be subject to Section 1014 hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York or
in the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due
-4-
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on the face
of a balance sheet of such Person in accordance with generally accepted
accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Cash Equivalents" means (i) direct obligations of the United States
of America or any agency thereof having maturities of not more than one year
from the date of acquisition, (ii) time deposits and certificates of deposit of
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500 million, with maturities of not more than one year from the
date of acquisition, (iii) repurchase obligations issued by any bank described
in clause (ii) above with a term not to exceed 30 days; (iv) commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by ▇▇▇▇▇'▇, in each case maturing within one year after the
date of acquisition and (v) shares of any money market mutual fund, or similar
fund, in each case having excess of $500 million, which invests predominantly in
investments of the types describes in clauses (i) through (iv) above.
"Cedel" means ▇▇▇▇▇, ▇.▇. (or any successor securities clearing
agency).
"Closing Date" means August ____, 1998.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
-5-
Indenture Act, then the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income of the Company and its Restricted Subsidiaries
for such period increased by the sum of (i) Consolidated Interest Expense of the
Company and its Restricted Subsidiaries for such period, plus (ii) Consolidated
Income Tax Expense of the Company and its Restricted Subsidiaries for such
period, plus (iii) the consolidated depreciation and amortization expense
included in the income statement of the Company and its Restricted Subsidiaries
for such period, plus (iv) all other non-cash items reducing Consolidated Net
Income of the Company and its Restricted Subsidiaries, less all non-cash items
increasing Consolidated Net Income of the Company and its Restricted
Subsidiaries; provided, however, that there shall be excluded therefrom the
Consolidated Cash Flow Available for Fixed Charges (if positive) of any
Restricted Subsidiary of the Company (calculated separately for such Restricted
Subsidiary in the same manner as provided above for the Company) that is subject
to a restriction which prevents the
-6-
payment of dividends or the making of distributions to the Company or another
Restricted Subsidiary of the Company to the extent of such restriction.
"Consolidated Cash Flow Coverage Ratio" as of any date of
determination means the ratio of (i) Consolidated Cash Flow Available for Fixed
Charges of the Company and its Restricted Subsidiaries for the period of the
most recently completed four consecutive fiscal quarters for which quarterly or
annual financial statements are available to (ii) Consolidated Fixed Charges of
the Company and its Restricted Subsidiaries for such period; provided, however,
that Consolidated Fixed Charges shall be adjusted to give effect on a pro forma
basis to any Debt that has been Incurred by the Company or any Restricted
Subsidiary since the beginning of such period that remains outstanding and to
any Debt that is proposed to be Incurred by the Company or any Restricted
Subsidiary as if in each case such Debt had been Incurred on the first day of
such period and as if any Debt that (i) is or will no longer be outstanding as
the result of the Incurrence of any such Debt or (ii) had been repaid or retired
during such period had not been outstanding as of the first day of such period;
provided, however, that in making such computation, the Consolidated Interest
Expense of the Company and its Restricted Subsidiaries attributable to interest
on any proposed Debt bearing a floating interest rate shall be computed on a pro
forma basis as if the rate in effect on the date of computation had been the
applicable rate for the entire period; and provided further that, in the event
the Company or any of its Restricted Subsidiaries has made Asset Dispositions or
acquisitions of assets not in the ordinary course of business (including
acquisitions of other Persons by merger, consolidation or purchase of Capital
Stock) during or after such period, such computation shall be made on a pro
forma basis as if the Asset Dispositions or acquisitions had taken place on the
first day of such period.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such period
-7-
calculated in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in a consolidated income statement (without deduction
of interest income) of the Company and its Restricted Subsidiaries for such
period calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any commissions, fees or other payments (except reimbursement
payments) with respect to letters of credit, bankers' acceptances or similar
facilities; (iii) fees with respect to interest rate swap or similar agreements
or foreign currency hedge, exchange or similar agreements; (iv) Preferred Stock
dividends of Restricted Subsidiaries of the Company (other than with respect to
Redeemable Stock) declared and paid or payable to persons other than the Company
or any Restricted Subsidiary; (v) accrued Redeemable Stock dividends of the
Company and its Restricted Subsidiaries payable to Persons other than the
Company or any Restricted Subsidiary, whether or not declared or paid; (vi)
interest on Debt guaranteed by the Company and its Restricted Subsidiaries; and
(vii) the portion of any rental obligation allocable to interest expense.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or a Restricted
Subsidiary of the Company in a pooling-of-interests transaction for any period
-8-
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Subsidiary of the Company except to the extent of the
amount of dividends or other distributions actually paid to the Company or a
Subsidiary of the Company by such Person during such period, (c) gains or losses
on Asset Dispositions by the Company or its Restricted Subsidiaries, (d) all
extraordinary gains and extraordinary losses, (e) the cumulative effect of
changes in accounting principles, (f) non-recurring and other one-time non-
operating expenses and (g) the tax effect of any of the items described in
clauses (a) through (f) above; provided, further, that for purposes of any
determination pursuant to the provisions described under Section 1012 hereof,
there shall further be excluded therefrom the net income (but not net loss) of
any Restricted Subsidiary of the Company that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary of the Company to the extent of such
restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect to
the Company, adjustments following the date of this Indenture to the accounting
books and records of the Company in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"Consolidated Tangible Assets" of any Person means, as of any date,
the amount which, in accordance with GAAP, would be set forth under the caption
"Total Assets" (or any like caption) on a consolidated balance sheet of such
Person and its Restricted Subsidiaries, less all intangible assets, including,
without limitation, goodwill, organization costs, patents, trademarks,
copyrights, franchises, and research and development costs.
-9-
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which is, at the date as of which this Indenture is dated, located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
and Agency Group or at any other time at such other address as the Trustee may
designate from time to time by notice to all Holders of the Notes.
"Corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (including securities repurchase agreements but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business which are not overdue or which are being contested in good
faith), (v) every Capital Lease Obligation of such Person, (vi) all Receivables
Sales of such Person, together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith, (vii) all Redeemable Stock issued by such
Person, (viii) Preferred Stock of Restricted Subsidiaries of such Person held by
Persons other than such Person or one of its Wholly Owned Restricted
Subsidiaries, (ix) every obligation under Interest Rate, Currency or Commodity
Price Agreements of such Person and (x) every obligation of the type referred to
in clauses (i) through (ix) of another Person and all dividends of another
Person the payment of which, in either case, such Person has Guaranteed or is
responsible or liable, directly or
-10-
indirectly, as obligor, Guarantor or otherwise. The "amount" or "principal
amount" of Debt at any time of determination as used herein represented by (a)
any Receivables Sale, shall be the amount of the unrecovered capital or
principal investment of the purchaser (other than the Company or a Wholly Owned
Restricted Subsidiary of the Company) thereof, excluding amounts representative
of yield or interest earned on such investment, (b) any Redeemable Stock, shall
be the maximum fixed redemption or repurchase price in respect thereof and (c)
any Permitted Interest Rate, Currency or Commodity Price Agreements shall be
zero.
"Depositary" means, with respect to any Notes, a clearing agency that
is registered as such under the Exchange Act and is designated by the Company to
act as Depositary for such Notes (or any successor securities clearing agency so
registered).
"Designated Senior Debt" shall mean (i) the obligations of the
Company under the Senior Bank Facility and (ii) any other Senior Debt of the
Company permitted under the Indenture the principal amount of which at original
issuance is $25.0 million or more and that has been designated by the Company as
Designated Senior Debt.
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of August ___, 1998, among the Company,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as representatives of the Initial Purchasers, and the
Holders from time to time as provided therein, as such agreement may be amended
from time to time.
-11-
"Exchange Offer" means an offer made by the Company pursuant to the
Exchange and Registration Rights Agreement under the effective registration
statement under the Securities Act to exchange securities substantially
identical to Outstanding Notes (except for the differences provided for herein)
for Outstanding Notes.
"Exchange Registration Statement" means a registration statement of
the Company under the Securities Act registering Exchange Notes for distribution
pursuant to the Exchange Offer.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
"Exchange Notes" means the Notes issued pursuant to the Exchange Offer
and their Successor Notes.
"Global Note" means a Note that is registered in the Security Register
in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for
-12-
collection or deposit, in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Note is registered in the
Note Register.
"Incur" means, with respect to any Debt 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 Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided, however, that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Purchasers" means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., BT ▇▇▇▇. ▇▇▇▇▇
Incorporated, Credit Suisse First Boston Corporation and Salomon Brothers Inc,
as purchasers of the Notes from the Company pursuant to the Note Purchase
Agreement.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Notes.
"Interest Rate, Currency or Commodity Price Agreement" of any Person
means any forward contract, futures
-13-
contract, swap, option or other financial agreement or arrangement (including,
without limitation, caps, floors, collars and similar agreements) relating to,
or the value of which is dependent upon, interest rates, currency exchange rates
or commodity prices or indices (excluding contracts for the purchase or sale of
goods in the ordinary course of business).
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other Person, including any payment on a Guarantee of any
obligation of such other Person.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moodys" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable,
-14-
but excluding any other consideration received in the form of assumption by the
acquiree of Debt or other obligations relating to such properties or assets)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Asset Disposition, (ii) all payments made by such
Person or its Restricted Subsidiaries on any Debt which is secured by such
assets in accordance with the terms of any Lien upon or with respect to such
assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Disposition or by applicable law, be repaid out
of the proceeds from such Asset Disposition, (iii) all distributions and other
payments made to minority interest holders in Restricted Subsidiaries of such
Person or joint ventures as a result of such Asset Disposition and (iv)
appropriate amounts to be provided by such Person or any Restricted Subsidiary
thereof, as the case may be, as a reserve in accordance with generally accepted
accounting principles against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case as
determined by the Board of Directors, in its reasonable good faith judgment
evidenced by a resolution of the Board of Directors filed with the Trustee;
provided, however, that any reduction in such reserve following the consummation
of such Asset Disposition will be treated for all purposes of the Indenture and
the Notes as a new Asset Disposition at the time of such reduction with Net
Available Proceeds equal to the amount of such reduction.
"Note Purchase Agreement" means the Purchase Agreement, dated as of
August ____, 1998, between the Company and the Initial Purchasers, as such
agreement may be amended from time to time.
-15-
"Notes" means notes designated in the first paragraph of the RECITALS
OF THE COMPANY and includes the Exchange Notes.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Note Register on the date of the Offer offering to purchase up
to the principal amount of Notes specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Notes within five Business Days after the Expiration Date. The
Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain a description of the events
requiring the Company to make the Offer to Purchase and any other information
required by applicable law to be included therein. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes offered to
be purchased by the Company pursuant to the Offer to Purchase (including,
if less than 100%, the manner by which such has been determined pursuant to
the Section
-16-
hereof requiring the Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Note accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer
to Purchase will be required to surrender such Note at the place or places
specified in the Offer prior to the close of business on the Expiration
Date (such Note being, if the Company or the Trustee so requires, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing);
-17-
(10) that Holders will be entitled to withdraw all or any portion of
Notes tendered if the Company (or their Paying Agent) receives, not later
than the close of business on the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder tendered, the certificate number of
the Note the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Notes and (b)
if Notes in an aggregate principal amount in excess of the Purchase Amount
are tendered and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the
-18-
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Original Notes" means all Notes other than Exchange Notes.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Notes; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Notes which have been transferred pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
-19-
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Permitted Holder" means each of Sony Pictures Entertainment Inc. and
Universal Studios, Inc. and their respective Affiliates.
"Permitted Interest Rate, Currency or Commodity Price Agreement" of
any Person means any Interest Rate, Currency or Commodity Price Agreement
entered into with one or more financial institutions in the ordinary course of
business that is designed to protect such Person against fluctuations in
interest rates or currency exchange rates with respect to Debt Incurred and
which shall have a notional amount no greater than the payments due with respect
to the Debt being hedged thereby, or in the case of currency or commodity
protection agreements, against currency exchange rate or commodity price
fluctuations in the ordinary course of business relating to then existing
financial obligations or then existing or sold production and not for purposes
of speculation.
-20-
"Permitted Investments" means (i) an Investment in the Company or a
Restricted Subsidiary of the Company; (ii) an Investment in a Person, if such
Person or a Subsidiary of such Person will, as a result of the making of such
Investment and all other contemporaneous related transactions, become a
Restricted Subsidiary of the Company or be merged or consolidated with or into
transfer or convey all or substantially all its assets to the Company or a
Restricted Subsidiary of the Company; (iii) a Temporary Cash Investment; (iv)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses in accordance with
generally accepted accounting principles; (v) stock, obligations or securities
received in settlement of debts owing to the Company or a Restricted Subsidiary
of the Company as a result of bankruptcy or insolvency proceedings or upon the
foreclosure, perfection, enforcement or agreement in lieu of foreclosure of any
Lien in favor of the Company or a Restricted Subsidiary of the Company; (vi)
refundable construction advances made with respect to the construction of
properties of a nature or type that are used in a business or similar or related
to the business of the Company or its Restricted Subsidiaries in the ordinary
course of business; (vii) advances or extensions of credit on terms customary in
the industry in the form of accounts or other receivables incurred, or pre-paid
film rentals, and loans and advances made in settlement of such accounts
receivable, all in the ordinary course of business; (viii) Investments in the
Notes; (ix) any consolidation or merger of a Wholly-Owned Restricted Subsidiary
of the Company to the extent otherwise permitted under the Indenture; (x)
Investments in Permitted Interest Rate Currency or Commodity Price Agreements;
(xi) entry into and Investments in joint ventures, partnerships and other
Persons engaged or proposing to engage in the indoor motion picture exhibition
business, provided that the amount of such Investment, valued at the time made,
together with all Investments previously made pursuant to this clause (xi),
valued at the respective times made, shall not exceed 10% of the Consolidated
Tangible Assets of the Company as of the last day of the full fiscal quarter
ending immediately prior
-21-
to the date of such Investment; and (xii) other Investments not to exceed $20.0
million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Qualifying Theater Assets" means all motion picture theaters
(whether owned in fee or leased), all other motion picture theater assets,
including, without limitation, theater furniture and fixtures, all real property
acquired for the purpose of motion picture theater development or construction,
and joint venture interests or partnership interests in Persons owning, leasing,
developing or constructing motion picture theaters or principally engaged in the
business of exhibiting motion pictures.
-22-
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money.
"Receivables Sale" of any Person means any sale of Receivables of
such Person (pursuant to a purchase facility or otherwise), other than in
connection with a disposition of the business operations of such Person relating
thereto or a disposition of defaulted Receivables for purposes of collection and
not as a financing arrangement.
"Redeemable Stock" of any Person means any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or otherwise (including upon the
occurrence of an event) matures or is required to be redeemed (pursuant to any
sinking fund obligation or otherwise) or is convertible into or exchangeable for
Debt or is redeemable at the option of the holder thereof, in whole or in part,
at any time prior to the final Stated Maturity of the Notes; provided that
"Redeemable Stock" shall not include any Capital Stock that is payable at
maturity, or upon required redemption or redemption at the option of the holder
thereof, or that is automatically convertible or exchangeable, solely in or into
Common Stock of such Person.
"Redemption Date", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Default" means the occurrence of any of the following
events: (i) the Company has not filed the Exchange Registration Statement or
Shelf Registration Statement on or before the date on which such registration
statement is required to be filed pursuant to the Exchange and Registration
Rights Agreement, (ii) the Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the
-23-
Commission on or before the date on which such registration statement is
required to become or be declared effective under the requirements of the
Exchange and Registration Rights Agreement or (iii) the Exchange Offer has not
been consummated within 30 Business Days after the initial effective date of the
Exchange Registration Statement relating to the Exchange Offer (if the Exchange
Offer is then required to be made under the Exchange and Registration Rights
Agreement) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required to be filed pursuant the Exchange and Registration Rights
Agreement is filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective.
"Registration Default Period" means any period during which a
Registration Default has occurred and is continuing.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Note" has the meaning specified in Section 201.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Note set forth in Section 202 to be placed upon
Regulation S Notes.
"Regulation S Notes" means all Notes required pursuant to Section
306(c) to bear a Regulation S Legend.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the
-24-
Outstanding Common Stock of such Person (or in the case of a Person that is not
a corporation, 5% or more of the equity interest in such Person) or (b) 5% or
more of the combined voting power of the Voting Stock of such Person.
"Responsible Officer" means when used with respect to the Trustee any
officer within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary Treasurer or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Restricted Notes" means all Notes required pursuant to Section
306(c) to bear a Restricted Notes Legend. Such term includes the Restricted
Global Notes.
"Restricted Notes Certificate" means a certificate substantially in
for form set forth in Annex B.
"Restricted Notes Legend" means a legend substantially in the form of
the legend required in the form of Note set forth in Section 202 to be placed
upon a Restricted Note.
"Restricted Period" means the period of 40 consecutive days beginning
on the later of (i) the day on which Notes are first offered to persons other
than distributors (as defined in Regulation S) in reliance on Regulation S and
(ii) the Closing Date.
"Restricted Subsidiary" means any Subsidiary, whether existing on or
after the date of this Indenture, unless such Subsidiary is an Unrestricted
Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
-25-
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means the Notes purchased by the Initial Purchasers
from the Company pursuant to the Note Purchase Agreement, other than the
Regulation S Notes.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-
▇▇▇▇, Inc.
"Securities Act" means the Securities Act of 1933, as it may be
amended and any successor act thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306(a).
"Senior Bank Facility" means the Credit Agreement, dated as of May
14, 1998, among the Company, as borrower, the lenders listed therein, as
lenders, Bankers Trust Company, as administrative agent and co-syndication agent
and Bank of America NT&SA, The Bank of New York and Credit Suisse First Boston,
as co-syndication agents, as it may be amended or restated from time to time,
and any renewal, extension, refinancing, refunding or replacement thereof.
"Senior Debt" means (i) the principal of (and premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities and
fees relating to, the Senior Bank Facility, (ii) the principal of (and premium,
if any) and interest on Debt of the Company for money borrowed, whether Incurred
on or prior to the date of original issuance of the Notes or thereafter, and any
amendments, renewals, extensions, modifications, refinancings and refundings of
any such Debt and (iii) Permitted Interest Rate Agreements and Permitted
Currency Agreements entered into with respect to Debt described in clauses (i)
and (ii) above; provided, however, that the following shall not constitute
Senior Debt: (1) any Debt as to which the terms
-26-
of the instrument creating or evidencing the same provide that such Debt is not
superior in right of payment to the Notes, (2) any Debt which is subordinated in
right of payment in any respect to any other Debt of the Company, (3) Debt
evidenced by the Notes, (4) any Debt owed to a Person when such Person is a
Subsidiary of the Company, (5) any obligation of the Company arising from
Redeemable Stock of the Company, (6) that portion of any Debt which is Incurred
in violation of the Indenture and (7) Debt which, when Incurred and without
respect to any election under Section 1111(b) of Title 11, United States Code,
is without recourse to the Company.
"Shelf Registration Statement" means a shelf registration statement
under the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Exchange and Registration Rights Agreement, registering
Original Notes for resale.
"Special Interest Payments" has the meaning specified in the form of
Notes set forth in Section 202.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"Subordinated Debt" means Debt of the Company as to which the payment
of principal of (and premium, if any) and interest and other payment obligations
in respect of such Debt shall be subordinate to the prior payment in full of the
Notes to at least the following extent: (i) no payments of principal of (or
premium, if any) or interest on or otherwise due in respect of such Debt may be
permitted for so long as any default in the payment of principal (or premium, if
any) or interest on the Notes exists; (ii) in the event that any other default
that with the passing of
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time or the giving of notice, or both, would constitute an event of default
exists with respect to the Notes, upon notice by 25% or more in principal amount
of the Notes to the Trustee, the Trustee shall have the right to give notice to
the Company and the holders of such Debt (or trustees or agents therefor) of a
payment blockage, and thereafter no payments of principal of (or premium, if
any) or interest on or otherwise due in respect of such Debt may be made for a
period of 179 days from the date of such notice; and (iii) such Debt may not (x)
provide for payments of principal of such Debt at the stated maturity thereof or
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the Company
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity of the Notes or (y) permit redemption or
other retirement (including pursuant to an offer to purchase made by the
Company) of such other Debt at the option of the holder thereof prior to the
final Stated Maturity of the Notes, other than a redemption or other retirement
at the option of the holder of such Debt (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change of control of
the Company pursuant to provisions substantially similar to those contained in
Section 1016 hereof (and which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the Company's repurchase of the
Notes required to be repurchased by the Company pursuant to the provisions
described under Section 1016).
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has
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at least a majority ownership and power to direct the policies, management and
affairs thereof.
"Successor Note" of any particular Note means every Note issued after,
and evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 307 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Note.
"Temporary Cash Investments" means any Investment in the following
kinds of instruments: (A) readily marketable obligations issued or
unconditionally guaranteed as to principal and interest by the United States of
America or by any agency or authority controlled or supervised by and acting as
an instrumentality of the United States of America if, on the date of purchase
or other acquisition of any such instrument by the Company or any Restricted
Subsidiary of the Company, the remaining term to maturity or interest rate
adjustment is not more than two years; (B) obligations (including, but not
limited to, demand or time deposits, bankers' acceptances and certificates of
deposit) issued or guaranteed by a depository institution or trust company
incorporated under the laws of the United States of America, any state thereof
or the District of Columbia, provided that (1) such instrument has a final
maturity not more than one year from the date of purchase thereof by the Company
or any Restricted Subsidiary of the Company and (2) such depository institution
or trust company has at the time of the Company's or such Restricted
Subsidiary's Investment therein or contractual commitment providing for such
Investment, (x) capital, surplus and undivided profits (as of the date such
institution's most recently published financial statements) in excess of $100
million and (y) the long-term unsecured debt obligations (other than such
obligations rated on the basis of the credit of a Person other than such
institution) of such institution, at the time of the Company's or such
Restricted Subsidiary's Investment therein or contractual commitment providing
for such Investment, are rated in the
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highest rating category of both S&P and Moodys; (C) commercial paper issued by
any corporation, if such commercial paper has, at the time of the Company's or
any Restricted Subsidiary's Investment therein or contractual commitment
providing for such Investment credit ratings of at least A-1 by S&P and P-1 by
▇▇▇▇▇'▇; (D) money market mutual or similar funds having assets in excess of
$100 million; (E) readily marketable debt obligations issued by any corporation,
if at the time of the Company's or Restricted Subsidiary's Investment therein or
contractual commitment providing for such Investment (1) the remaining term to
maturity is not more than two years and (2) such debt obligations are rated in
one of the two highest rating categories of both S&P and ▇▇▇▇▇'▇; (F) demand or
time deposit accounts used in the ordinary course of business with commercial
banks the balances in which are at all times fully insured as to principal and
interest by the Federal Deposit Insurance Corporation or any successor thereto;
and (G) to the extent not otherwise included herein, Cash Equivalents. In the
event that either S&P or ▇▇▇▇▇'▇ ceases to publish ratings of the type provided
herein, a replacement rating agency shall be selected by the Company with the
consent of the Trustee, and in each case the rating of such replacement rating
agency most nearly equivalent to the corresponding S&P or ▇▇▇▇▇'▇ rating, as the
case may be, shall be used for purposes hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
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"U.S. Person" means (i) any individual resident in the United States,
(ii) any partnership or corporation organized or incorporated under the laws of
the United States, (iii) any estate of which an executor or administrator is a
U.S. Person (other than an estate governed by foreign law and of which at least
one executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which any
trustee is a U.S. Person (other than a trust of which at least one trustee is a
non-U.S. Person who has sole or shared investment discretion with respect to its
assets and no beneficiary of the trust (and no settlor if the Trust is
revocable) is a U.S. Person), (v) any agency or branch of a foreign entity
located in the United States, (vi) any non-discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a non-U.S. Person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated, and owned, by accredited investors within the meaning
of Rule 501(a) under the Securities Act who are not natural persons, estates or
trusts); provided, however, that the term "U.S. Person" does not include (A) a
branch or agency of a U.S. Person that is located and operating outside the
United States for valid business purposes as a locally regulated branch or
agency engaged in the banking or insurance business, (B) any employee benefit
plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
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"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant
-32-
or condition and the definitions herein relating thereto;
(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 each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon
-33-
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged
-34-
to him the execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Note.
-35-
SECTION 105. Notices, Etc., to Trustee and Company
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust and Agency Group, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
-36-
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be. Until such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Company and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
-37-
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt (subject to Article Twelve hereof) and the
Holders of Notes, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, or Purchase Date, or at the
Stated Maturity, as the case may be, provided that no
-38-
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Purchase Date or Stated Maturity, as the case may be.
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation S
------------------------------------------------------------
Notes.
-----
The Notes and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes.
The definitive Notes shall be printed, litho graphed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Notes may be listed, all as determined by the officers executing
such Notes, as evidenced by their execution thereof.
Upon their original issuance, Rule 144A Notes shall be issued in the
form of one or more Global Notes without interest coupons registered in the name
of DTC, as Depositary, or its nominee and deposited with the Trustee, as
custodian for DTC, in New York, New York, for credit by DTC to the respective
accounts of beneficial owners of the Notes represented thereby (or such other
accounts as they may direct). Such Global Notes, together with their Successor
Notes which are Global Notes other than the
-39-
Regulation S Global Note are collectively herein called the "Restricted Global
Note".
Upon their original issuance, Regulation S Notes shall be issued in
the form of one or more Global Notes without interest coupons registered in the
name of DTC, as Depositary, or its nominee and deposited with the Trustee, as
custodian for DTC, in New York, New York, for credit to ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels Office, as operator of the Euroclear, and ▇▇▇▇▇ to
the respective accounts of beneficial owners of the Notes represented thereby
(or such other accounts as they may direct) in accordance with the rules
thereof.
Prior to the expiration of the Restricted Period, beneficial interests
in the Regulation S Global Note may only be held through Euroclear and Cedel (as
indirect participants in DTC), unless such interests are exchanged for
corresponding interests in the Restricted Global Note in accordance with Section
306(b)(ii) hereof.
SECTION 202. Form of Face of Note.
--------------------
[IF THE NOTE IS A RESTRICTED NOTE, THEN INSERT --THE NOTES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,(3) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (5)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND
(B) IN ACCORDANCE
-40-
WITH ALL OTHER APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OF
AMERICA AND OTHER JURISDICTIONS.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE ABOVE PARAGRAPH.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER UNLESS THE
REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS ON TRANSFER SET
FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- THIS NOTE IS A GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE AND THE DEPOSITORY TRUST COMPANY IS TO
BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS NOTE 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 NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF THE NOTE IS A REGULATION S NOTE, THEN INSERT -- THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR
-41-
FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS NOTE IS REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF IS AVAILABLE.]
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
__% SENIOR SUBORDINATED NOTES DUE __, 2008
[If Restricted Global Note - CUSIP No. __]
[If Regulation S Global Note - ISIN No. __]
No. __________ $________
Loews Cineplex Entertainment Corporation, a corporation duly
organized and existing under the laws of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________________, or
registered assigns, the principal sum of ______________ Dollars (such amount the
"principal amount" of this Note) [IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- ,
or such other principal amount (which, when taken together with the principal
amounts of all other Outstanding Notes, shall not exceed $200,000,000 in the
aggregate at any time) as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture,] on _____________,
2008 and to pay interest thereon from ______________, 1998, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on __ and __ in each year, commencing ______________, 1999,
at the rate of __% per annum, until the principal hereof is paid or made
available for payment; provided that, if any Registration Default occurs under
the Exchange and Registration Rights Agreement, then the per annum interest rate
on this Note will increase for the period from the occurrence of the
Registration Default until such time as no Registration Default is in effect (at
which time the interest rate will be reduced to its initial rate) at a per annum
rate of 0.5% for the first 90-day period following the occurrence of such
Registration Default, and by an additional 0.5% thereafter (up to a maximum of
1.0%), and provided, further, that any amount of interest on this Note which is
-------- -------
overdue shall bear
-42-
interest (to the extent that payment thereof shall be legally enforceable) at
the rate per annum then borne by this Note from the date such amount is due to
the day it is paid or made available for payment, and such overdue interest
shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the ___ or ___ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date [IF THE NOTE IS AN ORIGINAL NOTE, THEN
INSERT --, provided that any accrued and unpaid interest (including Special
Interest Payments) on this Note upon the issuance of an Exchange Note in
exchange for this Note shall cease to be payable to the Holder hereof and shall
be payable on the next Interest Payment Date for such Exchange Note to the
Holder thereof on the related Regular Record Date]. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on the relevant Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Interest on this Note shall be computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Note will be made at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose, in such coin or currency of the United
-43-
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Note Register; provided
further that all payments of the principal (and premium, if any) and interest on
Notes, the Holders of which have given wire transfer instructions to the Company
or its agent at least 10 Business Days prior to the applicable payment date will
be required to be made by wire transfer of immediately available funds to the
accounts specified by such Holders in such instructions. Notwithstanding the
foregoing, the final payment of principal shall be payable only upon surrender
of this Note to the Paying Agent.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-44-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
[SEAL]
By___________________________________
Attest:
______________________________
SECTION 203. Form of Reverse of Note.
-----------------------
This Note is one of a duly authorized issue of Notes of the Company
designated as its __% Senior Subordinated Notes due ______________, 2008 (herein
called the "Notes"), limited in aggregate principal amount to $200,000,000,
issued and to be issued under an Indenture, dated as of ______________, 1998
(herein called the "Indenture", which term shall have the meaning assigned to it
in such instrument), among the Company, and Bankers Trust Company, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
The Notes will be subject to redemption, at the option of the Company,
in whole or in part, at any time on
-45-
or after ________________, 2003 and prior to maturity, upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Notes to be redeemed at such
Holder's address appearing in the Note Register, in amounts of $1,000 or an
integral multiple of $1,000, at the following Redemption Prices (expressed as
percentages of the principal amount) plus accrued interest to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date), if redeemed during the 12-month period
beginning ___ of the years indicated:
Redemption
Year Price
---- ----------
2003 ............................................... ___%
2004 ............................................... ___%
2005 ............................................... ___%
2006 and thereafter................................. 100.000%
In addition, if on or before ________________, 2001 the Company
receives net proceeds from the sale of its Common Stock in one or more Public
Equity Offerings, the Company may, at its option, use an amount equal to all or
a portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 33 1/3% of the original aggregate principal amount of the Notes,
provided, however, that Notes having a principal amount equal to at least 66
2/3% of the original aggregate principal amount of the Notes remain outstanding
after such redemption. Such redemption must occur on a Redemption Date within 90
days of such sale and upon not less than 30 or more than 60 days' notice mailed
to each Holder of Notes to be redeemed at such Holder's address appearing in the
Note Register, in amounts of $1,000 or an integral multiple of $1,000, at a
redemption price of ___% of the principal amount of the Notes plus accrued
interest to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
-46-
If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the particular
Notes to be redeemed or any portion thereof that is an integral multiple of
$1,000.
The Notes do not have the benefit of any sinking fund obligations.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control occurs, the Company shall be required
to make an Offer to Purchase for all or a specified portion of the Notes.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Note in part only, a new Note or Notes of like tenor for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
of all the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Note having been paid or discharged or (ii)
certain restrictive covenants and Events of Default with respect to this Note
having occurred, in each case upon compliance with certain conditions set forth
therein.
The Notes shall be subordinated in right of payment to Senior Debt of
the Company as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the
-47-
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given to
the Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in aggregate principal amount of the
Notes at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in aggregate principal amount of Notes at the time
Outstanding a direction inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits
described in the Indenture, including any suit instituted by the Holder of this
Note for the enforcement of any payment of principal hereof or any premium (if
any) or interest hereon on or after the respective due dates expressed herein
(or, in the case of redemption, on or after the Redemption Date or, in the case
of any purchase of this Note required to be made pursuant to an Offer to
Purchase, on the Purchase Date).
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or
-48-
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of (and premium, if any) and interest on this Note at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 principal amount and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes (subject to the provisions hereof with respect to determination of the
Person to whom interest is payable), whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
-49-
Interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-month days.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
-50-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety by
the Company pursuant to Section 1014 or 1016 of the Indenture, check the box:
[_]
If you want to elect to have only a part of this Note purchased by the
Company pursuant to Section 1014 or 1016 of the Indenture, state the principal
amount of this Note you want to elect to have so purchased by the Company:
$___________
Dated:______________ Your Signature:____________________
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:________________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other "signature guarantee
program" as may be determined by the Trustee in addition to,
or in substitution for STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SECTION 204. Form of Trustee's Certificate of
--------------------------------
Authentication.
--------------
This is one of the Notes referred to in the within-mentioned
Indenture.
___________________
-51-
as Trustee
By___________________
Authorized Officer
-52-
ARTICLE THREE
The Notes
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $200,000,000 except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 906 or 1108
or in connection with an Offer to Purchase pursuant to Sections 1014 and 1016.
The Notes shall be known and designated as the "__% Senior
Subordinated Notes due ___, 2008" of the Company. Their Stated Maturity shall be
__________, 2008 and they shall bear interest at the rate of ___% per annum,
from __________, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable semi-
annually on ___ and ___, commencing ___, 1999, until the principal thereof is
paid or made available for payment provided, if any Registration Default occurs
under the Exchange and Registration Rights Agreement, then the per annum
interest rate on the applicable Notes will increase for the period from the
occurrence of the Registration Default Period until such time as no Registration
Default is in effect (at which time the interest rate will be reduced to its
initial rate) by a per annum rate of 0.50% for the first 90-day period following
the occurrence of such Registration Default, and by an additional 0.5%
thereafter (up to a maximum of 1.0%).
The principal of (and premium, if any) and interest on the Notes shall
be payable at the office or agency of the Company in the Borough of Manhattan,
The City of New York maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register.
-53-
The Notes shall be subject to repurchase by the Company pursuant to an
Offer to Purchase as provided in Sections 1014 and 1016.
The Notes shall be redeemable as provided in Article Eleven.
The Notes shall be subordinated in right of payment to Senior Debt of
the Company as provided in Article Twelve.
The Notes shall be subject to defeasance at the option of the Company
as provided in Article Thirteen.
Unless the context otherwise requires, the Original Notes and the
Exchange Notes shall constitute one series for all purposes under the Indenture,
including with respect to any amendment, waiver, acceleration or other Act of
Holders, redemption or Offer to Purchase.
SECTION 302. Denominations.
-------------
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1000 and integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery
-----------------------------------
and Dating.
----------
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that
-54-
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
At any time and from time to time after the execution and delivery of
this Indenture and after the effectiveness of a registration statement under the
Securities Act with respect thereto, the Company may deliver Exchange Notes
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Exchange Notes and a
like principal amount of Original Notes for cancellation in accordance with this
Indenture, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Notes. Prior to authenticating such Exchange
Notes, and accepting any additional responsibilities under this Indenture in
relation to such Notes, the Trustee shall be entitled to receive, if requested,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating in substance:
(a) that all conditions hereunder precedent to the authentication and
delivery of such Exchange Notes have been complied with and that such
Exchange Notes, when such Notes have been duly authenticated and delivered
by the Trustee (and subject to any other conditions specified in such
Opinion of Counsel), have been duly issued and delivered and will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
-55-
applicability relating to or affecting creditors' rights and to general
equity principles; and
(b) that the issuance of the Exchange Notes in exchange for Original
Notes has been effected in compliance with the Securities Act.
Each Note shall be dated the date of its authentication.
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.
SECTION 304. Temporary Notes.
---------------
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes, which Notes are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as evidenced by their execution
thereof.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes, upon
surrender of the temporary Notes at any office or agency of the Company
designated pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes the Company shall
execute and the Trustee shall authenticate and deliver
-56-
in exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Global Notes.
------------
(a) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Note or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Note may be exchanged in whole or in part for Notes registered, and no transfer
of a Global Note in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Note or a nominee thereof
unless (i) such Depositary (A) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Note or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, and in either case
the Company fails to appoint a successor Depositary, (ii) the Company executes
and delivers to the Trustee a Company Order stating that it elects to cause the
issuance of the Notes in certificated form and that all Global Notes shall be
exchanged in whole for Securities that are not Global Notes (in which case such
exchange shall be effected by the Trustee) or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Note.
(c) If any Global Note is to be exchanged for other Notes or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Note is to be exchanged for
other Notes or cancelled in part, or if another Note is to be exchanged in whole
or in part for a
-57-
beneficial interest in any Global Note, then either (i) such Global Note shall
be so surrendered for exchange or cancellation as provided in this Article Three
or (ii) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal to the
principal amount of such other Note to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Trustee, as Security Registrar, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Note, the Trustee shall,
subject to Section 306(c) and as otherwise provided in this Article Three,
authenticate and deliver any Notes issuable in exchange for such Global Note (or
any portion thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph, the Company shall promptly make available
to the Trustee a reasonable supply of Notes that are not in the form of Global
Notes. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Three if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Note, unless
such Note is registered in the name of a Person other than the Depositary for
such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Note, shall be the Holder of such Global Note for all purposes under the
Indenture and the Notes, and owners of beneficial interests in a Global Note
shall hold
-58-
such interests pursuant to the Applicable Procedures. Accordingly, any such
owner's beneficial interest in a Global Note will be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and
------------------------------------------
Exchange Generally; Restrictions on Transfer
--------------------------------------------
and Exchange; Securities Act Legends.
------------------------------------
(a) Registration, Registration of Transfer and Exchange Generally.
-------------------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers and exchanges of Notes. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Notes and
transfers and exchanges of Notes as herein provided. Such Security Register
shall distinguish between Original Notes and Exchange Notes.
Upon surrender for registration of transfer of any Note at an office
or agency of the Company designated pursuant to Section 1002 for such purpose
and provided that the other requirements of this Section 306 have been
satisfied, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations, of a like aggregate principal amount
and bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 306, Notes may be exchanged for other Notes of any authorized
denominations, of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture upon surrender
-59-
of the Notes to be exchanged at any such office or agency. Whenever any Notes
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Notes which the Holder making the exchange
is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and (except for the differences between Original Notes and Exchange Notes
provided for herein) entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Sections 303, 304, 305, 307, 906, 1014, 1016 or 1108 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Note during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Notes selected
for redemption under Section 1104 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of or exchange any Note so
selected for redemption, in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(b) Certain Transfers and Exchanges. Notwith standing any other
-------------------------------
provision of this Indenture or the Notes,
-60-
transfers and exchanges of Notes and beneficial interests in a Global Note of
the kinds specified in this Section 306(b) shall be made only in accordance with
this Section 306(b).
(i) Restricted Global Note to Regulation S Global Note. If the
--------------------------------------------------
owner of a beneficial interest in the Restricted Global Note wishes at any
time to transfer such interest to a Person who wishes to acquire the same
in the form of a beneficial interest in the Regulation S Global Note
(whether before or after the expiration of the Restricted Period), such
transfer may be effected only in accordance with the provisions of this
Clause (b)(i) subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) an order given by the Depositary or
its authorized representative directing that a beneficial interest in the
Regulation S Global Note in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Restricted Global Note in an equal principal amount be debited from another
specified Agent Member's account and (B) a Regulation S Certificate,
satisfactory to the Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Note or his attorney duly
authorized in writing, then the Trustee, as Security Registrar shall reduce
the principal amount of the Restricted Global Note and increase the
principal amount of the Regulation S Global Note by such specified
principal amount as provided in Section 305(c).
(ii) Regulation S Global Note to Restricted Global Note. If the
--------------------------------------------------
owner of a beneficial interest in the Regulation S Global Note wishes at
any time to transfer such interest to a Person who wishes to acquire the
same in the form of a beneficial interest in the Restricted Global Note,
such transfer may be effected only in accordance with this Clause (b)(ii)
and subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (A) an order given by the Depositary or its
authorized representa-
-61-
▇▇▇▇ directing that a beneficial interest in the Restricted Global Note in
a specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Regulation S Global Note in
an equal principal amount be debited from another specified Agent Member's
account and (B) if before the expiration of the Restricted Period, a
Restricted Notes Certificate, satisfactory to the Trustee and duly executed
by the owner of such beneficial interest in the Regulation S Global Note or
his attorney duly authorized in writing, then the Trustee, as Security
Registrar, shall reduce the principal amount of the Regulation S Global
Note and increase the principal amount of the Restricted Global Note by
such specified principal amount as provided in Section 305(c).
(iii) Exchanges between Global Note and Non-Global Note. A
-------------------------------------------------
beneficial interest in a Global Note may be exchanged for a Note that is
not a Global Note as provided in Section 305, provided that, if such
--------
interest is a beneficial interest in the Restricted Global Note, or if such
interest is a beneficial interest in the Regulation S Global Note, then
such interest shall be exchanged for a Restricted Note (subject in each
case to Section 306(c)).
(c) Securities Act Legends. Rule 144A Notes and their respective
----------------------
Successor Notes shall bear a Restricted Notes Legend, and Regulation S Notes and
their Successor Notes shall bear a Regulation S Legend, subject to the
following:
(i) subject to the following Clauses of this Section 306(c), a
Note or any portion thereof which is exchanged, upon transfer or otherwise,
for a Global Note or any portion thereof shall bear the Securities Act
Legend borne by such Global Note while represented thereby;
(ii) subject to the following Clauses of this Section 306(c), a
new Note which is not a Global Note
-62-
and is issued in exchange for another Note (including a Global Note) or any
portion thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Note, provided that, if such new Note is
--------
required pursuant to Section 306(b)(iii) to be issued in the form of a
Restricted Note, it shall bear a Restricted Notes Legend and, if such new
Note is so required to be issued in the form of a Regulation S Note, it
shall bear a Regulation S Legend;
(iii) Exchange Notes shall not bear a Securities Act Legend;
(iv) at any time after the Notes may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Note which does
not bear a Securities Act Legend may be issued in exchange for or in lieu
of a Note (other than a Global Note) or any portion thereof which bears
such a legend if the Trustee has received an Unrestricted Notes
Certificate, satisfactory to the Trustee and duly executed by the Holder of
such legended Note or his attorney duly authorized in writing, and after
such date and receipt of such certificate, the Trustee shall authenticate
and deliver such a new Note in exchange for or in lieu of such other Note
as provided in this Article Three;
(v) a new Note which does not bear a Securities Act Legend may
be issued in exchange for or in lieu of a Note (other than a Global Note)
or any portion thereof which bears such a legend if, in the Company's
judgment, placing such a legend upon such new Note is not necessary to
ensure compliance with the registration requirements of the Securities Act,
and the Trustee, at the written direction of the Company, shall
authenticate and deliver such a new Note as provided in this Article Three;
and
(vi) notwithstanding the foregoing provisions of this Section
306(c), a Successor Note of a Note that
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does not bear a particular form of Securities Act Legend shall not bear
such form of legend unless the Company has reasonable cause to believe that
such Successor Note is a "restricted security" within the meaning of Rule
144, in which case the Trustee, at the written direction of the Company,
shall authenticate and deliver a new Note bearing a Restricted Notes Legend
in exchange for such Successor Note as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and
------------------------------
Stolen Notes.
------------
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like tenor and principal amount, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by either of them to save
each of them, and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Note has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Note, a new Note of like tenor and principal amount, and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
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expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 308. Payment of Interest; Interest
-----------------------------
Rights Preserved.
----------------
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such
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Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Note Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by
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such exchange, if, after written notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 308) interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Note in global form, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. Notwithstanding the foregoing,
with respect to any Note in global form, nothing herein shall prevent the
Company or the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
any Depositary (or its nominee), as a Holder, with respect to such Note in
global form or impair, as between such Depositary and owners of beneficial
interests in such Note in global form, the operation of customary practices
governing the exercise of
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the rights of such Depositary (or its nominee) as Holder of such Note in global
form.
SECTION 310. Cancellation.
------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange or any Offer to Purchase pursuant to Section 1014 or 1016
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any
Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Notes held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 311. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360 day year
of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to (i)
rights of registration of transfer and exchange and the Company's right of
optional redemption, (ii) substitution of apparently mutilated, defaced,
destroyed, lost or stolen Notes, (iii) rights of Holders to receive payment of
principal and interest on the Notes, (iv) rights, obligations and immunities of
the Trustee under the Indenture and (v) rights of the Holders of the Notes as
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beneficiaries of the Indenture with respect to any property deposited with the
Trustee payable to all or any of them), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 307 and (ii) Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
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and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Notes which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying
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Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee but such money need not be separated from other
funds except to the extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) failure to pay the principal of (or premium, if any, on) any Note
at its Maturity; or
(2) failure to pay any interest upon any Note when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(3) default, on the applicable Purchase Date, in the purchase of
Notes required to be purchased by the Company pursuant to an Offer to
Purchase as described in Section 1014 herein and Section 1016 herein when
due and payable; or
(4) failure to perform or comply with the provisions of Section 801;
or
(5) failure to perform any other covenant or agreement of the Company
in this Indenture or the Notes (other than a covenant or warranty a default
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in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Notes a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(6) default under the terms of any instrument evidencing or securing
Debt for money borrowed by the Company or any Restricted Subsidiary having
an outstanding principal amount of $15.0 million individually or in the
aggregate which default results in the acceleration of the payment of such
indebtedness or constitutes the failure to pay such indebtedness at final
maturity after expiration of any applicable grace period; or
(7) a final judgment or judgments (not subject to appeal) for the
payment of money are entered against the Company or any Restricted
Subsidiary of the Company in an amount in excess of $15.0 million by a
court or courts of competent jurisdiction, which judgments remain
undischarged or unstayed for a period of 60 days after the date on which
the right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Restricted
Subsidiary of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or any such
Restricted Subsidiary a bankrupt or insolvent, or approving
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as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any such
Restricted Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Restricted Subsidiary of any substantial part of the property of the
Company or any such Restricted Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any such Subsidiary, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Restricted Subsidiary of
the Company of a voluntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any such Restricted Subsidiary to the entry
of a decree or order for relief in respect of the Company or any Restricted
Subsidiary of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Restricted Subsidiary of the Company,
or the filing by the Company or any such Restricted Subsidiary of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company or any such
Restricted Subsidiary to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any Restricted
Subsidiary of the Company of any substantial part
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of the property of the Company or any Restricted Subsidiary of the Company,
or the making by the Company or any Restricted Subsidiary of the Company of
an assignment for the benefit of creditors, or the admission by the Company
or any such Restricted Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company or any such Restricted Subsidiary in furtherance of any such
action.
SECTION 502. Acceleration of Maturity; Rescission
------------------------------------
and Annulment.
-------------
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Notes may declare all of the Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal and any accrued
interest, if any, shall become immediately due and payable; provided, however,
that so long as any Senior Debt under the Senior Bank Facility is outstanding,
any such acceleration shall not be effective until the earlier of (a) five
Business Days after Notice of such acceleration is delivered to the
Administrative Agent for the Senior Bank Facility and (b) the acceleration of
any Senior Debt under the Senior Bank Facility. If an Event of Default
specified in Section 501(8) or (9) occurs, the principal and any accrued
interest on the Notes then Outstanding shall ipso facto become immediately due
and payable without any declaration or other Act on the part of the Trustee or
any Holder.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in aggregate principal amount of the Outstanding
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Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any Notes which
have become due otherwise than by such declaration of acceleration
(including any Notes required to have been purchased on the Purchase
Date pursuant to an Offer to Purchase made by the Company) and, to the
extent that payment of such interest is lawful, interest thereon at
the rate provided by the Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits
------------------------------------
for Enforcement by Trustee.
--------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Note when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Note at the Maturity thereof or, with respect to any Note
required to have been purchased pursuant to an Offer to Purchase made by
the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal (and premium, if any) and interest, and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate provided by the
Notes, if any, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company or any
other obligor upon the Notes, or upon the property of the Company or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims
--------------------------
Without Possession of Notes.
---------------------------
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the extent provided in Article Twelve, to the holders
of Senior Debt in accordance with Article Twelve; and
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on
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such Notes for principal (and premium, if any) and interest,
respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect,
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disturb or prejudice the rights of any other Holders, or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to
---------------------------------
Receive Principal, Premium and
------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 306)
interest on such Note on the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on the Redemption Date or in the case of an
Offer to Purchase made by the Company and required to be accepted as to such
Note, on the Purchase Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Inden ture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, 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.
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SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 307, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct in writing the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(1) such written direction shall not be in conflict with any rule of
law or with this Indenture, and
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes may on behalf of the Holders of all the Notes waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (including any Note which is required to have been
purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Inden ture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in
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any suit instituted by the Company or in any suit for the enforcement of the
right to convert any Note in accordance with Article Thirteen.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
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Except during the continuance of an Event of Default, the duties and
responsibilities of the Trustee shall be as expressly provided for in the
Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability
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is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
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The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Section 501(4), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
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Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that
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a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee
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shall not be responsible for any misconduct or negligence on the part of
any agent, attorney, custodian or nominee appointed with due care by it
hereunder;
(h) In the event that the Trustee is also acting as Paying Agent or
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article Six shall also be afforded to such Paying Agent or
Registrar; and
(i) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (i) a Responsible Officer shall have actual
knowledge of such Default or Event of Default or (ii) written notice of
such Default or Event of Default shall be given to the Trustee by the
Company or any Holder.
SECTION 604. Not Responsible for Recitals
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or Issuance of Notes.
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The recitals contained herein and in the Notes except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application
by the Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
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The Trustee, any Paying Agent, any Note Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 608 and 613, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar or such other agent.
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SECTION 606. Money Held in Trust.
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Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
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The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
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The obligations of the Company under this Section 607 to compensate
the Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall survive the discharge of this Indenture or the
earlier resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
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If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
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There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal;
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Appointment of Successor.
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(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
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(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
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Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and
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deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of the retiring Trustee, any such successor
Trustee and the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation
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or Succession to Business.
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Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 613. Preferential Collection
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of Claims Against Company.
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If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
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Names and Addresses of Holders.
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The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
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capacity as Note Registrar.
SECTION 702. Preservation of Information;
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Communications to Holders.
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(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes and the
corresponding rights
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and duties of the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
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(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than June 30 in each calendar year,
commencing in June 1999.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Notes are listed on any
stock exchange.
SECTION 704. Reports by Company
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The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 30
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days after the same is so required to be filed with the Commission.
SECTION 705. Officers' Certificate with Respect to Change
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in Interest Rates.
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Within five days after the day on which any Special Interest begins
accruing, and within five days after any Special Interest ceases to accrue, the
Company shall deliver an Officers' Certificate to the Trustee stating the
interest rate thereupon in effect for the Unregistered Notes (if any are
Outstanding) and the date on which such rate became effective.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain Sales of Assets.
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The Company shall not, in a single transaction or a series of related
transactions, (i) consolidate with or merge into any other Person or permit any
other Person to consolidate with or merge into the Company and (ii) directly or
indirectly, transfer, sell, lease or otherwise dispose of all or substantially
all of its assets unless: (1) in a transaction in which the Company does not
survive or in which the Company sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity to the Company is
organized under the laws of the United States of America or any State thereof or
the District of Columbia and shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee in form satisfactory to the Trustee, all
of the Company's obligations under the Indenture; (2) immediately before and
after giving effect to such transaction and treating any Debt which becomes an
obligation of the Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such Restricted Subsidiary
at the time of the transaction, no Event of Default or event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default shall have occurred and be continuing; (3) immediately after giving
effect to such transaction, the Consolidated Net Worth of the Company (or other
successor entity to the Company) is equal to or greater than that of the Company
immediately prior to the transaction; (4) immediately after giving effect to
such transaction and treating any Debt which becomes an obligation of the
Company or a Restricted Subsidiary as a result of such transaction as having
been Incurred by the Company or such Restricted Subsidiary at the time of the
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transaction, the Company (including any successor entity to the Company) could
Incur at least $1.00 of additional Debt pursuant to the provisions of this
Indenture described in the first paragraph under Section 1008 hereof; and (5)
the Company has delivered to the Trustee an Officer's Certificate and an Opinion
of Counsel (which Opinion of Counsel may rely, as to factual matters, on such
Officer's Certificate), each stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with, and, with respect to such
Officer's Certificate, setting forth the manner of determination of the
Consolidated Net Worth and the ability to Incur Debt in accordance with Clause
(4) of Section 801, the Company or, if applicable, of the Successor Company as
required pursuant to the foregoing.
SECTION 802. Successor Substituted.
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Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
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Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Notes.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
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Without Consent of Holders.
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Without the consent of any Holders, the Company, when authorized by a
Board Resolution of the Company, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Notes; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Notes pursuant to the requirements of Section 1011
or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to
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matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such action
pursuant to this Clause (5) shall not adversely affect the interests of the
Holders in any material respect.
SECTION 902. Supplemental Indentures
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with Consent of Holders.
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With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution
of the Company and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Note, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable thereon, or change the
place of payment where, or the coin or currency in which, any Note or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of an Offer to Purchase which has been
made, on or after the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such
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supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1020, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby, or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Notes in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
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Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any supplemental indenture, the Trustee shall join
the Company in the execution of any supplemental indenture authorized or
permitted by this Indenture and shall make any further appropriate agreements
and stipulations as may be contained therein.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
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be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
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Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
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Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Notes to
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Supplemental Indentures.
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Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
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ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
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Interest.
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The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Notes in accordance with the terms of the
Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
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The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company will give prompt written
notice to the Trustee of any such
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designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Note
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Payments to be Held in Trust.
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If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of interest on any of the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Notes, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the
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Notes) in the making of any payment of principal (and premium, if any) or
interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
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SECTION 1004. Existence.
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Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary of the Company to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor,
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materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature insured against
loss or damage with insurers believed by the Company to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice. The Company shall, and shall cause its Subsidiaries to, use the
proceeds from any such insurance policy to repair, replace or otherwise restore
the property to which such proceeds relate.
SECTION 1008. Limitation on Consolidated Debt.
-------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, Incur any Debt unless immediately after giving pro forma effect
to the Incurrence of such Debt and the receipt and application of the proceeds
thereof, the Consolidated Cash Flow Coverage Ratio of the Company would be
greater than 2.0 to 1; provided that if the Debt which is the subject of the
determination under this provision is Acquired Debt, the Consolidated Cash Flow
Coverage Ratio of the Company shall be determined by giving effect (on a pro
forma basis, as if the transaction had occurred at the beginning of the
immediately preceding four-quarter period) to both the Incurrence or assumption
of such Acquired Debt by the Company and the inclusion in the Consolidated Cash
Flow Available for Fixed Charges of the Person whose Debt would constitute
Acquired Debt.
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Notwithstanding the foregoing paragraph, the Company may, and may
permit any Restricted Subsidiary, to incur the following Debt:
(i) Debt under the Senior Bank Facility in an aggregate principal
amount at any one time not to exceed $1.0 billion, less any amounts by
which any revolving credit facility commitments under the Senior Bank
Facility are permanently reduced pursuant to Section 1014 (so long as and
to the extent that any required payments in connection therewith are
actually made);
(ii) Debt owed by the Company to any Wholly Owned Restricted
Subsidiary of the Company or Debt owed by a Subsidiary of the Company to
the Company or a Wholly Owned Restricted Subsidiary of the Company;
provided, however, that (a) any such Debt owing by the Company to a Wholly
Owned Restricted Subsidiary shall be Subordinated Debt evidenced by an
intercompany promissory note and (b) upon either (1) the transfer or other
disposition by such Wholly Owned Restricted Subsidiary or the Company of
any Debt so permitted to a Person other than the Company or another Wholly
Owned Restricted Subsidiary of the Company or (2) the issuance (other than
directors' qualifying shares), sale, lease, transfer or other disposition
of shares of Capital Stock (including by consolidation or merger) of such
Wholly Owned Restricted Subsidiary to a Person other than the Company or
another such Wholly Owned Restricted Subsidiary, the provisions of this
Clause (ii) shall no longer be applicable to such Debt and such Debt shall
be deemed to have been Incurred at the time of such transfer or other
disposition;
(iii) the original issuance by the Company of the Debt evidenced by
the Notes (including any Exchange Notes);
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(iv) Debt (other than Debt described in another clause of this
paragraph) outstanding on the date of original issuance of the Notes after
giving effect to the application of the proceeds of the Notes as described
in Schedule I to this Indenture;
(v) Debt consisting of Permitted Interest Rate, Currency or
Commodity Price Agreements;
(vi) Debt which is exchanged for or the proceeds of which are used to
refinance or refund, or any extension or renewal of, outstanding Debt
Incurred pursuant to the preceding paragraph or clauses (iii) or (iv) of
this paragraph (each of the foregoing, a "refinancing") in an aggregate
principal amount not to exceed the principal amount of the Debt so
refinanced plus the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the Debt so refinanced or
the amount of any premium (including consent payments) reasonably
determined by the Company as necessary to accomplish such refinancing by
means of a tender offer or privately negotiated repurchase, plus the
expenses of the Company or the Restricted Subsidiary, as the case may be,
incurred in connection with such refinancing; provided, however, that (A)
Debt the proceeds of which are used to refinance the Notes or Debt which is
pari passu with or subordinate in right of payment to the Notes shall only
be permitted if (x) in the case of any refinancing of the Notes or Debt
which is pari passu to the Notes, the refinancing Debt is made pari passu
to the Notes or subordinated to the Notes, and (y) in the case of any
refinancing of Debt which is subordinated to the Notes, the refinancing
Debt constitutes Subordinated Debt; (B) the refinancing Debt by its terms,
or by the terms of any agreement or instrument pursuant to which such Debt
is issued, (1) does not provide for payments of principal of such Debt at
the stated maturity
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thereof or by way of a sinking fund applicable thereto or by way of any
mandatory redemption, defeasance, retirement or repurchase thereof
(including any redemption, defeasance, retirement or repurchase which is
contingent upon events or circumstances, but excluding any retirement
required by virtue of acceleration of such Debt upon any event of default
thereunder), in each case prior to the stated maturity of the Debt being
refinanced and (2) does not permit redemption or other retirement
(including pursuant to an offer to purchase) of such debt at the option of
the holder thereof prior to the final stated maturity of the Debt being
refinanced), other than a redemption or other retirement at the option of
the holder of such Debt (including pursuant to an offer to purchase) which
is conditioned upon provisions substantially similar to those described
under Sections 1014 and 1016; and (C) in the case of any refinancing of
Debt Incurred by the Company, the refinancing Debt may be Incurred only by
the Company, and in the case of any refinancing of Debt Incurred by a
Restricted Subsidiary, the refinancing Debt may be Incurred only by such
Restricted Subsidiary; provided, further, that Debt Incurred pursuant to
this clause (vi) may not be Incurred more than 45 days prior to the
application of the proceeds to repay the Debt to be refinanced;
(vii) Acquired Debt, provided that such Debt if incurred by the
Company would be in compliance with the first paragraph of this covenant;
and
(viii) Debt not otherwise permitted to be Incurred pursuant to
Clauses (i) through (vii) above, which, together with any other outstanding
Debt Incurred pursuant to this Clause (viii), has an aggregate principal
amount not in excess of $50.0 million at any time outstanding.
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SECTION 1009. Limitation on Senior Subordinated Debt.
--------------------------------------
The Company shall not Incur any Debt which by its terms is both (i)
subordinated in right of payment to any Senior Debt and (ii) senior in right of
payment to the Notes.
SECTION 1010. Limitation on Issuance of Guarantees of Subordinated Debt.
---------------------------------------------------------
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to assume, guarantee or in any other manner become liable with
respect to any Debt of the Company that by its terms is pari passu or junior in
right of payment to the Notes.
SECTION 1011. Limitation on Liens.
-------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, incur, assume or suffer to exist any Lien on or with respect to any
property or assets of the Company or any such Restricted Subsidiary now owned or
hereafter acquired except for (i) Liens incurred after the date of the Indenture
securing Debt of the Company that ranks pari passu or junior in right of payment
to the Notes, if the Notes are secured equally and ratably with such Debt, (ii)
Liens outstanding on the date of the Indenture, (iii) Liens for taxes,
assessments, governmental charges or claims not yet delinquent or which are
being contested in good faith by appropriate proceedings, provided, that
adequate reserves with respect thereto are maintained on the books of the
Company or its Restricted Subsidiaries, as the case may be, in conformity with
generally accepted accounting principles, (iv) landlords', carriers',
warehousemen's, mechanics', material men's, repairmen's or the like Liens
arising by contract or statute in the ordinary course of business and with
respect to amounts which are not yet delinquent or are being contested in good
faith by appropriate proceedings, (v) pledges or deposits made in the ordinary
course of business (A) in connection
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with leases, performance bonds and similar obligations, or (B) in connection
with workers' compensation, unemployment insurance and other social security
legislation, (vi) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar encumbrances which, in the aggregate,
do not materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company or
such Restricted Subsidiary, (vii) any attachment or judgment Lien that does not
constitute an Event of Default, (viii) Liens securing Acquired Debt, provided,
that such Liens attach solely to the acquired assets or the assets of the
acquired entity and do not extend to or cover any other assets of the Company or
any of its Restricted Subsidiaries, (ix) Liens to secure Senior Debt, (x) Liens
in favor of the Trustee for its own benefit and for the benefit of the Holders,
(xi) any interest or title of a lessor pursuant to a lease constituting a
Capital Lease Obligation, (xii) pledges or deposits made in connection with
acquisition agreements or letters of intent entered into in respect of a
proposed acquisition; (xiii) Liens in favor of prior holders of leases on
property acquired by the Company or of sublessors under leases on the Company
property; (xiv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, banker's
acceptances, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment of
borrowed money); (xv) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the date of the Indenture; provided
that (a) such Lien is created solely for the purpose of securing Debt incurred,
in accordance with Section 1008, (1) to finance the cost (including the cost of
improvement or construction) of the item, property or assets subject thereto and
such Lien is created prior to, at the time of or within six months after the
later of the acquisition, the completion of construction or the commencement of
full operation of such property or (2) to refinance any Debt previously so
secured, (b) the principal amount of the Debt secured by such Lien does not
exceed 100%
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of such cost and (c) any such Lien shall not extend to or cover any property or
assets other than such item of property or assets and any improvements on such
item; (xvi) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xvii) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xviii) Liens on property
of, or on shares of stock or Debt of, any Person existing at the time such
Person becomes, or becomes a part of, any Restricted Subsidiary, provided that
such Liens do not extend to or cover any property or assets of the Company or
any Restricted Subsidiary other than the property or assets acquired; (xix)
Liens in favor of the Company or any Restricted Subsidiary; (xx) Liens
encumbering deposits securing Debt under Permitted Interest Rate, Currency or
Commodity Price Agreements; (xxi) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods entered
into by the Company or any of its Restricted Subsidiaries in the ordinary course
of business in accordance with the past practices of the Company and its
Restricted Subsidiaries; (xxii) Liens on or sales of receivables; (xxiii) the
rights of film distributors under film licensing contracts entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of business
on a basis customary in the movie exhibition industry; (xxiv) Liens arising from
licenses of patents, trademarks and other intellectual property rights granted
in the ordinary course of business and not interfering in any material respect
with the ordinary conduct of business of the Company and its Subsidiaries; and
(xxv) any renewal of or substitution of any Liens permitted by any of the
preceding clauses, provided that the Debt secured is not increased (other than
by any premium and accrued interest, plus customary fees, consent payments,
expenses and costs related to such renewal or substitution of Liens or the
incurrence of any related refinancing of Debt) and the Liens are not extended to
any additional assets (other than proceeds and accessions). This covenant does
not authorize the incurrence of any Debt not otherwise permitted by Section
1008.
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SECTION 1012. Limitation on Restricted Payments.
---------------------------------
The Company (i) shall not, directly or indirectly, declare or pay any
dividend or make any distribution (including any payment in connection with any
merger or consolidation derived from assets of the Company or any Restricted
Subsidiary) in respect of its Capital Stock or to the holders thereof, excluding
any dividends or distributions by the Company payable solely in shares of its
Capital Stock (other than Redeemable Stock) or in options, warrants or other
rights to acquire its Capital Stock (other than Redeemable Stock), (ii) shall
not, and shall not permit any Restricted Subsidiary to, purchase, redeem, or
otherwise acquire or retire for value (a) any Capital Stock of the Company or
any Related Person of the Company or (b) any options, warrants or other rights
to acquire shares of Capital Stock of the Company or any Related Person of the
Company or any securities convertible or exchangeable into shares of Capital
Stock of the Company or any Related Person of the Company, (iii) shall not make,
or permit any Restricted Subsidiary to make, any Investment other than a
Permitted Investment, and (iv) shall not, and shall not permit any Restricted
Subsidiary to, redeem, repurchase, defease or otherwise acquire or retire for
value prior to any scheduled maturity, repayment or sinking fund payment Debt of
the Company which is subordinate in right of payment to the Notes (each of
clauses (i) through (iv) being a "Restricted Payment") if: (1) an Event of
Default, or an event that with the passing of time or the giving of notice, or
both, would constitute an Event of Default, shall have occurred and is
continuing or would result from such Restricted Payment, or (2) after giving pro
forma effect to such Restricted Payment as if such Restricted Payment had been
made at the beginning of the applicable four-fiscal-quarter period, the Company
could not Incur at least $1.00 of additional Debt pursuant to the terms of the
Indenture described in the first paragraph of Section 1008 hereof, or (3) upon
giving effect to such Restricted Payment, the aggregate of all Restricted
Payments from the date of issuance of the Notes exceeds the sum of: (a) 50% of
cumulative Consolidated Net Income (or, in the case Consolidated Net Income
shall be negative, less 100% of such
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deficit) of the Company since the date of issuance of the Notes through the last
day of the last full fiscal quarter ending immediately preceding the date of
such Restricted Payment for which quarterly or annual financial statements are
available (taken as a single accounting period); plus (b) $75.0 million;
provided, however, that the Company or a Restricted Subsidiary may make any
Restricted Payment with the aggregate net proceeds received by the Company after
the date of original issuance of the Notes, including the fair market value of
property other than cash (determined in good faith by the Board of Directors as
evidenced by a resolution of the Board of Directors filed with the Trustee),
from contributions of capital or the issuance and sale (other than to a
Restricted Subsidiary) of Capital Stock (other than Redeemable Stock) of the
Company, options, warrants or other rights to acquire Capital Stock (other than
Redeemable Stock) of the Company and Debt of the Company that has been converted
into or exchanged for Capital Stock (other than Redeemable Stock and other than
by or from a Restricted Subsidiary) of the Company after the date of original
issuance of the Notes, provided that any such net proceeds received by the
Company from an employee stock ownership plan financed by loans from the Company
or a Restricted Subsidiary of the Company shall be included only to the extent
such loans have been repaid with cash on or prior to the date of determination.
Not less than semiannually, the Company shall deliver to the Trustee an
Officers' Certificate setting forth any Restricted Payments made since the last
period for which such certificate has been delivered, and the computations by
which the determinations required by clauses (2) and (3) above were made and
stating that no Event of Default, or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default, has occurred
and is continuing or will result from such Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or
event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is continuing or would
result therefrom, (i) the Company may pay any dividend on Capital Stock of any
class within 60 days after the
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declaration thereof if, on the date when the dividend was declared, the Company
could have paid such dividend in accordance with the foregoing provisions; (ii)
the Company may refinance any Debt otherwise permitted by clause (vi) of the
second paragraph under Section 1008 above or solely in exchange for or out of
the net proceeds of the substantially concurrent sale (other than from or to a
Restricted Subsidiary or from or to an employee stock ownership plan financed by
loans from the Company or a Restricted Subsidiary of the Company) of shares of
Capital Stock (other than Redeemable Stock) of the Company, provided that the
amount of net proceeds from such exchange or sale shall be excluded from the
calculation of the amount available for Restricted Payments pursuant to the
preceding paragraph; (iii) the Company may purchase, redeem, acquire or retire
any shares of Capital Stock of the Company solely in exchange for or out of the
net proceeds of the substantially concurrent sale (other than from or to a
Restricted Subsidiary or from or to an employee stock ownership plan financed by
loans from the Company or a Restricted Subsidiary of the Company) of shares of
Capital Stock (other than Redeemable Stock) of the Company; (iv) the Company or
a Restricted Subsidiary may purchase or redeem any Debt from Net Available
Proceeds to the extent permitted under Section 1014; and (v) the Company and its
Restricted Subsidiaries may make Investments, in an aggregate amount not to
exceed $200.0 million outstanding at any time, in entities engaging in owning,
leasing, developing or constructing motion picture theaters or principally
engaged in the business of exhibiting motion pictures. Any payment made pursuant
to clause (i), (iii) or (v) of this paragraph shall be a Restricted Payment for
purposes of calculating aggregate Restricted Payments pursuant to the preceding
paragraph.
SECTION 1013. Limitations on Dividend and Other Payment
-----------------------------------------
Restrictions Affecting Subsidiaries.
-----------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
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
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Subsidiary of the Company (i) to pay dividends (in cash or otherwise) or make
any other distributions in respect of its Capital Stock or pay any Debt or other
obligation owed to the Company or any other Restricted Subsidiary; (ii) to make
loans or advances to the Company or any other Restricted Subsidiary; or (iii) to
transfer any of its property or assets to the Company or any other Restricted
Subsidiary. Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, suffer to exist any such encumbrance or restriction
(a) pursuant to any agreement in effect on the date of original issuance of the
Notes; (b) pursuant to an agreement relating to any Debt Incurred by a Person
(other than a Restricted Subsidiary of the Company existing on the date of
original issuance of the Notes or any Restricted Subsidiary carrying on any of
the businesses of any such Restricted Subsidiary) prior to the date on which
such Person became a Restricted Subsidiary of the Company and outstanding on
such date and not Incurred in anticipation of becoming a Restricted Subsidiary,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person so acquired; (c)
pursuant to an agreement effecting a renewal, refunding or extension of Debt
Incurred pursuant to an agreement referred to in clause (a) or (b) above,
provided, however, that the provisions contained in such renewal, refunding or
extension agreement relating to such encumbrance or restriction are no more
restrictive in any material respect than the provisions contained in the
agreement the subject thereof, as determined in good faith by the Board of
Directors; (d) in the case of clause (iii) above, restrictions contained in any
security agreement (including a capital lease) securing Debt of a Restricted
Subsidiary otherwise permitted under this Indenture, but only to the extent such
restrictions restrict the transfer of the property subject to such security
agreement; (e) in the case of clause (iii) above, customary nonassignment
provisions entered into in the ordinary course of business consistent with past
practices in leases and other contracts to the extent such provisions restrict
the transfer or subletting or licensing of any such lease or the assignment of
rights under any such contract; (f) any restriction with respect to a Restricted
Subsidiary of the Company imposed
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pursuant to an agreement which has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary, provided that consummation of such transaction would not result in
an Event of Default or an event that, with the passing of time or the giving of
notice or both, would constitute an Event of Default, that such restriction
terminates if such transaction is closed or abandoned and that the closing or
abandonment of such transaction occurs within one year of the date such
agreement was entered into; or (g) such encumbrance or restriction is the result
of applicable corporate law or regulation relating to the payment of dividends
or distributions.
SECTION 1014. Limitation on Asset Disposition.
-------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition in one or more related transactions unless: (i)
the Company or the Restricted Subsidiary, as the case may be, receives
consideration for such disposition at least equal to the fair market value for
the assets sold or disposed of as determined by the Board of Directors in good
faith; (ii) at least 75% of the consideration for such disposition consists of
cash or readily marketable cash equivalents or Qualifying Theater Assets or the
assumption of Debt (other than Debt that is subordinated to the Notes) relating
to such assets and release from all liability on the Debt assumed; and (iii) all
Net Available Proceeds, less any amounts invested or committed to be invested
within 360 days of such disposition in assets related to the business of the
Company, are applied within 360 days of such disposition (1) first, to the
permanent repayment or reduction of Senior Debt then outstanding under any
agreements or instruments which would require such application or prohibit
payments pursuant to clause (2) following, (2) second, to the extent of
remaining Net Available Proceeds, to make an Offer to Purchase Outstanding Notes
at 100% of their principal amount plus accrued interest to the date of purchase
and, to the extent required by the terms thereof, any other Debt of the Company
that is pari passu with the Notes at a price no
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greater than 100% of the principal amount thereof plus accrued interest to the
date of purchase, (3) third, to the extent of any remaining Net Available
Proceeds following the completion of the Offer to Purchase, to the repayment of
other Debt of the Company or Debt of a Restricted Subsidiary of the Company, to
the extent permitted under the terms thereof and (4) fourth, to the extent of
any remaining Net Available Proceeds, to any other use as determined by the
Company which is not otherwise prohibited by this Indenture.
SECTION 1015. Transactions with Affiliates
----------------------------
and Related Persons.
-------------------
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, enter into any transaction (or series of related
transactions) with an Affiliate or Related Person of the Company (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company), including any
Investment, either directly or indirectly, unless such transaction is on terms
no less favorable to the Company or such Restricted Subsidiary than those that
could be obtained in a comparable arm's-length transaction with an entity that
is not an Affiliate or Related Person. For any transaction that involves in
excess of $1.0 million but less than or equal to $5.0 million, the Chief
Executive Officer of the Company shall determine that the transaction satisfies
the above criteria and shall evidence such a determination by a certificate
filed with the Trustee. For any transaction that involves in excess of $5.0
million, a majority of the disinterested members of the Board of Directors shall
determine that the transaction satisfies the above criteria and shall evidence
such a determination by a Board Resolution filed with the Trustee. For any
transaction that involves in excess of $10.0 million, the Company shall also
obtain an opinion from a nationally recognized expert with experience in
appraising the terms and conditions of the type of transaction (or series of
related transactions) for which the opinion is required stating that such
transaction (or series of related transactions) is on terms no less favorable to
the Company or such Restricted Subsidiary than those that could be
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obtained in a comparable arm's-length transaction with an entity that is not an
Affiliate or Related Person of the Company, which opinion shall be filed with
the Trustee.
Notwithstanding anything to the contrary contained in this Indenture,
the foregoing provisions shall not apply to (i) transactions with any employee,
officer or director of the Company or any of its Restricted Subsidiaries
pursuant to employee benefit plans or compensation arrangements or agreements
entered into in the ordinary course of business, (ii) transactions with any
Affiliate or Related Person in which such Affiliate or Related Person acquires
or purchases the capital stock of the Company or any Restricted Subsidiary at
fair market value, (iii) commercial transactions, including without limitation
film rentals, in the ordinary course of business with Affiliates of the Company
on terms that are customary in the motion picture exhibition industry or
consistent with past practice, or (iv) the performance of any agreement as in
effect on the date of original issuance of the Notes.
SECTION 1016. Change of Control.
-----------------
Within 30 days of the occurrence of a Change of Control, the Company
will be required to make an Offer to Purchase all Outstanding Notes at a
purchase price equal to 101% of their principal amount plus accrued and unpaid
interest, if any, to the date of purchase. A "Change of Control" will be deemed
to have occurred at such time as either (a) any Person (other than a Permitted
Holder) or any Persons acting together that would constitute a "group" (a
"Group") for purposes of Section 13(d) of the Exchange Act, or any successor
provision thereto (other than Permitted Holders), together with any Affiliates
or Related Persons thereof, shall beneficially own (within the meaning of Rule
13d-3 under the Exchange Act, or any successor provision thereto), directly or
indirectly, at least 50% of the aggregate voting power of all classes of Voting
Stock of the Company (for the purposes of this clause (a) a person shall be
deemed to beneficially own the Voting Stock of a corporation that is
beneficially owned (as defined above) by
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another corporation (a "parent corporation"), if such person beneficially owns
(as defined above) at least 50% of the aggregate voting power of all classes of
Voting Stock of such parent corporation); or (b) any Person or Group (other than
Permitted Holders), together with any Affiliates or Related Persons thereof,
shall succeed in having a sufficient number of its nominees elected to the Board
of Directors of the Company such that such nominees, when added to any existing
director remaining on the Board of Directors of the Company after such election
who was a nominee of or is an Affiliate or Related Person of such Person or
Group, will constitute a majority of the Board of Directors of the Company.
In the event that the Company makes an Offer to Purchase the Notes,
the Company intends to comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 1017. Provision of Financial Information.
----------------------------------
For so long as any of the Notes are outstanding, the Company shall
file with the Commission the annual reports, quarterly reports and other
documents which a reporting company is required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act or any successor
provisions thereto.
SECTION 1018. Unrestricted Subsidiaries.
-------------------------
The Company may designate any Subsidiary of the Company to be an
"Unrestricted Subsidiary" as provided below in which event such Subsidiary and
each other Person that is then or thereafter becomes a Subsidiary of such
Subsidiary will be deemed to be an Unrestricted Subsidiary. "Unrestricted
Subsidiary" means (1) any Subsidiary designated as such by the Board of
Directors as set forth below where (a) neither the Company nor any of its other
Subsidiaries (other than another Unrestricted Subsidiary)
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(i) provides credit support for, or any Guarantee of, any Debt of such
Subsidiary or any Subsidiary of such Subsidiary (including any undertaking,
agreement or instrument evidencing such Debt) or (ii) is directly or indirectly
liable for any Debt of such Subsidiary or any Subsidiary of such Subsidiary, and
(b) no default with respect to any Debt of such Subsidiary or any Subsidiary of
such Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Debt of the Company and its Subsidiaries
(other than another Unrestricted Subsidiary) to declare a default on such other
Debt or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity and (2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary, provided that either (x) the Subsidiary to be so designated has
total assets of $1,000 or less or (y) immediately after giving effect to such
designation, the Company could Incur at least $1.00 of additional Debt pursuant
to the first paragraph under Section 1008 hereof and provided, further, that the
Company could make a Restricted Payment in an amount equal to the greater of the
fair market value and book value of such Subsidiary pursuant to Section 1012
hereof and such amount is thereafter treated as a Restricted Payment for the
purpose of calculating the aggregate amount available for Restricted Payments
thereunder.
SECTION 1019. Statement by Officers as to Default;
-----------------------------------
Compliance Certificates.
-----------------------
(a) The Company will deliver to the Trustee, within 90 days after the
end of each fiscal quarter of the Company ending after the date hereof an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the
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performance and observance of any of the terms, provisions and conditions of
Section 801 or Sections 1004 to 1018, inclusive, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Notes as they relate to accounting matters,
and (B) whether, in connection with their audit examination, any event which,
with notice or the lapse of time or both, would constitute an Event of Default
has come to their attention and, if such a default has come to their attention,
specifying the nature and period of the existence thereof.
SECTION 1020. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1018, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Notes shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in
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respect of any such covenant or condition shall remain in full force and effect;
provided, however, with respect to an Offer to Purchase as to which an Offer has
been mailed, no such waiver may be made or shall be effective against any Holder
tendering Notes pursuant to such Offer, and the Company may not omit to comply
with the terms of such Offer as to such Holder.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.
-------------------
The Notes may be redeemed at the option of the Company, in whole or in
part, at any time on or after ______________, 2003, and prior to maturity, at
the Redemption Prices specified in the form of Note hereinbefore set forth
together with accrued interest to, but excluding, the Redemption Date.
In addition, if on or before ______________, 2001 the Company receives
net proceeds from the sale of its Common Stock in one or more Public Equity
Offerings, the Company may, at its option, use an amount equal to all or a
portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 33 1/3% of the original aggregate principal amount of the Notes,
provided, however, that Notes having a principal amount equal to at least 66
2/3% of the original aggregate principal amount of the Notes remain outstanding
after such redemption. Such redemption must occur on a Redemption Date within 90
days of such sale and upon not less than 30 or more than 60 days' notice mailed
to each Holder of Notes to be redeemed at such Holder's address appearing in the
Note Register, in amounts of $1,000 or an integral multiple of $1,000, at a
redemption price of ___% of the principal amount of the Notes plus accrued and
unpaid interest, if any, to but excluding the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
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If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the particular
Notes to be redeemed or any portion thereof that is an integral multiple of
$1,000.
The Notes will not have the benefit of any sinking fund.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Notes at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Notes pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Notes, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date and of the principal amount of Notes to be redeemed.
SECTION 1104. Selection by Trustee of Notes to Be
-----------------------------------
Redeemed.
--------
If less than all the Notes are to be redeemed, the particular Notes to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Notes of a denomination
larger than $1,000.
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The Trustee shall promptly notify the Company and each Note Registrar
in writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at his address appearing in the
Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price plus accrued interest, if any,
(3) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Note to be redeemed and that interest thereon
will cease to accrue on and after said date, and
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(5) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Notes which
are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
--------------------------------
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price plus accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Company at the Redemption Price together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
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If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Note.
SECTION 1108. Notes Redeemed in Part.
----------------------
Any Note which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such ▇▇▇▇▇▇, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt.
--------------------------------
The Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article ▇▇▇▇▇▇▇▇), the payment of the principal of (and
premium, if any) and interest on each and all of the Notes are hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Debt of the Company.
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SECTION 1202. Payment Over of Proceeds Upon Dissolution,
------------------------------------------
Etc.
----
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive or retain payment in full of all amounts due or to become
due on or in respect of all Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, before the Holders of the Notes are entitled to receive
any payment or distribution of any kind or character, whether in cash, property
or securities, on account of principal of (or premium, if any) or interest on or
other obligations in respect of the Notes or on account of any purchase or other
acquisition of Notes by the Company or any Subsidiary of the Company (all such
payments, distributions, purchases and acquisitions herein referred to,
individually and collectively, as a "Notes Payment"), and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Notes Payment which may be payable or deliverable in
respect of the Notes in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Note shall have received any Notes
Payment before all Senior Debt of the Company is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of such Debt, and if such fact shall, at or prior to the time of
such Notes Payment,
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have been made known to the Trustee or, as the case may be, such Holder, then
and in such event such Notes Payment shall be paid over or delivered forthwith
to the trustee in bankruptcy or other person making payment or distribution of
assets of the Company for the application to the payment of all Senior Debt
remaining unpaid, to the extent necessary to pay the Senior Debt in full in cash
or Cash Equivalents or otherwise in a manner satisfactory to the holders of such
Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Notes are so subordinated as
provided in this Article. The consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of
its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in
------------------------------
Default.
-------
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then
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no Notes Payment shall be made unless and until such Senior Payment Default
shall have been cured or waived or shall have ceased to exist or all amounts
then due and payable in respect of Senior Debt shall have been paid in full, or
provision shall have been made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt. "Senior
Payment Default" means any default in the payment of principal of (or premium,
if any) or interest on Designated Senior Debt when due, whether at the due date
of any such payment or by declaration of acceleration, call for redemption or
otherwise.
Upon the occurrence of a Senior Nonmonetary Default and receipt of
written notice by the Company and the Trustee of the occurrence of such Senior
Nonmonetary Default from any holder of Designated Senior Debt, (or any trustee,
agent or other representative for such holder) which is the subject of such
Senior Nonmonetary Default, no payments on account of principal of, premium, if
any, or interest on, or in respect of the purchase or other acquisition of, the
Notes, and no defeasance of the Notes, may be made for a period (the "Payment
Blockage Period") commencing on the date of the receipt of such notice and
ending the earlier of (i) the date on which such Senior Nonmonetary Default
shall have been cured or waived or ceased to exist or all Designated Senior Debt
the subject of such Senior Nonmonetary Default shall have been discharged and
(ii) the 179th day after the date of the receipt of such notice. No Senior
Nonmonetary Default that existed or was continuing on the date of the
commencement of a Payment Blockage Period may be made the basis of the
commencement of a subsequent Payment Blockage Period whether or not within a
period of 360 consecutive days, unless such Senior Nonmonetary Default shall
have been cured for a period of not less than 90 consecutive days; provided,
however, any breach of any financial covenant for a period commencing after the
expiration of a Payment Blockage Period that would give rise to a new event of
default, even though such breach is a breach of a provision under which a prior
event of default previously existed, shall constitute a new event of default for
this purpose. In any event, notwithstanding the foregoing, no more than one
Payment Blockage Period may be
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commenced during any 360-day period and there shall be a period of at least 181
days during each 360-day period when no Company Payment Blockage Period is in
effect. "Senior Nonmonetary Default" means the occurrence or existence and
continuance of an event of default with respect to Senior Debt, other than a
Senior Payment Default, permitting the holders of the Designated Senior Debt (or
a trustee or other agent on behalf of the holders thereof) then to declare such
Designated Senior Debt due and payable prior to the date on which it would
otherwise become due and payable.
The failure to make any payment on the Notes by reason of the
provisions of this Article Twelve will not be construed as preventing the
occurrence of an Event of Default with respect to the Notes arising from any
such failure to make payment. Upon termination of any period of Payment
Blockage Period the Company shall resume making any and all required payments in
respect of the Notes, including any missed payments.
In the event that, notwithstanding the foregoing, the Company shall
make any Notes Payment to the Trustee or any Holder prohibited by the foregoing
of this Section, and if such fact shall, at or prior to the time of such Notes
Payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such Notes Payment shall be paid over and
delivered forthwith to the holders of the Senior Debt of the Company.
By reason of such subordination, in the event of insolvency by the
Company, creditors of the Company who are not holders of Senior Debt or of the
Notes may recover less, ratably, than holders of Senior Debt and more, ratably,
than Holders of the Notes.
The subordination provisions described in this Article will not be
applicable to payments in respect of the Notes from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Notes as described under Article Thirteen.
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The provisions of this Section shall not apply to any Notes Payment
with respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Notes shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1202 or under the conditions
described in Section 1203, from making Notes Payments, or (b) the application by
the Trustee of any money deposited with it hereunder to Notes Payments or the
retention of such Notes Payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such Notes Payment
would have been prohibited by the provisions of this Article.
SECTION 1205. Subrogation to Rights of Holders of Senior
------------------------------------------
Debt.
----
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt of the Company or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, the Holders of the Notes shall be subrogated to the rights of the
holders of such Debt to receive payments and distributions of cash, property and
securities applicable to such Debt until the principal of (and premium, if any)
and interest on the Notes shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
the Company of any cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Notes or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Debt and the Holders of
the Notes, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt of the Company.
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SECTION 1206. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Notes is intended to or shall (a) impair,
as among the Company, its creditors other than holders of Senior Debt and the
Holders of the Notes, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Notes the principal of
(and premium, if any) and interest on the Notes as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Notes and creditors of
the Company other than the holders of Senior Debt; or (c) prevent the Trustee or
the Holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1207. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by
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any act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Notes, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Notes to the holders of Senior Debt, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
SECTION 1209. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company or
a holder of Senior Debt or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of
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Section 601, shall be entitled in all respects to assume that no such facts
exist.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1210. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
-----------------
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee, subject to the provisions of
Section 601, and the Holders of the Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Notes, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
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SECTION 1211. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Debt.
----
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Notes or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article or otherwise.
SECTION 1212. Rights of Trustee as Holder of Senior
-------------------------------------
Debt; Preservation of Trustee's Rights.
--------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1212 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
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SECTION 1214. Defeasance of This Article Twelve.
----------------------------------
The subordination of the Notes provided by this Article Twelve is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Thirteen hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such defeasance or covenant defeasance, the Notes
then outstanding shall thereupon cease to be subordinated pursuant to this
Article Twelve.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or
----------------------------------------
Covenant Defeasance.
-------------------
The Company may at its option by Board Resolution, at any time, in
accordance with the Exchange and Registration Rights Agreement, elect to have
either Section 1302 or Section 1303 applied to the Outstanding Notes upon
compliance with the conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Notes, and the provisions
of Article Eleven and Twelve hereof shall cease to be effective, on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Notes and to
have satisfied all its other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive
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until otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Notes to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest on such Notes when such payments are due, (B)
the Company's obligations with respect to such Notes under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1018, inclusive, and Clauses (3), (4)
and (5) of Section 801, (ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (1), (3), (4) or (5) of Section 801),
501(5) (with respect to any of Sections 1005 through 1018, inclusive), 501(6)
and 501(7) shall not be deemed to be an Event of Default and (iii) the
provisions of Article Twelve hereof shall cease to be effective on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of any reference in any such
Section, Clause or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Notes shall be unaffected
thereby.
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SECTION 1304. Conditions to Defeasance or
---------------------------
Covenant Defeasance.
-------------------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the then Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of
(premium, if any), and each installment of interest on the Notes on the
Stated Maturity of such principal or installment of interest in accordance
with the terms of this Indenture and of such Notes. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United
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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 of 1933, as amended) 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
the specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Notes will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Notes will not recognize gain or loss for
Federal income tax
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purposes as a result of such deposit and covenant defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Notes, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in Section 608 and for purposes
of the Trust Indenture Act with respect to any securities of the Company.
(6) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of (or premium, if any) or interest on or
other obligations in respect of any Senior Debt shall have occurred and be
continuing, and no event of default with respect to any Senior Debt shall
have occurred and be continuing and shall have resulted in such Senior Debt
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable and (B) no other event of
default with respect to any Senior Debt shall have occurred and be
continuing permitting (after notice or the lapse of time, or both) the
holders of such Senior Debt (or a trustee on behalf of the holders thereof)
to declare such Senior Debt due and payable prior to the date on which it
would otherwise have become due and payable, or, in the case of either
Clause (A) or Clause (B) above, each such default or event of default shall
have been cured or waived or shall have ceased to exist.
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(7) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing.
(8) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (which Opinion of Counsel may rely,
as to factual matters, on such Officer's Certificate), each stating that
all conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as the
case may be) have been complied with.
(10) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
SECTION 1305. Deposited Money and U.S. Government
-----------------------------------
Obligations to be Held in Trust;
-------------------------------
Other Miscellaneous Provisions.
------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
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 (including the Company acting as
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its own Paying Agent) as the Trustee may determine, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, but such money need not be segregated from other
funds except to the extent required by law. Money so held in trust shall not be
subject to the provisions of Article Twelve.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Out standing Notes.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in Sec
tion 1304 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 defeasance or cove nant defeasance.
SECTION 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to this Article Thirteen until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1302 or 1303;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Note following the reinstatement of its
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obligations, the Company shall be subrogated to the rights of the Holders of
such Note to receive such payment from the money held by the Trustee or the
Paying Agent.
____________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
By___________________________
Name:
Title:
Attest:
__________________________
BANKERS TRUST COMPANY
By____________________________
Name:
Title:
Attest:
___________________________
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK)
On the _____ day of __________, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is _______________________________________
of ________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
______________________________
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK)
On the _____ day of __________, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is _____________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so
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affixed by authority of the Board of Directors of said corporation, and that
[he -- she] signed [his -- her] name thereto by like authority.
______________________________
-144-
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 306(b)(i) of the Indenture)
Bankers Trust Company
Four Albany Street
4th Floor
New York, New York 10006
Re: ___% Senior Subordinated Notes
due ____________, 2008 of Loews Cineplex
Entertainment Corporation
(the "Securities")
-----------------------------
Reference is made to the Indenture, dated as of August __, 1998 (the
"Indenture"), from Loews Cineplex Entertainment Corporation (the "Company") to
Bankers Trust Company, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
A-1
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
------------------
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
A-2
designated offshore securities market and neither the Owner nor
any person acting on its behalf knows that the transaction has
been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other renumeration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(b)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
------------------
to Rule 144:
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and
is being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
A-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated: ____________________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:_________________________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
A-4
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 306(b)(ii) of the Indenture)
Bankers Trust Company
Four Albany Street
4th Floor
New York, New York 10006
Re: ___% Senior Notes due ___, 2008 of
Loews Cineplex Entertainment
Corporation (the "Securities")
-------------------------------
Reference is made to the Indenture, dated as of August ___, 1998 (the
"Indenture"), from Loews Cineplex Entertainment Corporation (the "Company")and
Bankers Trust Company, as Trustee. Terms used herein and defined in the
Indenture or in Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
ISIN No(s), If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is
B-1
acting on behalf of all the beneficial owners of the Specified Securities and is
duly authorized by them to do so. Such beneficial owner or owners are referred
to herein collectively as the "Owner". If the Specified Securities are
represented by a Global Security, they are held through the Depositary or an
Agent Member in the name of the Undersigned, as or on behalf of the Owner. If
the Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, (i) the Owner is not a U.S.
Person (as defined in the Indenture) and (ii) such transfer is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
-------------------
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe
is a "qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
------------------
Rule 144:
B-2
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and
is being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated: ____________________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:_________________________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
B-3
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to (S) 306(c))
Bankers Trust Company
Four Albany Street
4th Floor
New York, New York 10006
Re: ___% Senior Subordinated Notes due
___, 2008 of Loews Cineplex
Entertainment Corporation
(the "Securities")
----------------------------------
Reference is made to the Indenture, dated as of August ___, 1998 (the
"Indenture"), from Loews Cineplex Entertainment Corporation (the "Company"), and
Bankers Trust Company, as Trustee. Terms used herein and defined in the
Indenture or in Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by
C-1
a Global Security, they are held through the Depositary or an Agent Member in
the name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Security, they are registered in the
name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 306(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a holding period of at least two years (computed
in accordance with paragraph (d) of Rule 144) has elapsed since the Specified
Securities were last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated: __________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:__________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title
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of the person signing on behalf of the Undersigned must
be stated.)
C-3