1
EXHIBIT 4.1
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CINEMARK USA, INC.
8-1/2% SENIOR SUBORDINATED NOTES DUE 2008
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INDENTURE
Dated as of January 14, 1998
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U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
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2
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
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310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3,7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6,7.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6,11.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3,11.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5, 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.3. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 15
Section 1.4. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 2
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.3. Trustee, Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.4. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.5. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.7. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.8. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.9. Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.13. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.14. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 3
REDEMPTION AND PREPAYMENT . . . . . . . . . . . . . . . . . . . . . 27
Section 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.2. Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.4. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.6. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.7. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.8. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 4
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.1. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.3. Provisions of Reports and Other Information . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.4. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.6. Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.7. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.9. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.10. Limitation on Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.11. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.12. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.13. Limitation on Layering Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.14. Offer to Repurchase Upon Change of Control . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.15. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 4.16. Covenant with Respect to Cinemark International and its Subsidiaries . . . . . . . . . . . 44
Section 4.17. Limitation on Restrictive Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 5
SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.1. Merger, Consolidation, or Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.2. Successor Company Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 6
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.5. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.7. Rights of Holders of Notes to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.6. Reports by Trustee to Holders of the Notes . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.9. Successor Trustee by Merger, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 8
DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 54
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Section 8.2. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.4. Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.5. Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.6. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.7. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.8. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . . . . . . . . . . 58
Section 9.1. Without Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.2. With Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.4. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.5. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.6. Trustee to Sign Amendments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.7. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE 10
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.1. Agreement to Subordinate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.2. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.3. Default on Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.4. Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 10.5. When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 10.6. Notice by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.7. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.8. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.9. Subordination May Not Be Impaired by the Company . . . . . . . . . . . . . . . . . . . . . 63
Section 10.10. Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.11. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.12. Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE 11
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.1. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.3. Communication by Holders of Notes with Other Holders of Notes . . . . . . . . . . . . . . . 66
Section 11.4. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . 67
Section 11.5. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.6. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.7. No Personal Liability of Directors, Officers, Employees and Others. . . . . . . . . . . . . 67
Section 11.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.9. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.10. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.11. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.12. Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.13. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
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EXHIBITS
Exhibit A FORM OF NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B CERTIFICATE OF TRANSFEROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C FORM OF REGULATION S CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D FORM OF RULE 144A CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
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7
This INDENTURE, dated as of January 14, 1998, is by and between
Cinemark USA, Inc., a Texas corporation (the "Company"), and U.S. Trust Company
of Texas, N.A., as trustee (the "Trustee").
The parties listed above agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 8-1/2%
Senior Subordinated Notes due 2008, Series A (the "Series A Notes") and the
8-1/2% Senior Subordinated Notes due 2008, Series B (the "Series B Notes" and,
together with the Series A Notes, the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" of any particular Person means
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such particular Person or assumed by
such particular Person in connection with the acquisition of assets from any
other Person, and not incurred by such other Person in connection with, or in
contemplation of, such other Person merging with or into such particular Person
or becoming a Subsidiary of such particular Person or such acquisition.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar or Paying Agent.
"Applicable Law", except as the context may otherwise require,
means all applicable laws, rules, regulations, ordinances, judgments, decrees,
injunctions, writs and orders of any court or governmental or congressional
agency or authority and rules, regulations, orders, licenses and permits of any
United States federal, state, municipal, regional, or other governmental body,
instrumentality, agency or authority.
"Asset Disposition" means any sale, lease, conveyance,
transfer or other disposition (or series of related sales, leases, conveyances,
transfers or dispositions) of any Capital Stock of a Restricted Subsidiary of
the Company (whether or not upon issuance), or of any Capital Stock of Cinemark
International by the Company (but not the issuance and sale of Capital Stock by
Cinemark International), or of any other property or other assets (each
referred to for the purposes of this definition as a "disposition") by the
Company or any of its Restricted Subsidiaries, whether for cash or other
consideration, other than (i) a disposition by a Restricted Subsidiary of the
Company to the Company or a Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary, (ii) a disposition by the Company to a Wholly Owned
Subsidiary of the Company that is a Restricted Subsidiary, (iii) a disposition
that is a Permitted Investment or a Restricted Payment not prohibited by
Section 4.7 (to the extent such Permitted Investment or Restricted Payment may
be deemed to constitute an Asset
8
Disposition), (iv) dispositions of inventory in the ordinary course of
business, (v) a disposition pursuant to Section 5.1, (vi) exchanges of theatre
properties that comply with the requirements described in Section 4.10(f),
provided that payment of any Other Consideration shall, to the extent provided
therein, be treated as an Asset Disposition, (vii) a designation of a
Restricted Subsidiary as an Unrestricted Subsidiary, if the Company elects to
treat such designation as an Investment and not as an Asset Disposition, or
(viii) a disposition of Capital Stock, property or assets in a single
transaction or a series of related transactions (other than dispositions of the
type described in clauses (i) through (vii) above) having a Fair Market Value
of less than $2 million. For purposes of this definition, "Fair Market Value"
of any Capital Stock, property or other assets means the fair market value of
such Capital Stock, property or other assets at the time of disposition, which
in the case of any disposition or series of related dispositions having an
aggregate fair market value of $2 million or more shall be determined in good
faith (taking into account, without limitation, any assumption of indebtedness
in connection with such disposition) by resolution of the Board of Directors.
Notwithstanding any provision of this Indenture to the contrary, the expiration
or non-renewal of any lease of theatre properties or equipment at the normal
expiration date thereof without payment to the Company or any of its Restricted
Subsidiaries of consideration therefor shall not constitute an Asset
Disposition.
"Asset Disposition Expenses" shall have the meaning assigned
to such term in the definition of the term "Net Proceeds."
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as may be
amended from time to time, or any similar federal or state law for the relief
of debtors.
"Board of Directors" means the Board of Directors of the
Company, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Saturday, Sunday,
public holiday or day on which banking institutions in New York (or, with
respect to any payments or transfers to be made by the Trustee or any Agent, as
applicable, in the city where such Trustee or Agent is located) are authorized
or obligated by law or executive order to close.
"Capitalized Lease Obligations" means the capitalized amount
of the rental obligations of any Person under any lease of any property
(whether real, personal or mixed) which, in accordance with GAAP, is required
to be capitalized on the balance sheet of such Person.
"Capital Stock" of any Person means (i) any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock and any warrants, options and similar rights to acquire
such capital stock, (ii) in the case of a partnership, partnership interests
(whether general or limited) and (iii) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash" means money or currency or a credit balance in a
Deposit Account.
"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
2
9
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's,
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
assets in excess of $500 million, which invests predominantly in investments of
the types described in clauses (i) through (iv) above.
"Cedel Bank" means Cedel Bank, societe anonyme.
"Change of Control" means (i) the acquisition, including
through merger, consolidation or otherwise, by any Person or any Persons acting
together which would constitute a "group" (a "Group") for purposes of Section
13(d) of the Exchange Act, together with all affiliates and associates (as
defined in Rule 12b-2 under the Exchange Act) thereof, of direct or indirect
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more
than 50% of (A) the outstanding shares of Common Stock of the Company or (B)
the total voting power of all classes of Capital Stock of the Company entitled
to vote generally in the election of directors, or (ii) the election by any
Person or Group, together with all affiliates and associates thereof, of a
sufficient number of its or their nominees to the Board of Directors such that
such nominees, when added to any existing directors remaining on such Board of
Directors after such election who are affiliates or associates of such Person
or Group, shall constitute a majority of such Board of Directors; provided,
however, that, for purposes of this definition, the terms "Person" and "Group"
shall be deemed not to include (i) the Company, (ii) any Restricted Subsidiary
of the Company that is a Wholly Owned Subsidiary, (iii) ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ or
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or any descendant of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ or the spouse of any such
descendant, the estate of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any descendant of
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ or the spouse of any such descendant or any trust or other
arrangement for the benefit of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any descendant
of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ or the spouse of any such descendant (collectively, the
"▇▇▇▇▇▇▇▇ Family"), (iv) any group which includes any member or members of the
▇▇▇▇▇▇▇▇ Family if a majority of the Capital Stock of the Company held by such
group is beneficially owned (including the power to vote such Capital Stock of
the Company) by such member or members or by one or more affiliates at least
80% of the equity interests of which are owned by such member or members or (v)
Cypress Merchant Banking Partners L.P. or Cypress Pictures Ltd., and provided,
further, that, the term "Change of Control" shall be deemed not to include any
transaction or series of transactions that results in the Capital Stock of the
Company being held by one or more Persons if the beneficial ownership, direct
or indirect, of the Company after such transaction or series of transactions is
substantially the same as the beneficial ownership, direct or indirect, of the
Company prior to such transaction or series of transactions.
"Cinemark International" means Cinemark International, Inc., a
Texas corporation.
"Cinemark International Management Agreement" means the
Management Agreement, dated as of June 10, 1992, between the Company and
Cinemark International, as such agreement may be amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Commission" or "SEC" means the Securities and Exchange
Commission, and any successor thereto.
"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.
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10
"Consolidated EBITDA" of any Person means, for any period
(without duplication), (i) the sum of (A) Consolidated Net Income, (B)
Consolidated Interest Expense, (C) provisions for taxes based on or calculated
with respect to income, (D) depreciation expense, (E) amortization expense, and
(F) all other non-cash items reducing Consolidated Net Income, less all
non-cash items increasing Consolidated Net Income, minus (ii) any decrease in
deferred lease expenses, all as determined on a consolidated basis for such
Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" of any Person means, for any
period, without duplication, the total interest expense of such Person and its
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP, including (i) non-cash, payable-in-kind interest, (ii) interest expense
attributable to capital leases, (iii) amortization of debt discount and debt
issue cost (excluding related legal and accounting fees), but only with respect
to transactions consummated after the Start Date, (iv) commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (v) net costs under Hedging Obligations (including
amortizations of discount), (vi) preferred stock dividends in respect of
preferred stock of Restricted Subsidiaries of such Person, other than
payable-in-kind dividends in respect of preferred stock that is not
Disqualified Stock, held by Persons other than such Person or one of its Wholly
Owned Subsidiaries that is a Restricted Subsidiary, and (vii) dividends in
respect of Disqualified Stock of such Person.
"Consolidated Net Income" of any Person means, for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP,
however, including, in the case of the Company and its Restricted Subsidiaries,
only those management fees actually received by the Company from its
Unrestricted Subsidiaries, and excluding amortization of debt discount and debt
issue costs with respect to transactions consummated on or prior to the Start
Date, provided that (i) accrued but unpaid compensation expenses related to any
stock appreciation or stock option plans shall not be deducted until such time
as such expenses result in a cash expenditure, (ii) compensation expenses
related to tax payment plans implemented by the Company from time to time in
connection with the exercise and/or repurchase of stock options shall not be
deducted from Net Income to the extent of the related tax benefits arising
therefrom, (iii) the Net Income of any Person that is not a Restricted
Subsidiary of such Person or that is accounted for by such Person by the equity
method of accounting shall not be included in such Consolidated Net Income,
except that the Company's equity in the Net Income of any such Person for any
such period or any previous period shall be so included only up to the
aggregate amount of cash dividends or distributions paid to the Company or one
of its Restricted Subsidiaries, and (iv) the Net Income (if positive) of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded. For purposes of this
definition, "Net Income" of any Person means, for any period, the net income
(or loss) of such Person determined in accordance with GAAP, excluding,
however, from the determination (i) any extraordinary loss resulting from early
extinguishment of debt on or prior to the Start Date, (ii) any net gain or loss
from any extraordinary item (net of all related taxes, fees, costs and
expenses), (iii) any net gain or loss (net of all related taxes and Asset
Disposition Expenses) realized upon the sale or other disposition during such
period (including without limitation dispositions pursuant to sale and
leaseback transactions) of any real property, equipment or other asset of such
Person, which is not sold or otherwise disposed of in the ordinary course of
business, or of any Capital Stock of such Person or a Restricted Subsidiary of
such Person, and (iv) the cumulative effect of changes in accounting
principles.
"Consolidated Net Worth" of any Person means, as of any date,
the amount which, in accordance with GAAP, would be set forth under the caption
"Shareholders' Equity" (or any like
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11
caption) on a consolidated balance sheet of such Person and its Restricted
Subsidiaries, less amounts attributable to Disqualified Stock of such Person or
any of its Restricted Subsidiaries.
"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.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.2 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Facility" means that certain First Amended and
Restated Reducing Revolving Credit Agreement, dated as of December 12, 1996,
among the Company, the financial institutions from time to time parties
thereto, and Bank of America National Trust and Savings Association, as agent
for such financial institutions, and the various ancillary documents provided
for therein, as the same may be amended, extended, increased, renewed,
restated, supplemented or otherwise modified (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions)
from time to time, and any agreement or agreements governing Indebtedness
incurred to refinance, replace, restructure or refund such agreements in whole
or in part from time to time (whether with the original agent and lenders or
other agents and lenders or otherwise, and whether provided for under the
original Credit Facility or otherwise).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event, act or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A that do not include the paragraph called for
by footnote 1 or the schedule called for by footnote 3 thereof.
"Deposit Account" means a demand, savings, passbook, money
market or like account with a commercial bank, savings and loan association or
like organization or a government securities dealer, other than an account
evidenced by a negotiable certificate of deposit.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.3
hereof as the Depositary with respect to the Notes, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"Designated Senior Indebtedness" means (i) the Credit Facility
and all Indebtedness thereunder and (ii) any other Senior Indebtedness issued
after the Start Date and permitted under the terms of this Indenture, the
principal amount of which is $10 million or more and that has been designated
by the Company as Designated Senior Indebtedness.
"Disqualified 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 exercisable,
5
12
redeemable or exchangeable), matures, or is mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part (but only to the extent of such part), on
or prior to the Stated Maturity of the Notes.
"EBITDA Ratio" of any Person means the ratio of (i) the
aggregate amount of Consolidated EBITDA of such Person for the four full fiscal
quarters immediately prior to the date of the transaction giving rise to the
need to calculate the EBITDA Ratio (the "Determination Date") to (ii) the
aggregate Consolidated Interest Expense which such Person shall accrue during
the fiscal quarter in which the Determination Date occurs and the three fiscal
quarters immediately subsequent to such fiscal quarter, assuming that the
Consolidated Interest Expense shall accrue on the amount of such Person's
Indebtedness on the Determination Date, including any Indebtedness proposed to
be incurred on such date (as though all such Indebtedness was incurred on the
first day of the quarter in which the Determination Date occurred), but
specifically excluding Indebtedness proposed to be repaid or defeased (or with
respect to the defeasance of which a deposit satisfying the defeasance
requirements of such Indebtedness has irrevocably been made) on such date (as
though all such Indebtedness was repaid on the first day of the quarter in
which the Determination Date occurred); provided that if during the
four-quarter period referred to in clause (i) above, the Person for which the
EBITDA Ratio is being determined or any of its Restricted Subsidiaries shall
have acquired any assets other than assets acquired as a result of capital
expenditures made in the ordinary course of business of such Person, the EBITDA
Ratio of such Person as of such Determination Date shall be calculated on a pro
forma basis, as if such acquisition had occurred at the beginning of such
four-quarter period. For purposes of this definition, interest on Indebtedness
determined on a fluctuating basis for periods succeeding the Determination Date
shall be calculated as if the rate in effect on the Determination Date had been
the applicable rate for the entire period, taking into account any Hedging
Obligations applicable to such Indebtedness.
"Equity Offering" means either (i) a bona fide underwritten
sale to the public of Common Stock of the Company or a Parent pursuant to a
registration statement (other than a Form S-8 or any other form relating to
securities issuable under any employee benefit plan of the Company) that is
declared effective by the Commission, or (ii) a privately negotiated sale of
Common Stock of the Company or a Parent by the Company or such Parent, as the
case may be, to a Person that, immediately prior to the time of such sale, is
not an Affiliate of the Company or such Parent, in each case completed
following the Start Date and resulting in aggregate gross proceeds to the
Company or such Parent of at least $20 million; provided, that in the case of
any such sale of Common Stock of a Parent, (x) the net proceeds of such sale
shall be contributed within 30 days by such Parent to the Company or (y) the
Parent shall use such proceeds to purchase Capital Stock of the Company that is
not Disqualified Stock.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Exchange Notes" means the Series B Notes to be issued by the
Company upon the expiration of the Exchange Offer pursuant to the terms of the
Registration Rights Agreement, containing terms identical in all material
respects to the Series A Notes (except that (i) the transfer restrictions
thereon shall be eliminated (other than as may be imposed by state securities
laws) and (ii) there will be no provision for the payment of Liquidated
Damages).
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13
"Exchange Offer" means, subject to the terms of the
Registration Rights Agreement, the offer by the Company to the Holders of the
opportunity to exchange their Series A Notes for Exchange Notes pursuant to a
registration statement filed with the Commission.
"Existing Unrestricted Subsidiaries" means Cinemark
International and its Subsidiaries.
"50% Entity" shall have the meaning assigned to such term in
the definition of the term "Subsidiary."
"GAAP" means generally accepted accounting principles as
applied in the United States set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States, which are applicable as of the date of determination; provided that the
definitions contained in this Indenture and all ratios and calculations
contained in the covenants contained herein shall be determined in accordance
with GAAP as in effect and applied by the Company as of the Start Date,
consistently applied; provided, further, that in the event of any such change
in GAAP or in any change by the Company in GAAP applied that would result in
any change in any such ratio or calculation, the Company shall deliver to the
Trustee each time any such ratio or calculation is required to be determined or
made, an Officer's Certificate setting forth the computations showing the
effect of such change or application on such ratio or calculation.
"Global Notes" has the meaning specified in 2.1(a).
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America or any agency or
instrumentality thereof for the payment of which guarantee or obligations the
full faith and credit of the United States is pledged.
"guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such other Person (whether arising by virtue of
participation arrangements, by agreement to keep well, or to maintain financial
statement conditions or otherwise), (ii) to purchase, sell or lease (as lessee
or lessor) property, or to purchase or sell services, primarily for the purpose
of enabling such other Person to make payment of such Indebtedness, (iii) to
supply funds to or in any other manner invest in such other Person (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered), or (iv) entered into for
the purpose of assuring the obligee of such Indebtedness in any other manner of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term "guarantee" shall not include (i)
endorsements for collection or deposit in the ordinary course of business, and
(ii) leases entered into in the ordinary course of business.
"Hedging Obligation" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or ▇▇▇▇ option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing)
7
14
or any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Holder" or "Securityholder" means a Person in whose name a
Note is registered on the Register.
"Indebtedness" of any Person means, at any date, and without
duplication, any obligation of such Person or its Restricted Subsidiaries for
or in respect of: (i) money borrowed (whether or not for a cash consideration
and whether or not the recourse of the lender is to the whole of the assets of
such Person or only a portion thereof) and premiums (if any) and capitalized
interest (if any) in respect thereof; (ii) any debenture, bond, note or similar
instrument (whether or not issued for a cash consideration), if it would appear
as a liability on a balance sheet of such Person prepared in accordance with
GAAP; (iii) any letter of credit (other than in respect of Trade Payables),
bankers' acceptance or note purchase facility or any liability with respect to
any recourse receivables purchase, factoring or discounting arrangement; (iv)
Capitalized Lease Obligations (whether in respect of buildings, machinery,
equipment or otherwise), except any such obligation that represents a Trade
Payable; (v) any deferred purchase or conditional sale agreement or arrangement
representing the deferred and unpaid balance of the purchase price of any
property (including pursuant to financing leases), except any such balance
which represents a Trade Payable; (vi) all obligations to purchase, redeem,
retire, defease or otherwise acquire for value any Disqualified Stock of such
Person (or any warrants, rights or options to acquire such Disqualified Stock)
valued, in the case of Disqualified Stock, at the greatest amount payable in
respect thereof on a liquidation (whether voluntary or involuntary), prior to
the Stated Maturity of the Notes, plus accrued and unpaid dividends; (vii)
preferred stock of Restricted Subsidiaries of such Person held by Persons other
than such Person or one of its Wholly Owned Subsidiaries that is a Restricted
Subsidiary; (viii) direct or indirect guarantees of all Indebtedness of other
Persons referred to in clauses (i) through (vii) above; and (ix) all
Indebtedness of the types referred to in clauses (i) through (viii) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on any asset owned by such
Person or its Restricted Subsidiaries (even though such Person or its
Restricted Subsidiaries have not assumed or become liable for the payment of
such Indebtedness); provided, that the term "Indebtedness" shall not be deemed
to include any liability for federal, state, local or other taxes owed or owing
by the Company. The amount of Indebtedness of any Person or its Restricted
Subsidiaries at any date shall be (without duplication) (i) the outstanding
balance at such date of all unconditional Indebtedness obligations as described
above and the maximum liability of any such contingent Indebtedness obligations
at such date, (ii) in the case of Indebtedness of others secured by a Lien to
which the property or assets owned or held by such Person or its Restricted
Subsidiaries is subject, the lesser of the fair market value at such date of
any property and assets subject to a Lien securing the Indebtedness of others
and the amount of the Indebtedness secured, and (iii) in the case of
Indebtedness of others guaranteed by such Person as described above, the lesser
of the maximum amount of such guaranty and the amount of the Indebtedness
guaranteed. A guaranty of Indebtedness of the Company or a Restricted
Subsidiary of the Company that is permitted under the Indenture shall not
constitute a separate incurrence of Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Initial Issuance Date" means the date of original issuance of
the Series A Notes.
"Interest Payment Date" means each of February 1 and August 1.
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15
"Investment" means any direct or indirect advance, loan or
other extension of credit or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property or services for
the account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities issued by, any other Person, other
than (i) loans or advances made to employees in the ordinary course of business
not in excess of $50,000 outstanding at any time to any employee, (ii) advances
to customers or suppliers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of any Person or its Subsidiaries
and any securities received in settlement thereof or as a result of a
bankruptcy or an insolvency proceeding, (iii) workers' compensation, utility,
lease and similar deposits and prepaid expenses in the ordinary course of
business, (iv) Capital Stock, bonds, notes, debentures and other assets
received as a result of Asset Dispositions not prohibited by Section 4.10, and
(v) endorsements of negotiable instruments and documents in the ordinary course
of business. In addition, (i) the fair market value of the assets (net of
liabilities) of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary shall constitute an
Investment in such Subsidiary in such amount, if the Company has elected that
such designation be deemed to be an Investment and not an Asset Disposition,
and (ii) the lesser of (A) the amount of Restricted Payments made to any
Unrestricted Subsidiary or (B) the fair market value of the assets (net of
liabilities) of such Unrestricted Subsidiary, in each case at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary of the
Company, shall constitute a return of capital and a decrease in the amount of
the Company's Investment in such Subsidiary.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the Company's principal place of business, the City of
New York or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement, charge or other security
interest or encumbrance of any kind (including any agreement to give any
security interest).
"Liquidated Damages" means liquidated damages as defined in
Section 5 of the Registration Rights Agreement.
"Marketable Equity Securities" means shares of Capital Stock
of any Person that are listed on the New York Stock Exchange, the American
Stock Exchange or the national market tier of The Nasdaq Stock Market and, upon
receipt by the Company or a Restricted Subsidiary, such shares are freely
tradeable under the Securities Act and applicable state securities laws and are
so listed or included for trading privileges.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Proceeds" means the aggregate amount of consideration in
the form of Cash, Temporary Cash Investments or Marketable Equity Securities
received by the Company or any of its Restricted Subsidiaries with respect to
any Asset Disposition, after deducting therefrom brokerage commissions,
appraisal fees, survey charges, engineering fees, title insurance premiums,
legal fees, finder's fees, loan origination and similar fees, underwriting
fees, investment banking fees and other similar commissions or fees, and any
filing, recording or registration fees, costs and expenses, recording taxes,
transfer taxes, provisions for all taxes payable as a result of such Asset
Disposition, amounts required to be paid to any Person owning a beneficial
interest in the assets subject to such Asset
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Disposition, and appropriate amounts to be provided as a reserve in accordance
with GAAP against any liabilities associated with such Asset Disposition after
such Asset Disposition (to the extent such reserves are not subsequently
reversed), including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Disposition ("Asset Disposition Expenses"), and also less any amounts required
to be applied to retire all or a portion of the Notes or Indebtedness permitted
under Section 4.9 having the benefit of a Lien on the property or assets so
transferred, to the extent, but only to the extent, that such amounts are paid
by the Company or one of its Restricted Subsidiaries or are amounts for which
the Company or one of its Restricted Subsidiaries is directly and not
contingently liable, as the case may be, and properly attributable to the
transaction in respect of which such consideration is received or to the asset
that is the subject of such transaction.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offer" means a Change of Control Offer or Net Proceeds Offer,
as the case may be.
"Offer Purchase Date" means a Change of Control Purchase Date
or Net Proceeds Purchase Date, as the case may be.
"Offering Memorandum" means the Offering Memorandum, dated
January 8, 1998, relating to the offering of the Series A Notes.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Secretary, any Assistant Secretary, or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the Chairman
of the Board, the President or the Chief Financial Officer of the Company, that
meets the requirements of Section 11.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
11.5 hereof. The counsel may be counsel to the Company, any Subsidiary of the
Company or the Trustee.
"Parent" shall mean a Person or group of Persons created to
effectuate a holding company structure for the Company and its Subsidiaries.
"Permitted Investment" means (i) an Investment in the Company
or a Wholly Owned Subsidiary of the Company that is a Restricted Subsidiary;
(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 Wholly Owned Subsidiary of the
Company that is a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to the Company
or a Wholly Owned Subsidiary of the Company that is a Restricted Subsidiary;
(iii) a Temporary Cash Investment; (iv) payroll, travel and similar advances to
cover matters
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that are expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP; (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 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) guarantees
not prohibited by Section 4.9; (ix) 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 (A) the Person into
which such Investment is made is either a Restricted Subsidiary of the Company,
or 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 and (B) the amount of such Investment,
valued at the time made, together with all Investments previously made pursuant
to this clause (ix) (and, without duplication, all Investments made pursuant to
clause (ix) of the definition of "Permitted Investments" as set forth in
Section 1.1 of the Senior Subordinated Indentures shall be deemed made pursuant
to this clause (ix) as well), valued at the respective times made, shall not
exceed 10% of Consolidated Tangible Assets of the Company as of the last day of
the full fiscal quarter ending immediately prior to the date of such
Investment; (x) any Investment made solely with funds the payment or
application of which is not restricted pursuant to Section 4.7; (xi)
Investments in the Notes and the Senior Subordinated Notes; (xii) any
consolidation or merger of a Restricted Subsidiary that is a Wholly Owned
Subsidiary of the Company to the extent otherwise permitted under the
Indenture; (xiii) payments of up to $1.5 million annually to repurchase Capital
Stock of the Company issued under the Company's employee stock option plans;
(xiv) Hedging Obligations of the Company or any of its Restricted Subsidiaries
to the extent otherwise permitted under the Indenture; (xv) Investments in
Cinemark International not to exceed $40 million; and (xvi) other Investments
not to exceed $10 million.
"Person" means any individual, corporation, partnership,
joint venture, limited liability company, incorporated or unincorporated
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.
"Qualified Institutional Buyer" has the meaning set forth in
Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Company and the other
parties thereto, as such agreement may be amended, modified or supplemented
from time to time.
"Regulation S" means Regulation S under the Securities Act and
any successor regulation thereto.
"Regulation S Global Note" has the meaning specified in
Section 2.1(a).
"Representative" means, for any Senior Indebtedness, the
trustee, agent or representative with respect to such Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other
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officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Global Note" has the meaning specified in Section
2.1(a).
"Restricted Period" has the meaning specified in Section
2.1(b)(A).
"Restricted Subsidiary" means (i) any Subsidiary of the
Company in existence on the Start Date other than the Existing Unrestricted
Subsidiaries, (ii) any Subsidiary of the Company (other than a Subsidiary that
is also a Subsidiary of an Unrestricted Subsidiary) organized or acquired after
the Start Date, unless such Subsidiary shall have been designated as an
Unrestricted Subsidiary by resolution of the Board of Directors as provided in
and in compliance with the definition of "Unrestricted Subsidiary," and (iii)
any Unrestricted Subsidiary which is designated as a Restricted Subsidiary by
the Board of Directors; provided that, immediately after giving effect to the
designation referred to in clause (iii), no Default or Event of Default shall
have occurred and be continuing and the Company could incur at least $1.00 of
additional Indebtedness under Section 4.9(a). The Company shall evidence any
such designation to the Trustee by promptly filing with the Trustee an
Officer's Certificate certifying that such designation has been made and
stating that such designation complies with the requirements of the immediately
preceding sentence.
"Rule 144" means Rule 144 under the Securities Act and any
successor rule thereto.
"Rule 144A" means Rule 144A under the Securities Act and any
successor rule thereto.
"S&P" means Standard and Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Senior Indebtedness" means (i) Indebtedness under the Credit
Facility and (ii) any other Indebtedness permitted to be incurred by the
Company under the terms of this Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness will not include (x) the Notes
and the Senior Subordinated Notes, (y) any Indebtedness of the Company to any
of its Subsidiaries or other Affiliates, or (z) any Indebtedness that is
incurred in violation of the terms of this Indenture.
"Senior Subordinated Indentures" means collectively the
indenture, dated as of August 15, 1996, by and between the Company and the
Trustee, as amended by that certain First Supplemental Indenture thereto, dated
as of June 26, 1997, and as further amended or supplemented from time to time,
and the indenture, dated as of June 26, 1997, by and between the Company and
the Trustee, as amended or supplemented from time to time.
"Senior Subordinated Notes" means the aggregate $275 million
principal amount of the Company's 9-5/8% Senior Subordinated Notes due 2008,
Series B and Series D, issued by the Company pursuant to the Senior
Subordinated Indentures.
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"Significant Subsidiary" means, at any date of determination,
any Restricted Subsidiary of the Company that, together with its Restricted
Subsidiaries, (i) for the most recent fiscal year of the Company, accounted for
more than 5% of the consolidated revenues of the Company and its Restricted
Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more
than 5% of the consolidated assets of the Company and its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Company for such fiscal year.
"Start Date" means August 15, 1996.
"Stated Maturity" means, when used with respect to any
security, the date specified in such security as the fixed date on which an
amount equal to the principal of such security is due and payable.
"Subsidiary" means, with respect to any Person, (i) a Person a
majority of whose Capital Stock with voting power under ordinary circumstances
to elect directors (or Persons having similar or corresponding powers and
responsibilities) is at the time, directly or indirectly, owned by such Person,
by one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or (ii) upon designation by the Company, and until
designation by the Company to the contrary, a Person, 50% of whose Capital
Stock with voting power under ordinary circumstances to elect directors (or
Persons having similar or corresponding powers and responsibilities) is at the
time, directly or indirectly, owned by such Person, by one or more Subsidiaries
of such Person or by such Person and one or more Subsidiaries thereof (a "50%
Entity"). The Company shall evidence any designation pursuant to clause (ii) of
the immediately preceding sentence to the Trustee by filing with the Trustee
within 45 days of such designation an Officer's Certificate certifying that
such designation has been made. All references within the Indenture to
designations of Unrestricted Subsidiaries as Restricted Subsidiaries or
Restricted Subsidiaries as Unrestricted Subsidiaries shall be deemed to include
designations of 50% Entities as Restricted Subsidiaries and Restricted
Subsidiaries as 50% Entities, respectively.
"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,
the District of Columbia, Canada or any province or territory thereof, 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 of 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 highest rating
category of both S&P and Moody's; (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 Moody's;
(D) money market mutual or similar funds having assets in excess of $100
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million; (E) readily marketable debt obligations issued by any corporation, if
at the time of the Company's or any 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 Moody's; (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 or any Canadian equivalent thereof; (G) demand or time
deposit accounts used in the ordinary course of business with overseas branches
of commercial banks incorporated under the laws of the United States of
America, any state thereof, the District of Columbia, Canada or any province or
territory thereof, provided that such commercial bank has, at the time of the
Company's or such Restricted Subsidiary's Investment therein, (1) capital,
surplus and undivided profits (as of the date of such institution's most
recently published financial statements) in excess of $100 million and (2) 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 any Restricted Subsidiary's
Investment therein, are rated in the highest rating category of both S&P and
Moody's; and (H) to the extent not otherwise included herein, Cash Equivalents.
In the event that either S&P or Moody's 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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) and the rules and regulations thereunder, as in effect
on the date on which this Indenture is qualified under the TIA (except as
provided in Sections 9.1(e) and 9.3 hereof).
"Trade Payables" of any Person means accounts payable or any
other indebtedness or monetary obligations to trade creditors created, assumed
or guaranteed by such Person or any of its Subsidiaries in the ordinary course
of business in connection with the obtaining of materials or services.
"Transfer Restricted Securities" means securities that bear or
are required to bear the legend set forth in Section 2.6 hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means, until such time as any of the
following shall be designated as a Restricted Subsidiary of the Company by the
Board of Directors as provided in and in compliance with the definition of
"Restricted Subsidiary," (i) each of the Existing Unrestricted Subsidiaries,
(ii) any Subsidiary of the Company or of a Restricted Subsidiary of the Company
organized or acquired after the Start Date that is designated concurrently with
its organization or acquisition as an Unrestricted Subsidiary by resolution of
the Board of Directors, (iii) any Subsidiary of any Unrestricted Subsidiary,
and (iv) any Restricted Subsidiary of the Company that is designated as an
Unrestricted Subsidiary by resolution of the Board of Directors, provided that,
(A) immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing and (B) any such designation
shall be deemed, at the election of the Company at the time of such
designation, to be either (but not both) (x) the making of a Restricted Payment
at the time of such designation in an amount equal to the Investment in such
Subsidiary subject to the restrictions contained in Section 4.7 or (y) the
making of an Asset Disposition at the time of such designation in an amount
equal to the Investment in such Subsidiary subject to the restrictions
contained in Section 4.10. The Company shall evidence any
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designation pursuant to clause (ii) or (iv) of the immediately preceding
sentence to the Trustee by filing with the Trustee within 45 days of such
designation an Officer's Certificate certifying that such designation has been
made and, in the case of clause (iv), the related election of the Company in
respect thereof.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act), as custodian, with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided,
however, 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.
"Weighted Average Life" means, as of any date, with respect to
any debt security, the quotient obtained by dividing (i) the sum of the
products of the number of years from such date to the dates of each successive
scheduled principal payment (including any sinking fund payment requirements)
of such debt security multiplied by the amount of such principal payment, by
(ii) the sum of all such principal payments.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
of such Person all of whose Capital Stock with voting power under ordinary
circumstances to elect directors (or Persons having similar or corresponding
powers and responsibilities), other than directors' qualifying shares if
required by applicable law, is owned by such Person (either directly or
indirectly through Wholly Owned Subsidiaries).
Section 1.2. Other Definitions.
Defined in
Term Section
---------------------------------------------- ----------
"Affiliate Transaction" . . . . . . . . . . . 4.11
"Change of Control Offer" . . . . . . . . . . 4.14(a)
"Change of Control Offer Price" . . . . . . . 4.14(a)
"Change of Control Purchase Date" . . . . . . 4.14(a)
"Covenant Defeasance" . . . . . . . . . . . . 8.3
"Discharge" . . . . . . . . . . . . . . . . . 8.5
"DTC" . . . . . . . . . . . . . . . . . . . . 2.1(b)
"DTC Participants" . . . . . . . . . . . . . . 2.1(b)
"Event of Default" . . . . . . . . . . . . . . 6.1
"Incurrence" . . . . . . . . . . . . . . . . . 4.9(a)
"Legal Defeasance" . . . . . . . . . . . . . . 8.2
"Net Proceeds Offer" . . . . . . . . . . . . . 4.10(a)
"Net Proceeds Offer Amount" . . . . . . . . . 4.10(a)
"Net Proceeds Offer Price" . . . . . . . . . . 4.10(a)
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"Net Proceeds Purchase Date" . . . . . . . . . 4.10(a)
"Other Consideration" . . . . . . . . . . . . 4.10(f)
"Pari Passu Offer" . . . . . . . . . . . . . . 4.10(b)
"Pari Passu Offer Amount" . . . . . . . . . . 4.10(b)
"Paying Agent" . . . . . . . . . . . . . . . . 2.3
"Payment Blockage Notice" . . . . . . . . . . 10.3
"Refinancing Indebtedness" . . . . . . . . . . 4.9(a)
"Register" . . . . . . . . . . . . . . . . . . 2.3
"Registrar" . . . . . . . . . . . . . . . . . 2.3
"Restricted Payments" . . . . . . . . . . . . 4.7(a)
"SEC" . . . . . . . . . . . . . . . . . . . . 1.1 ("Commission")
"75% Test" . . . . . . . . . . . . . . . . . . 4.10(a)
"Surviving Entity" . . . . . . . . . . . . . . 5.1
"Transaction Value" . . . . . . . . . . . . . 4.10(f)
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and
transactions;
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(f) references to sections of or rules under the Exchange
Act or the Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from
time to time; and
(g) "herein," "hereof" and other words or similar import
refer to this Indenture as a whole (as amended or supplemented from
time to time) and not to any particular Article, Section or other
subdivision.
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating.
(a) General Form of Notes. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
hereto, which Exhibit is part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes shall be in
minimum denominations of $1000 and integral multiples thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold to Qualified Institutional Buyers in
reliance on Rule 144A under the Securities Act will initially be issued only in
the form of one or more permanent global Notes in definitive, fully registered
form without interest coupons (each a "Restricted Global Note"). Restricted
Global Notes shall be substantially in the form of Exhibit A attached hereto
(including the text and schedule called for by footnotes 1 and 3 thereto).
Notes offered and sold outside the United States in reliance on Regulation S
under the Securities Act will initially be issued only in the form of one or
more permanent global Notes in definitive, fully registered form without
interest coupons (each a "Regulation S Global Note"; together with Restricted
Global Notes, the "Global Notes"). Regulation S Global Notes shall be
substantially in the form of Exhibit A attached hereto (including the text and
schedule called for by footnotes 1 and 3 thereto). Notes offered and sold in
reliance on any other exemption from registration under the Securities Act will
be issued only in the form of Definitive Notes. Definitive Notes shall be
substantially in the form of Exhibit A attached hereto (excluding the text and
schedule called for by footnotes 1 and 3 thereto). Global Notes or Definitive
Notes issued as Exchange Notes will not include the legend called for by
footnote 2 of Exhibit A.
(b) Form of Global Notes. (A) Each Restricted Global
Note (i) shall represent such portion of the outstanding Notes as shall be
specified therein, (ii) shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions,
(iii) shall be registered in the name of the Depositary or its nominee, duly
executed by the Company and authenticated by the Trustee as provided herein,
for credit to the respective accounts of the Holders (or such accounts as they
may direct) at the Depositary, (iv) shall be delivered by the Trustee or its
Agent to the Depositary or a Note Custodian pursuant to the Depositary's
instructions and (v) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for
registration of
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transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as is
required by an authorized representative of DTC (and any
payment hereon is made to Cede & Co or to such other entity as
is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
(B) Each Regulation S Global Note (i) shall represent
such portion of the outstanding Notes as shall be specified therein, (ii) shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions, (iii) shall be registered in
the name of the Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as provided herein, for credit to the accounts of
▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear and Cedel Bank, (iv) shall be delivered by the Trustee or its Agent
to the Depositary or a Note Custodian pursuant to the Depositary's instructions
and (v) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as is required by an authorized representative
of DTC (and any payment hereon is made to Cede & Co or to such
other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein."
Prior to the 40th day after the Closing Date (the "Restricted Period"),
beneficial interests in the Regulation S Global Note may only be held through
Euroclear or Cedel Bank, and any resale or transfer of such interests to U.S.
Persons shall not be permitted during such period unless such resale or
transfer is made pursuant to Rule 144A or Regulation S.
(C) Members of, or participants in, the Depositary ("DTC
Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, and the Depositary may be
treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished to the Depositary
or impair, as between the Depositary and its agent members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.6 hereof.
(c) Form of Definitive Notes. Definitive Notes may be
produced in any manner determined by the Officers of the Company executing such
Notes, as evidenced by their execution of such Notes. The Trustee must
register Definitive Notes so issued in the name of, and cause the same to be
delivered to, such Person (or its nominee). Subject to the provisions of
Section 2.6, any Person having a beneficial
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interest in a Global Note may exchange such beneficial interest, upon request
to the Trustee, for fully certificated Definitive Notes in duly registered
form.
(d) Provisions Applicable to Forms of Notes. The Notes
may also have such additional provisions, omissions, variations or
substitutions as are not inconsistent with the provisions of 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 this
Indenture, any Applicable Law or with any rules made pursuant thereto or with
the rules of any securities exchange or governmental agency or as may be
determined consistently herewith by the Officer of the Company executing such
Notes, as conclusively evidenced by their execution of such Notes. All Notes
shall be otherwise substantially identical except as provided herein.
Subject to the provisions of this Article 2, a registered
Holder of a beneficial interest in a Global Note may grant proxies and
otherwise authorize any Person to take any action that a Holder is entitled to
take under this Indenture or the Notes.
Section 2.2. Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal may be reproduced on the Notes and may
be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid or obligatory for any purpose or
entitled to the benefits of the Indenture until authenticated by the manual
signature of the Trustee or its authenticating agent. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon the delivery to the Trustee of a
written order of the Company signed by two Officers, from time to time,
authenticate Notes for original issue up to an aggregate principal amount of
$105,000,000. The aggregate principal amount of Notes outstanding at any time
may not exceed such amount except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
the Company or an Affiliate of the Company.
Section 2.3. Trustee, Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register ("Register") of the Notes and of their
transfer and exchange. The Company may also from time to time appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
upon notice to the Holders. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another
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entity as Registrar or Paying Agent, the Trustee shall act, subject to the last
paragraph of this Section 2.3, as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar; provided, however, that none of the
Company, its Subsidiaries or the Affiliates of the foregoing shall act (i) as
Paying Agent in connection with redemptions, offers to purchase, discharges and
defeasance, as otherwise specified in this Indenture, and (ii) as Paying Agent
or Registrar if a Default or Event of Default has occurred and is continuing.
The Company hereby appoints U.S. Trust Company of Texas, N.A.,
at its Corporate Trust Office, as the Trustee hereunder and U.S. Trust Company
of Texas, N.A. hereby accepts such appointment. The Trustee shall have the
powers and authority granted to and conferred upon it in the Notes and hereby
and such further powers and authority to act on behalf of the Company as may be
mutually agreed upon by the Company and the Trustee, and the Trustee shall keep
a copy of this Indenture available for inspection during normal business hours
at its Corporate Trust Office.
The Company initially appoints DTC to act as Depositary with
respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
All of the terms and provisions with respect to such powers
and authority contained in the Notes are subject to and governed by the terms
and provisions hereof.
The Trustee may resign as Registrar or Paying Agent upon 30
days prior written notice to the Company.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, or premium, if any, or interest on, the Notes, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon
payment of all such money over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to
the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable to it the most recent list available to it of the names
and addresses of all Holders and, after the consummation of the Exchange Offer,
shall otherwise strictly comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may require of the names and addresses of the Holders of Notes and,
after the consummation of the Exchange Offer, the Company shall otherwise
strictly comply with TIA Section 312(a).
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Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. If
Definitive Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Notes; or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Notes presented or surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instruction of transfer in form
satisfactory to the Registrar duly executed
by such Holder or by such Holder's attorney,
duly authorized in writing; and
(ii) in the case of a Definitive Note that is a
Transfer Restricted Security, such request
shall be accompanied by the following
additional information and documents, as
applicable:
(A) if such Transfer Restricted Security
is being delivered to the Registrar
by a Holder for registration in the
name of such Holder, without
transfer, a certification to that
effect from such Holder (in
substantially the form of Exhibit B
hereto); or
(B) if such Transfer Restricted Security
is being transferred to a "qualified
institutional buyer" (as defined in
Rule 144A under the Securities Act)
in accordance with Rule 144A under
the Securities Act or pursuant to an
exemption from registration in
accordance with Rule 144 or Rule 904
under the Securities Act or pursuant
to an effective registration
statement under the Securities Act,
a certification to that effect from
such Holder (in substantially the
form of Exhibit B hereto); or
(C) if such Transfer Restricted Security
is being transferred in reliance on
another exemption from the
registration requirements of the
Securities Act, a certification to
that effect from such Holder (in
substantially the form of Exhibit B
hereto) and an Opinion of Counsel
from such Holder or the transferee
reasonably acceptable to the Company
and to the Registrar to the effect
that such transfer is in compliance
with the Securities Act.
(b) Restrictions on Transfer of a Definitive Note for a
Beneficial Interest in a Global Note. A Definitive Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
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(i) if such Definitive Note is a Transfer
Restricted Security, a certification from the
Holder thereof (in substantially the form of
Exhibit B hereto) to the effect that such
beneficial interest is being transferred to a
"qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in
accordance with Rule 144A under the
Securities Act or pursuant to an exemption
from registration in accordance with Rule 144
or Rule 904 under the Securities Act; and
(ii) whether or not such Definitive Note is a
Transfer Restricted Security, written
instructions from the Holder thereof
directing the Trustee to make, or to direct
the Note Custodian to make, an endorsement on
the Global Note to reflect an increase in the
aggregate principal amount of the Notes
represented by the Global Note,
in which case the Trustee or its agent shall cancel such Definitive Note in
accordance with Section 2.11 hereof and cause, or direct the Note Custodian to
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, the aggregate principal amount
of Notes represented by the Global Note to be increased accordingly. If no
Global Notes are then outstanding, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.2 hereof, the Trustee
shall authenticate a new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of a Beneficial Interest in a
Global Note. The transfer and exchange of beneficial interests in Global Notes
shall be effected through the Depositary, in accordance with this Indenture and
the procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Notwithstanding the foregoing, in the case of a Transfer
Restricted Security, a beneficial interest in a Global Note being transferred
in reliance on an exemption from the registration requirements of the
Securities Act (other than in accordance with Rule 144A, Rule 144 or Rule 904
under the Securities Act) may only be transferred for a Definitive Note and
pursuant to the provisions of Section 2.6(d) below.
(d) Transfer and Exchange of a Beneficial Interest in a
Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a
Global Note may upon request exchange such
beneficial interest for a Definitive Note.
Upon receipt by the Trustee of written
instructions or such other form of
instructions as is customary for the
Depositary, from the Depositary or its
nominee on behalf of any Person having a
beneficial interest in a Global Note, and, in
the case of a Transfer Restricted Security,
the following additional information and
documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being
transferred to the Person designated
by the Depositary as being the
beneficial owner, a certification to
that effect from such Person (in
substantially the form of Exhibit B
hereto); or
(B) if such beneficial interest is being
transferred to a "qualified
institutional buyer" (as defined in
Rule 144A under the Securities Act)
in accordance with Rule 144A under
the Securities Act or pursuant to an
exemption from registration in
accordance with Rule 144 or Rule 904
under the Securities Act or pursuant
to an effective registration
statement under the Securities Act,
a certification to that effect from
the transferor (in substantially the
form of Exhibit B hereto); or
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(C) if such beneficial interest is being
transferred in reliance on another
exemption from the registration
requirements of the Securities Act,
a certification to that effect from
the transferor (in substantially the
form of Exhibit B hereto) and an
Opinion of Counsel from the
transferee or transferor reasonably
acceptable to the Company and to the
Registrar to the effect that such
transfer is in compliance with the
Securities Act,
in which case the Trustee or the Note
Custodian, at the direction of the Trustee,
shall, in accordance with the standing
instructions and procedures existing between
the Depositary and the Note Custodian, cause
the aggregate principal amount of Global
Notes to be reduced accordingly and,
following such reduction, the Company shall
execute and, upon receipt of an
authentication order in accordance with
Section 2.2 hereof, the Trustee shall
authenticate and deliver to the transferee a
Definitive Note in the appropriate principal
amount.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a Global Note pursuant
to this Section 2.6(d) shall be registered in
such names and in such authorized
denominations as the Depositary, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such
Definitive Notes to the Persons in whose
names such Notes are so registered.
(e) Transfer from Restricted Global Note to Regulation S
Global Note. If a holder of a beneficial interest in the Restricted Global
Note deposited with DTC wishes at any time to exchange its interest in such
Restricted Global Note for an interest in the Regulation S Global Note, or to
transfer its interest in such Restricted Global Note to a Person who wishes to
take delivery thereof in the form of an interest in such Regulation S Global
Note, such holder may, subject to the rules and procedures of DTC and to the
requirements set forth in the following sentence, exchange or cause the
exchange or transfer or cause the transfer of such interest for an equivalent
beneficial interest in such Regulation S Global Note. Upon receipt by the
Trustee, as Transfer Agent, at its office in The City of New York of (1)
instructions given in accordance with DTC's procedures from or on behalf of a
holder of a beneficial interest in the Restricted Global Note, directing the
Trustee, as Transfer Agent, to credit or cause to be credited a beneficial
interest in the Regulation S Global Note in an amount equal to the beneficial
interest in the Restricted Global Note to be exchanged or transferred, (2) a
written order given in accordance with DTC's procedures containing information
regarding the Euroclear or Cedel Bank account to be credited with such increase
and the name of such account, and (3) a certificate in the form of Exhibit C
given by the holder of such beneficial interest stating that the exchange or
transfer of such interest has been made pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S or Rule 144 under the Securities Act, the
Trustee, as Transfer Agent, shall promptly deliver appropriate instructions to
DTC, its nominee, or the custodian for DTC, as the case may be, to reduce or
reflect on its records a reduction of the Restricted Global Note by the
aggregate principal amount of the beneficial interest in such Restricted Global
Note to be so exchanged or transferred from the relevant participant, and the
Trustee, as Transfer Agent, shall promptly deliver appropriate instructions to
DTC, its nominee, or the custodian for DTC, as the case may be, concurrently
with such reduction, to increase or reflect on its records an increase of the
principal amount of such Regulation S Global Note by the aggregate principal
amount of the beneficial interest in such Restricted Global Note to be so
exchanged or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions (who shall be the agent member of
Euroclear or Cedel Bank, or both, as the case may be) a beneficial interest in
such Regulation S Global Note equal to the reduction in the principal amount of
such Restricted Global Note.
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(f) Transfer from Regulation S Global Note to Restricted
Global Note. If a holder of a beneficial interest in the Regulation S Global
Note wishes at any time to exchange its interest in such Regulation S Global
Note for an interest in the Restricted Global Note, or to transfer its interest
in such Regulation S Global Note to a Person who wishes to take delivery
thereof in the form of an interest in such Restricted Global Note, such holder
may, subject to the rules and procedures of Euroclear or Cedel Bank and DTC, as
the case may be, and to the requirements set forth in the following sentence,
exchange or cause the exchange or transfer or cause the transfer of such
interest for an equivalent beneficial interest in such Restricted Global Note.
Upon receipt by the Trustee, as Transfer Agent, at its office in The City of
New York of (l) instructions given in accordance with the procedures of
Euroclear or Cedel Bank and DTC, as the case may be, from or on behalf of a
beneficial owner of an interest in the Regulation S Global Note directing the
Trustee, as Transfer Agent, to credit or cause to be credited a beneficial
interest in the Restricted Global Note in an amount equal to the beneficial
interest in the Regulation S Global Note to be exchanged or transferred, (2) a
written order given in accordance with the procedures of Euroclear or Cedel
Bank and DTC, as the case may be, containing information regarding the account
with DTC to be credited with such increase and the name of such account, and
(3) prior to the expiration of the Restricted Period, a certificate in the form
of Exhibit D given by the holder of such beneficial interest and stating that
the Person transferring such interest in such Regulation S Global Note
reasonably believes that the Person acquiring such interest in such Restricted
Global Note is a Qualified Institutional Buyer (as defined in Rule 144A) and is
obtaining such beneficial interest in a transaction meeting the requirements of
Rule 144A and any applicable securities laws of any state of the United States
or any other jurisdiction, the Trustee, as Transfer Agent, shall promptly
deliver appropriate instructions to DTC, its nominee, or the custodian for DTC,
as the case may be, to reduce or reflect on its records a reduction of the
Regulation S Global Note by the aggregate principal amount of the beneficial
interest in such Regulation S Global Note to be exchanged or transferred, and
the Trustee, as Transfer Agent, shall promptly deliver appropriate instructions
to DTC, its nominee, or the custodian for DTC, as the case may be, concurrently
with such reduction, to increase or reflect on its records an increase of the
principal amount of such Restricted Global Note by the aggregate principal
amount of the beneficial interest in such Regulation S Global Note to be so
exchanged or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in such
Restricted Global Note equal to the reduction in the principal amount of such
Regulation S Global Note. After the expiration of the Restricted Period, the
certification requirement set forth in clause (3) of the second sentence of
this Section 2.6(f) will no longer apply to such transfers.
(g) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (h) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(h) Authentication of Definitive Notes in Absence of
Depositary. If at any time:
(i) the Depositary for the Notes notifies the
Company that the Depositary is unwilling or
unable to continue as Depositary for the
Global Notes or, if at any time such
Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a
successor Depositary for the Global Notes is
not appointed by the Company within 90 days
after delivery of such notice; or
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(ii) the Company, at its sole discretion, notifies
the Trustee in writing that it elects to
cause the issuance of Definitive Notes under
this Indenture in exchange for all or any
part of the Notes represented by a Global
Note or Global Notes,
the Depositary or the Note Custodian shall surrender such Global Note to the
Trustee, without charge, and then the Company shall execute, and the Trustee
shall, upon receipt of an authentication order in accordance with Section 2.2
hereof, authenticate and deliver in exchange for such Global Notes, Definitive
Notes in an aggregate principal amount equal to the principal amount of such
Global Notes. Such Definitive Notes shall be registered in such names as the
Depositary shall direct in writing.
(i) Legends.
(i) Except as permitted by the following
paragraphs (ii), and (iii), each Note
certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in
exchange therefor or substitution thereof)
shall bear legends in substantially the
following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES THAT IT WILL NOT
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE DATE OF ORIGINAL ISSUANCE OF
THIS NOTE AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS NOTE (THE "RESALE
RESTRICTION TERMINATION DATE") RESELL, PLEDGE
OR OTHERWISE TRANSFER THIS NOTE, EXCEPT (A)
TO THE COMPANY, (B) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON WHOM
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH THE RESALE PROVISIONS OF RULE 144A, (C)
PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE RESALE LIMITATIONS PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (BASED UPON AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY IF THE COMPANY SO REQUESTS) SUBJECT
IN EACH OF THE FOREGOING CASES TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF
ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT
BE AT ALL TIMES WITHIN ITS CONTROL AND TO
COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THE FOREGOING RESTRICTIONS ON RESALE
WILL NOT APPLY SUBSEQUENT TO THE RESALE
RESTRICTION TERMINATION DATE.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer
Restricted Security represented by a Global
Note) pursuant to Rule 144 under the
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Securities Act or pursuant to an effective
registration statement under the Securities
Act:
(A) in the case of any Transfer
Restricted Security that is a
Definitive Note, the Registrar shall
permit the Holder thereof to
exchange such Transfer Restricted
Security for a Definitive Note that
does not bear the legend set forth
in (i) above and rescind any
restriction on the transfer of such
Transfer Restricted Security; and
(B) in the case of any Transfer
Restricted Security represented by a
Global Note, such Transfer
Restricted Security shall not be
required to bear the legend set
forth in (i) above, but shall
continue to be subject to the
provisions of Section 2.6(c) hereof;
provided, however, that with respect
to any request for an exchange of a
Transfer Restricted Security that is
represented by a Global Note for a
Definitive Note that does not bear
the legend set forth in (i) above,
which request is made in reliance
upon Rule 144, the Holder thereof
shall certify in writing to the
Registrar that such request is being
made pursuant to Rule 144 (such
certification to be substantially in
the form of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the
Company shall issue and, upon receipt of an
authentication order in accordance with
Section 2.2 hereof, the Trustee shall
authenticate Series B Notes in exchange for
Series A Notes accepted for exchange in the
Exchange Offer, which Series A Notes shall
not bear the legend set forth in (i) above,
and the Registrar shall rescind any
restriction on the transfer of such Notes, in
each case unless the Holder of such Series A
Notes is either (A) a broker-dealer, (B) a
Person participating in the distribution of
the Series A Notes or (C) a Person who is an
affiliate (as defined in Rule 144A) of the
Company.
(j) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, all Global Notes shall be
returned to or retained and cancelled by the Trustee or its agent in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for Definitive Notes,
redeemed, repurchased or cancelled, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note, by the Trustee or the Notes Custodian, at the
direction of the Trustee, to reflect such reduction.
(k) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the
Trustee shall authenticate Definitive Notes
and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder
for any registration of transfer or exchange,
but the Company may require payment of a sum
sufficient to cover any transfer tax or
similar governmental charge payable in
connection therewith (other than any such
transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to
Sections 2.2, 2.10, 3.6, 3.7, 4.10, 4.14 and
9.5 hereto).
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(iii) All Definitive Notes and Global Notes issued
upon any registration of transfer or exchange
of Definitive Notes or Global Notes shall be
the valid obligations of the Company,
evidencing the same debt, and entitled to the
same benefits under this Indenture, as the
Definitive Notes or Global Notes surrendered
upon such registration of transfer or
exchange.
(iv) Neither the Registrar nor the Company shall
be required:
(A) to issue, to register the transfer
of or to exchange Notes during a
period beginning at the opening of
business 15 Business Days before the
day of any selection of Notes for
redemption under Section 3.2 hereof
and ending at the close of business
on the day of selection; or
(B) to register the transfer of or to
exchange any Note so selected for
redemption in whole or in part,
except the unredeemed portion of any
Note being redeemed in part; or
(C) to register the transfer of or to
exchange a Note between a record
date and the next succeeding
Interest Payment Date.
(v) The Trustee shall authenticate Definitive
Notes and Global Notes in accordance with the
provisions of Section 2.2 hereof.
(l) Certain Transfers in Connection with and after the
Exchange Offer. Notwithstanding any other provision
of this Indenture: (i) no Series B Note may be
exchanged by the Holder thereof for a Series A Note;
(ii) accrued and unpaid interest on the Series A
Notes being exchanged in the Exchange Offer shall be
due and payable on the next Interest Payment Date for
the Series B Notes following the Exchange Offer; and
(iii) interest on the Series B Notes to be issued in
the Exchange Offer shall accrue from the date of the
Exchange Offer.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall, upon the written
request of the Holder thereof, issue and the Trustee, upon the written order of
the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by such Holder that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
The provisions of this Section 2.7 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.
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Section 2.8. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it (or its agent),
those delivered to it (or its agent) for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance with the
provisions hereof, and those described in this Section as not outstanding.
Except as set forth in Section 2.9 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note (other than a mutilated Note surrendered for
replacement) is held by a bona fide purchaser (as such term is defined in
Section 8-302 of the Uniform Commercial Code as in effect in the State of New
York).
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, Cash
or Cash Equivalents sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.
Section 2.9. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee has actual knowledge are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes.
Until such exchange, Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee or
its Agent for cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee (or its Agent) and no one else shall cancel
all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all cancelled Notes shall be delivered to the Company from time
to time. The Company may not issue new Notes to replace Notes that it has paid
or that have been delivered to the Trustee (or
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its Agent) for cancellation. If the Company acquires any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee (or its Agent) for cancellation pursuant to this
Section 2.11.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.1 hereof. 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. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such defaulted interest to be paid.
Section 2.13. Persons Deemed Owners.
Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent, the Company and any agent of the foregoing
shall deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for all purposes (including the purpose of
receiving payment of principal of and interest on such Notes; provided that
defaulted interest shall be paid as set forth in Section 2.12), and none of the
Trustee, any Agent, the Company or any agent of the foregoing shall be affected
by notice to the contrary.
Section 2.14. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will print CUSIP
numbers on the Notes, and the Trustee may use CUSIP numbers in notices of
redemption and purchase as a convenience to Holders; provided, however, that
any such notices may state that no representation is made as to the correctness
of such numbers as printed on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
or purchase shall not affected by any defect or omission in such numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee), an Officers' Certificate setting
forth (i) the clause of Section 3.7 pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed, (iv) the redemption price and accrued and unpaid interest and (v)
whether it requests the Trustee to give notice of such redemption. Any such
notice may be
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cancelled at any time prior to the mailing of notice of such redemption to any
Holder and shall thereby be void and of no effect.
Section 3.2. Selection of Notes to Be Redeemed.
If fewer than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the
Notes in compliance with the requirements of any applicable Depositary and
securities exchange requirements or, if the Notes are not so listed, on a pro
rata basis, by lot or in accordance with any other method the Trustee considers
fair and appropriate and in such manner as complies with any such requirements
and any applicable legal requirements; provided that no Notes of $1,000
principal amount or less shall be redeemed in part. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the redemption date by the Trustee from the outstanding Notes not previously
called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price and accrued and unpaid interest;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date and the only remaining right
of the Holders of such Notes is to receive payment of the redemption
price upon surrender to the Paying Agent of the Notes redeemed;
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(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date (unless a shorter period is acceptable to the Trustee), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
Section 3.4. Effect of Notice of Redemption.
Unless otherwise stated therein, once notice of redemption is
mailed in accordance with Section 3.3 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price.
Section 3.5. Deposit of Redemption Price.
On or prior to the redemption date, the Company shall deposit
with the Paying Agent (other than the Company or any of its Subsidiaries) money
sufficient in same day funds to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any money deposited with the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed. If the money is deposited on
the redemption date, such deposit shall be made by 10:00 a.m. Dallas, Texas
time.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption whether or not such
Notes are presented for payment, and the only remaining right of the Holders of
such Notes shall be to receive payment of the redemption price upon surrender
to the Paying Agent of the Notes redeemed. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal from the redemption date until
such principal is paid and to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1 hereof.
Section 3.6. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
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Section 3.7. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.7,
the Company shall not have the option to redeem the Notes pursuant to this
Section 3.7 prior to August 1, 2003. Thereafter, the Notes will be subject to
redemption at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve month period beginning on August 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003 104.250%
2004 102.833%
2005 101.417%
2006 and thereafter 100.000%
(b) Notwithstanding the foregoing, on and prior to February
1, 2001, the Company may redeem up to 35% of the aggregate principal amount of
the Notes originally outstanding at a redemption price of 108.5% of the
principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date, with the net proceeds of one or more Equity Offerings of the
Company or, if applicable, a Parent; provided that at least 65% of the
aggregate principal amount of the Notes originally issued remains outstanding
immediately after the occurrence of such redemption (but such unredeemed Notes
may be redeemed pursuant to the optional redemption procedure described in
Section 3.7(a)); and provided, further, that such notice of redemption shall be
given not later than 30 days, and such redemption shall occur not later than 90
days, after the date of the closing of any such Equity Offering.
(c) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 3.8. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.14 hereof, the
Company shall not be required to make mandatory redemption payments with
respect to the Notes.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes.
The Company shall pay or cause to be paid in New York, New
York the principal of, premium, if any, and interest on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City
time on the due date money deposited by the Company in same day funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. The Paying Agent shall return to the Company, no later than
three Business Days following the date of payment, any money (including accrued
interest) in excess of the amounts paid on the Notes.
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The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at a
rate equal to 1% per annum in excess of the then applicable interest rate on
the Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law to the extent that such
interest is an allowed claim against the debtor under such Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company shall 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.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the 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
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
Section 4.3. Provisions of Reports and Other Information.
(a) Whether or not required by the rules and regulations of
the Commission, so long as any Notes are outstanding, the Company will furnish
to the Trustee and the Holders of Notes (i) all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Company were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial position and results of
operations of the Company and its Subsidiaries and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports. In addition, whether or not required by the rules and regulations of
the Commission, the Company will file a copy of all such information and
reports with the Commission for public availability (unless the Commission will
not accept such a filing) and make such information available to prospective
investors upon request. The Company shall include an unaudited consolidating
balance sheet and related statements of income and cash flows for the Company
and its Subsidiaries, separately identifying the Company and its Restricted
Subsidiaries as one group and the Company's Unrestricted Subsidiaries as a
separate group, in all reports containing the consolidated financial statements
(which in the case of annual reports shall be audited) of the Company and its
consolidated Subsidiaries which are required to be delivered by the Company to
the Securityholders pursuant to this Section 4.3, including the Company's
Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q. If required by
the terms thereof, the Company shall also comply with the provisions of TIA
Section 314(a).
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(b) So long as any of the Transfer Restricted Securities
remain outstanding, the Company shall furnish to the Holders of the Transfer
Restricted Securities and to prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) If the Company instructs the Trustee to distribute any of
the documents described in Section 4.3(a) to the Holders, the Company shall
provide the Trustee with a sufficient number of copies of all such documents
that the Company may be required to deliver to such Holders.
Section 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 45
days after the end of each of the first three fiscal quarters of each year, and
within 90 days after the end of the last fiscal quarter of each year, an
Officers' Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal quarter, or fiscal year, as
appropriate, has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, or
interest on, the Notes are prohibited or, if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.3 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.
Section 4.5. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except (i) such as are contested in good faith and by
appropriate proceedings or (ii) such as for which reserve or other appropriate
provision, if any, as shall be required to be in conformity with GAAP, has been
made therefor, or (iii) where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.
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Section 4.6. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that 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 shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.7. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly: (i) declare or pay any dividend
on, or make any distribution to the holders of, any Capital Stock of the
Company or a Restricted Subsidiary, other than dividends or distributions (A)
from a Restricted Subsidiary of the Company to the Company or to a Restricted
Subsidiary or (B) payable in Capital Stock of the Company that is not
Disqualified Stock; (ii) repay, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any of its Subsidiaries (other than Wholly
Owned Subsidiaries of the Company that are Restricted Subsidiaries), other than
a Permitted Investment; (iii) prepay, repay, redeem, defease or otherwise
acquire or retire for value prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company
that is pari passu with or subordinated in right of payment to the Notes, other
than a Permitted Investment and except (A) as permitted pursuant to clause
(vii) of Section 4.9(b), (B) upon a change of control, as defined in and to the
extent required by the indenture or other agreement or instrument pursuant to
which such pari passu or subordinated Indebtedness was issued, provided the
Company is then in compliance with the provisions of Section 4.14, (C) any
payment pursuant to a Pari Passu Offer and (D) any prepayment, repayment,
redemption, defeasance or other acquisition or retirement for value of (1) the
Senior Subordinated Notes or (2) other Indebtedness of the Company that is pari
passu with the Notes if such prepayment, repayment, redemption, defeasance or
other acquisition or retirement for value of such other Indebtedness is made
contemporaneously with (and pro rata with) a prepayment, repayment, redemption,
defeasance or other acquisition or retirement for value of the Notes; or (iv)
make any Investment other than a Permitted Investment or as permitted under
clauses (ii) and (iii) above (the foregoing actions set forth in clauses (i)
through (iv) being referred to hereinafter as "Restricted Payments"), if at the
time of any such Restricted Payment, and after giving effect thereto on a pro
forma basis:
(A) a Default or Event of Default shall have occurred and be
continuing or would result therefrom; or
(B) the aggregate amount of all Restricted Payments declared
or made after the Start Date including such Restricted Payment (the
value of any such payment, if other than cash, shall be the value
determined in good faith by resolution of the Board of Directors)
shall exceed the sum of: (1) 50% of the aggregate Consolidated Net
Income (after deducting from such Consolidated Net Income accrued but
unpaid compensation expenses related to any stock appreciation or
stock option plans net of tax benefits), or, in the event such
aggregate Consolidated Net Income shall be a loss, minus 100% of such
loss, of the Company and its Restricted Subsidiaries earned subsequent
to the Start Date to the end of the fiscal quarter immediately
preceding the date of such Restricted Payment (treated as a single
accounting period), plus (2) the aggregate net proceeds received by
the Company from the issuance or sale (other than to a Subsidiary of
the Company) of Capital Stock of the Company, including any such
shares issued upon exercise of any warrants, options or similar rights
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(other than Disqualified Stock), subsequent to the Start Date, plus
(3) the aggregate net proceeds received by the Company from the
issuance or sale of Indebtedness that is convertible into Capital
Stock after the Start Date, to the extent that such Indebtedness is
actually converted into Capital Stock (other than Disqualified Stock),
plus (4) the aggregate net proceeds received after the Start Date by
the Company as capital contributions to the Company (other than from a
Subsidiary), plus (5) an amount equal to the net reduction in
Investments resulting from payments of principal of Indebtedness,
return of capital and other transfers of assets, in each case to the
Company or any Restricted Subsidiary of the Company (but excluding any
such amounts included in Consolidated Net Income), or from
designations of Unrestricted Subsidiaries as Restricted Subsidiaries,
plus (6) $15 million.
(b) The foregoing provisions of this Section 4.7 shall
not prohibit:
(i) the payment of any dividend within 60 calendar days
after the date of declaration thereof, if at the date
of declaration such dividend would have complied with
the provisions of this Indenture;
(ii) the repayment, redemption, acquisition or retirement
for value of any Capital Stock of the Company or any
of its Subsidiaries in exchange for, or out of the
aggregate net proceeds of, a substantially concurrent
issuance (other than to the Company or any of its
Restricted Subsidiaries) of Capital Stock of the
Company or a Restricted Subsidiary of the Company;
(iii) the prepayment, repayment, redemption, defeasance or
other acquisition or retirement for value prior to
any scheduled maturity, scheduled repayment or
scheduled sinking fund payment of any Indebtedness of
the Company that is pari passu with or subordinated
in right of payment to the Notes, in exchange for, or
out of the aggregate net proceeds of, a substantially
concurrent issuance (other than to the Company or a
Restricted Subsidiary) of Capital Stock of the
Company or a Restricted Subsidiary of the Company;
(iv) the prepayment, repayment, redemption, defeasance or
other acquisition or retirement for value prior to
any scheduled maturity, scheduled repayment or
scheduled sinking fund payment of any Indebtedness of
the Company that is pari passu with or subordinated
in right of payment to the Notes, in exchange for, or
out of the aggregate net proceeds of, a substantially
concurrent issuance (other than to the Company or a
Restricted Subsidiary) of Indebtedness of the Company
that is pari passu with or subordinated in right of
payment to, the Notes, but only if the Weighted
Average Life and period of time to Stated Maturity of
such new Indebtedness are each greater than the
Weighted Average Life and period of time to Stated
Maturity of such retired Indebtedness; and
(v) the payment of any dividend or distribution to any
holder of Capital Stock of a Restricted Subsidiary of
the Company, other than a holder that is an Affiliate
of the Company (except a holder that is an Affiliate
of the Company solely by virtue of the ownership of
such Capital Stock), as part of a pro rata dividend
or distribution to all holders of such class or
series of Capital Stock (but only the amount of such
dividend or distribution paid to a Person other than
the Company or a Restricted Subsidiary of the Company
shall constitute a Restricted Payment).
For purposes of calculating the aggregate amount of Restricted
Payments made pursuant to Section 4.7(a)(B) above, payments made under this
Section 4.7(b) (other than under clause (iv) hereof)
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shall be included in such amount; provided that dividends paid within 60
calendar days of the date of declaration shall be deemed to be paid at the date
of declaration.
Section 4.8. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any of the
Restricted Subsidiaries of the Company to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of such Restricted Subsidiary to (i)
pay dividends or make any other distributions on its Capital Stock, or pay any
Indebtedness, owed to the Company or any of its Restricted Subsidiaries, (ii)
make any Investment in the Company or any of its Restricted Subsidiaries, (iii)
transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries or (iv) guarantee any Indebtedness of the Company or
any of its Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (A) applicable law, (B) any
instrument governing Acquired Indebtedness permitted to be incurred under
Section 4.9 which encumbrances or restrictions are not applicable to any Person
or the properties or assets of any Person, other than the Person so acquired or
its Subsidiaries, or the property or assets of the Person so acquired or its
Subsidiaries, (C) any restrictions existing under agreements in effect on the
Initial Issuance Date, (D) any restrictions with respect to a Restricted
Subsidiary imposed pursuant to an agreement which has been entered into for the
sale or disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary, provided, that such disposition is permitted
pursuant to Section 4.10, (E) any agreement governing Indebtedness otherwise
permitted under the Indenture restricting the sale or other disposition of
property securing such Indebtedness if such agreement does not expressly
restrict the ability of a Restricted Subsidiary to pay dividends or to make
distributions, loans or advances, (F) the issuance of preferred stock by a
Restricted Subsidiary or the payment of dividends thereon in accordance with
the terms thereof, provided that issuance of such preferred stock is permitted
pursuant to Section 4.9 and the terms of such preferred stock do not expressly
restrict the ability of a Restricted Subsidiary to pay dividends or make any
other distributions on its Capital Stock (other than requirements to pay
dividends or liquidation preferences on such preferred stock prior to paying
any dividends or making any other distributions on such other Capital Stock),
(G) this Indenture, (H) the Credit Facility and other Senior Indebtedness, (I)
supermajority voting requirements existing under corporate charters, bylaws,
stockholders agreements and the like, (J) in the case of clause (iii) above,
agreements (1) that restrict in a customary manner the subletting, pledging,
assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, or (2) existing by virtue
of any transfer of, agreement to transfer, option or right with respect to, or
Lien on, any property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture, including, without limitation, transfer
restrictions on any specific properties or assets that are subject to a sale
agreement otherwise permitted pursuant Section 4.10, (K) existing under any
agreement which refinances or replaces any of the agreements in the preceding
clauses; provided, that the terms and conditions of any such restrictions are
not materially less favorable to the Holders than those contained in the
agreements refinanced or replaced or (L) any instrument governing Indebtedness
of the Company that is (1) pari passu with the Notes and (2) otherwise
permitted under this Indenture, provided that the terms and conditions of any
such restrictions are not materially more restrictive than those contained in
this Indenture. Nothing contained in this Section 4.8 shall prevent the Company
or any Restricted Subsidiary from (1) creating, incurring, assuming or
suffering to exist any Liens otherwise permitted under Section 4.12 or (2)
restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the Company
or any of its Restricted Subsidiaries.
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Section 4.9. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary of the Company to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to, any Indebtedness (collectively, an "incurrence"; with respect to
any non-interest bearing or other discount Indebtedness, an "incurrence" shall
be deemed to have occurred only on the date of original issuance thereof),
unless, after giving effect to the incurrence of such Indebtedness and the
application of the net proceeds therefrom, the EBITDA Ratio (as calculated on
the Determination Date) is greater than 2.0 to 1.0; provided that if the
Indebtedness which is the subject of a determination under this provision is
Acquired Indebtedness, then the Consolidated EBITDA 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 Indebtedness by the Company
and the inclusion in the Consolidated EBITDA of the Person whose Indebtedness
would constitute Acquired Indebtedness.
(b) Notwithstanding the foregoing, Indebtedness may be
incurred as follows:
(i) Indebtedness under the Credit Facility in an
aggregate principal amount not to exceed $195 million
at any one time outstanding, less the aggregate
amount of all permanent reductions thereto pursuant
to Section 4.10;
(ii) Indebtedness represented by amounts due under Hedging
Obligations (provided that the obligations under such
Hedging Obligations are related to Indebtedness
otherwise permitted by the terms of this Section 4.9
and that the aggregate notional principal amount of
such Hedging Obligations shall not exceed 105% of the
total amount of the related underlying Indebtedness);
(iii) Indebtedness represented by property, liability and
workers' compensation insurance, performance bonds
(which may be in the form of letters of credit) for
construction contracts let by the Company and its
Restricted Subsidiaries in the ordinary course of
business (provided that to the extent that such
performance bonds secure Indebtedness, such
Indebtedness is otherwise permitted under this
Section 4.9), surety bonds and appeal bonds (which,
in each case, may be in the form of letters of
credit) required in the ordinary course of business
or in connection with the enforcement of rights or
claims of the Company or any Restricted Subsidiary of
the Company or in connection with judgments that do
not result in a Default or an Event of Default;
(iv) Indebtedness of the Company evidenced by the Notes
and this Indenture and by the Senior Subordinated
Notes and the Senior Subordinated Indentures;
(v) Indebtedness owing to a Wholly Owned Subsidiary of
the Company that is a Restricted Subsidiary or to the
Company;
(vi) Acquired Indebtedness, provided that such
Indebtedness if incurred by the Company would be in
compliance with the first paragraph of this covenant;
(vii) Indebtedness issued in exchange for, or the proceeds
of which are used to repay or refund or refinance or
discharge or otherwise retire for value, Indebtedness
of the Company or any of its Restricted Subsidiaries
permitted under clauses (iv) and (vi) above, clause
(viii)
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below and Section 4.9(a) ("Refinancing Indebtedness")
in a principal amount not to exceed the principal
amount of the Indebtedness so refinanced plus any
premium and accrued interest plus customary fees,
expenses and costs related to the incurrence of such
Refinancing Indebtedness, provided that with respect
to any Refinancing Indebtedness which refinances
Indebtedness which ranks junior in right of payment
to the Notes, (A) such Refinancing Indebtedness is
subordinated in right of payment at least to the same
extent as the Indebtedness to be refunded or
refinanced if such Indebtedness had remained
outstanding and (B) the Refinancing Indebtedness has
a Weighted Average Life and Stated Maturity that are
equal to or greater than those of the Indebtedness to
be repaid or refunded or refinanced or discharged or
otherwise retired for value at the time of such
incurrence;
(viii) Indebtedness outstanding on the Initial Issuance
Date;
(ix) Indebtedness of the Company or a Restricted
Subsidiary of the Company to an Unrestricted
Subsidiary for money borrowed, provided, that such
Indebtedness is subordinated in right of payment to
the Notes and the Weighted Average Life of such
Indebtedness is greater than the Weighted Average
Life of the Notes; and
(x) other Indebtedness not to exceed $25 million.
Section 4.10. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of the
Restricted Subsidiaries of the Company to, make any Asset Disposition, unless
(i) the consideration received from such Asset Disposition is at least equal to
the Fair Market Value of the Capital Stock, property or other assets sold, (ii)
at least 75% of the consideration received from such Asset Disposition is in
the form of Cash, Temporary Cash Investments or Marketable Equity Securities
(the "75% Test"), provided that the amount of any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto) of the Company or such Restricted Subsidiary which are assumed
by the transferee, cancelled or satisfied in any Asset Disposition (other than
liabilities that are incurred in connection with or in anticipation of such
Asset Disposition) as a credit against the purchase price therefor shall be
deemed to be Cash to the extent of the amount so credited for purposes of the
75% Test, and (iii) the Company applies, or causes its Restricted Subsidiaries
to apply, 100% of the Net Proceeds from any Asset Disposition to an offer (a
"Net Proceeds Offer") to purchase Notes outstanding having a Net Proceeds Offer
Price at least equal to such Net Proceeds, such Net Proceeds Offer to commence
on a date not later than 360 calendar days after the date of such Asset
Disposition at a purchase price (the "Net Proceeds Offer Price") equal to 100%
of the principal amount thereof, plus accrued interest thereon to the closing
date of the Net Proceeds Offer (the "Net Proceeds Purchase Date"), except to
the extent that such Net Proceeds have been applied either to (i) the permanent
repayment of principal and interest on Senior Indebtedness or Indebtedness of
the Restricted Subsidiary of the Company that made such Asset Disposition or to
(ii) the purchase of assets or businesses in the same line of business as the
Company and its Restricted Subsidiaries or assets incidental thereto.
Notwithstanding anything to the contrary in this Section 4.10, the Company will
not be required to make a Net Proceeds Offer with respect to any Net Proceeds
from Asset Dispositions until the aggregate amount of Net Proceeds from Asset
Dispositions in any period of 12 consecutive months which are not applied
either to the permanent repayment of principal and interest on Indebtedness (as
described above) or to the purchase of assets or businesses (as described
above), exceeds $10 million. For purposes of this Section 4.10, the principal
amount of Notes for which a Net Proceeds Offer shall be made is referred to as
the "Net Proceeds Offer Amount."
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(b) To the extent required by any pari passu Indebtedness,
and provided there is a permanent reduction in the principal amount of such
pari passu Indebtedness, the Company shall simultaneously with the Net Proceeds
Offer make an offer to purchase such pari passu Indebtedness (a "Pari Passu
Offer") in an amount (the "Pari Passu Offer Amount") equal to the Net Proceeds
Offer Amount, as determined above, multiplied by a fraction, the numerator of
which is the outstanding principal amount of such pari passu Indebtedness and
the denominator of which is the sum of the outstanding principal amount of the
Notes and such pari passu Indebtedness, in which case the Net Proceeds Offer
Amount shall be correspondingly reduced by such Pari Passu Offer Amount.
(c) The Company may credit against its obligation to make a
Net Proceeds Offer pursuant to this Section 4.10 up to $2 million aggregate
principal amount of Notes, at 100% of the principal amount thereof, which have
been acquired by the Company and surrendered for cancellation after the making
of the Net Proceeds Offer and which have not been used as a credit against or
acquired pursuant to any prior obligation to make an offer to purchase Notes
pursuant to the provisions set forth under Section 4.14 or this Section 4.10.
(d) Upon notice of a Net Proceeds Offer provided to the
Trustee by the Company, notice of such Net Proceeds Offer shall be mailed by
the Trustee (at the Company's expense) not less than 30 calendar days nor more
than 60 calendar days before the Net Proceeds Purchase Date to each Holder of
Notes at such Holder's last registered address appearing in the Register. The
Company shall provide the Trustee with copies of all materials to be delivered
with such notice. The notice shall contain all instructions and material
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer. In such notice, the Company shall state: (1) that the Net Proceeds
Offer is being made pursuant to this Section 4.10 and that it will purchase the
principal amount of Notes equal to the Net Proceeds Offer Amount; (2) the Net
Proceeds Offer Price and the Net Proceeds Purchase Date; (3) that any Note not
tendered will continue to accrue interest; (4) that, unless the Company
defaults in the payment of the Net Proceeds Offer Price, all Notes accepted for
payment pursuant to the Net Proceeds Offer shall cease to accrue interest after
the Net Proceeds Purchase Date; (5) that Holders electing to have any Notes
purchased pursuant to such Net Proceeds Offer will be required to surrender the
Notes, and complete the section entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes or transfer beneficial ownership of such Notes by
book-entry transfer, to the Company, the Depositary (if appointed by the
Company), or the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Net Proceeds
Purchase Date; (6) that Holders will be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the close of business on the third Business Day preceding the
Net Proceeds Purchase Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing his election to
have the Notes purchased; and (7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer), provided that the principal amount of such unpurchased portion must
be equal to $1,000 or an integral multiple thereof. If Notes in a principal
amount in excess of the Net Proceeds Offer Amount are surrendered pursuant to
the Net Proceeds Offer, the Company shall purchase Notes on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000 or integral multiples of $1,000 shall be
acquired). The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Net Proceeds Offer.
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(e) On the Net Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof validly tendered pursuant to the
Net Proceeds Offer (on a pro rata basis if required), (ii) deposit with the
Paying Agent money in immediately available funds, sufficient to pay the
purchase price of all Notes or portions thereof so accepted, and (iii) deliver
to the Trustee Notes so accepted together with an Officer's Certificate stating
the Notes or portions thereof accepted for payment by the Company. If the
Company complies with its obligations set forth in the immediately preceding
sentence, whether or not a Default or Event of Default has occurred and is
continuing on the Net Proceeds Purchase Date, the Paying Agent shall as
promptly as practicable mail to each Holder of Notes so accepted payment in an
amount equal to the purchase price, and the Company shall execute and the
Trustee shall as promptly as practicable authenticate and mail or deliver to
such Holder a new Note equal in principal amount to any unpurchased portion of
the Note surrendered. Any Notes not so accepted shall be as promptly as
practicable mailed or delivered by the Company to the Holders thereof. The
Company shall publicly announce the results of the Net Proceeds Offer on or as
promptly as practicable after the Net Proceeds Purchase Date. For purposes of
this covenant, the Trustee shall act as the Paying Agent.
(f) Notwithstanding anything to the contrary contained in
this Indenture, the Company or any of its Restricted Subsidiaries may engage in
transactions in which theatre properties will be transferred in exchange for
one or more other theatre properties; provided that if the Fair Market Value of
the theatre properties to be transferred by the Company or such Restricted
Subsidiary, plus the Fair Market Value of any other consideration paid or
credited by the Company or such Restricted Subsidiary (the "Transaction Value")
exceeds $2 million, such transaction shall require approval of the Board of
Directors. In addition, each such transaction shall be valued at an amount
equal to all consideration received by the Company or such Restricted
Subsidiary in such transaction, other than the theatre properties received
pursuant to such exchange ("Other Consideration"), for purposes of determining
whether an Asset Disposition has occurred. If the Other Consideration is of an
amount and character such that such transaction constitutes an Asset
Disposition, then Section 4.10(a) shall be applicable to any Net Proceeds of
such Other Consideration.
Section 4.11. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, enter into any
transaction (including without limitation the purchase, sale, lease or exchange
of any property or the rendering of any service) with a Person that,
immediately prior to such transaction, was an Affiliate (an "Affiliate
Transaction"), 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 arms' length transaction with an entity that is not an Affiliate;
provided that continued performance under agreements as in effect on the
Initial Issuance Date and described in the Offering Memorandum, or
consummation, on the terms described in the Offering Memorandum, of
transactions described therein that are not consummated prior to the Initial
Issuance Date (and renewals and extensions of such agreements and transactions
on terms not materially less favorable to the Holders than the terms of such
original agreements and transactions), shall not be subject to such limitation.
In addition, the Company shall not, and shall not permit any
of the Restricted Subsidiaries of the Company to, enter into (i) an Affiliate
Transaction involving or having an expected value of more than $2 million
unless such transaction shall have been approved in good faith by resolution of
the Board of Directors and such resolution provides that such Affiliate
Transaction complies with the requirements of this Section 4.11 or (ii) an
Affiliate Transaction involving or having an expected value of more than $15
million, unless the Company has received an opinion of a nationally recognized
independent investment banking firm, accounting firm, appraisal firm or other
experts of nationally recognized
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standing if, in each case, such firm is regularly engaged to render opinions of
such type, to the effect that the transaction is fair to the Company (or, if
the Company is not a party to such Affiliate Transaction, then to such
Restricted Subsidiary) from a financial point of view.
Notwithstanding anything to the contrary contained in this
Indenture, the foregoing provisions shall not apply to (i) transactions between
the Company and a Wholly Owned Subsidiary of the Company that is a Restricted
Subsidiary or between Wholly Owned Subsidiaries of the Company that are
Restricted Subsidiaries, (ii) payments required to be made to the Company by
Cinemark International or by any Subsidiary of Cinemark International under the
Cinemark International Management Agreement or under a Subsidiary management
agreement, as the case may be, (iii) payments pursuant to any tax sharing
agreement or arrangement among the Company and its Subsidiaries, (iv)
transactions with any current or former employee, officer or director of the
Company or any of its Restricted Subsidiaries pursuant to reasonable employee
benefit plans or compensation arrangements or agreements entered into in the
ordinary course of business on or prior to the Start Date, or amended or
created thereafter with the approval of the Board of Directors, (v)
transactions with any employee of the Company pursuant to which the Company
purchases or otherwise acquires Capital Stock of the Company from such employee
as permitted under Section 4.7, or (vi) transactions constituting (A) a
Restricted Payment not prohibited by Section 4.7 and not constituting a
Permitted Investment, or (B) an investment not constituting an "Investment" by
reason of a specific exclusion from such definition.
Section 4.12. Limitation on Liens.
The Company shall not, and shall not permit any of the
Restricted Subsidiaries of the Company to, create, incur, assume or suffer to
exist any Lien upon any of its property or assets (including assets acquired
after the Initial Issuance Date), except for:
(i) Liens incurred after the Initial Issuance Date
securing Indebtedness 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
Indebtedness;
(ii) Liens outstanding on the Initial Issuance Date;
(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 GAAP;
(iv) Landlords', carriers', warehousemen's, mechanics',
materialmen'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 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
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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 Indebtedness, 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 Indebtedness;
(x) Liens in favor of the Trustee for its own benefit and
for the benefit of the Securityholders;
(xi) any interest or title of a lessor pursuant to a lease
constituting a Capitalized Lease Obligation;
(xii) Liens on accounts receivable and inventory or cash
deposits collateralizing reimbursement obligations
with respect to letters of credit, in either case
securing Indebtedness permitted to be incurred under
clause (i) of Section 4.9(b);
(xiii) 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);
(xiv) Liens (including extensions and renewals thereof)
upon real or personal property acquired after the
Initial Issuance Date; provided that (a) such Lien is
created solely for the purpose of securing
Indebtedness incurred, in accordance with Section
4.9, (1) to finance the cost (including the cost of
improvement or construction) of the item of 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 Indebtedness
previously so secured, (b) the principal amount of
the Indebtedness secured by such Lien does not exceed
100% 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;
(xv) 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;
(xvi) Liens encumbering property or assets under
construction arising from progress or partial
payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or
assets;
(xvii) any interest or title of a lessor in the property
subject to any Capitalized Lease Obligation or
operating lease;
(xviii) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
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(xix) Liens on property of, or on shares of stock or
Indebtedness 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;
(xx) Liens in favor of the Company or any Restricted
Subsidiary;
(xxi) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of
customs duties in connection with the importation of
goods;
(xxii) Liens encumbering deposits securing Indebtedness
under Hedging Obligations;
(xxiii) 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;
(xxiv) Liens on or sales of receivables;
(xxv) 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; and
(xxvi) any renewal of or substitution for any Liens
permitted by any of the preceding clauses, provided
that the Indebtedness secured is not increased (other
than by any premium and accrued interest, plus
customary fees, expenses and costs related to such
renewal or substitution of Liens or the incurrence of
any related refinancing of Indebtedness) nor the
Liens extended to any additional assets (other than
proceeds and accessions).
The provisions of this Section 4.12 do not authorize the
incurrence of any Indebtedness not otherwise permitted by Section 4.9.
Section 4.13. Limitation on Layering Debt.
The Company will not incur, create, issue, assume, guarantee
or otherwise become liable for any Indebtedness that is subordinate or junior
in right of payment to any Senior Indebtedness of the Company but senior in any
respect in right of payment to the Notes.
Section 4.14. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company
shall be required to make an offer (a "Change of Control Offer") to Holders to
repurchase any and all of the Notes (but only in denominations of $1,000 or
integral multiples of $1,000) at a purchase price (the "Change of Control Offer
Price") equal to 101% of the aggregate principal amount, plus accrued and
unpaid interest thereon to the date of purchase ("Change of Control Purchase
Date").
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(b) Notice of a Change of Control Offer shall be mailed by
the Company, with a copy to the Trustee, or, at the Company's option, by the
Trustee (at the Company's expense) not more than 30 calendar days after the
Change of Control to each Holder of the Notes at such Holder's last registered
address appearing in the Register. In such notice, the Company shall describe
the transaction that constitutes the Change of Control and offer to repurchase
Notes pursuant to the procedures required by this Section 4.14 and described in
such notice. The notice shall contain all instructions and materials necessary
to enable Holders to tender Notes pursuant to the Change of Control Offer. In
addition, the notice shall state: (1) that the Change of Control Offer is
being made pursuant to this Section 4.14 and that all Notes tendered will be
accepted for payment; (2) the Change of Control Offer Price and the Change of
Control Purchase Date, which shall be no sooner than 60 nor later than 90 days
after the Change of Control; (3) that any Note not tendered will continue to
accrue interest; (4) that, unless the Company defaults in the payment of the
Change of Control Offer Price, all Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date; (5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to deliver the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Notes completed, or transfer by book-entry transfer, to the Company, the
Depositary (if appointed by the Company), or the Paying Agent at the address
specified in the notice prior to the close of business on the third Business
Day preceding the Change of Control Purchase Date; (6) that Holders will be
entitled to withdraw their election if the Company, the Depositary or the
Paying Agent, as the case may be, receives, not later than the close of
business on the third Business Day preceding the Change of Control Purchase
Date, a telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer), which
unpurchased portion must be equal to at least $1,000 in principal amount or an
integral multiple thereof. The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Notes as a result of a Change of Control.
(c) On the Change of Control Purchase Date, the Company shall
(i) accept for payment Notes or portions thereof validly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent money in
immediately available funds sufficient to pay the purchase price of all Notes
or portions thereof so accepted, and (iii) deliver to the Trustee Notes so
accepted together with an Officer's Certificate stating the Notes or portions
thereof accepted for payment by the Company. If the Company complies with its
obligations set forth in the immediately preceding sentence, whether or not a
Default or Event of Default has occurred and is continuing on the Change of
Control Purchase Date, the Paying Agent shall as promptly as practicable mail
or deliver to each Holder of Notes so accepted payment in an amount equal to
the purchase price, and the Company shall execute and the Trustee shall as
promptly as practicable authenticate and mail or deliver to such Holder a new
Note equal in principal amount to any unpurchased portion of the Note
surrendered, if any; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. Any Notes not so accepted
shall be as promptly as practicable mailed or delivered by the Trustee to the
Holders thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as promptly as practicable after the Change of Control
Purchase Date. For purposes of this Section 4.14, the Trustee shall act as the
Paying Agent.
(d) Prior to complying with the other provisions of this
Section 4.14, but in any event within 90 days following a Change of Control,
the Company shall either repay all outstanding Senior
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Indebtedness or obtain the requisite consents, if any, under all agreements
governing outstanding Senior Indebtedness to permit the repurchase of Notes
required by this Section 4.14.
Section 4.15. Corporate Existence.
Except as otherwise permitted pursuant to the terms hereof,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Significant Subsidiaries, in
accordance with their respective organizational documents (as the same may be
amended from time to time), and (ii) the material rights (charter and
statutory), licenses and franchises of the Company and its Significant
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise of itself or any of its
Significant Subsidiaries, or the corporate, partnership or other existence of
any of its Significant Subsidiaries, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Notes.
Section 4.16. Covenant with Respect to Cinemark International and its
Subsidiaries.
The Company shall cause Cinemark International and its
Subsidiaries on a consolidated basis to be engaged principally in the
acquisition, construction and operation of indoor motion picture theatres and
other activities incidental thereto outside the United States and Canada.
Section 4.17. Limitation on Restrictive Covenants.
Notwithstanding any other provision of this Indenture, the
restrictive covenants set forth in this Indenture, including, without
limitation, those set forth in Sections 4.7, 4.9, 4.10, 4.11 and 5.1 shall be
and shall be deemed limited to the extent necessary so that the creation,
existence and effectiveness of such restrictive covenants shall not result in a
breach of the covenant set forth in Section 4.8 of the Senior Subordinated
Indentures.
ARTICLE 5
SUCCESSORS
Section 5.1. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate with or merge with or into,
or sell, assign or lease all or substantially all of the properties and assets
of the Company and its Restricted Subsidiaries, taken as a whole, to any Person
(other than the Company or a Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary), or permit any Person (other than a Wholly Owned
Subsidiary of the Company that is a Restricted Subsidiary) to merge with or
into the Company unless:
(i) the Company shall be the continuing Person, or the
Person formed by such consolidation or into which the
Company is merged or to which the properties and
assets of the Company and its Restricted Subsidiaries
taken as a whole are transferred (the "surviving
entity") shall be a corporation organized and
existing under the laws of the United States or any
state thereof or the District of Columbia and shall
expressly assume, by a
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supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and the
Indenture, and the Indenture shall remain in full
force and effect;
(ii) immediately before and immediately after giving
effect to such transaction, no Event of Default and
no Default shall have occurred and be continuing;
(iii) unless the applicable transaction involves the merger
of a Restricted Subsidiary of the Company into the
Company, the Company or, in the case of a
consolidation or merger in which the Company is not
the continuing Person, the surviving entity, after
giving pro forma effect to such transaction, could
incur $1.00 of additional Indebtedness (assuming a
market rate of interest with respect to such
additional Indebtedness) pursuant to Section 4.9(a);
and
(iv) unless the applicable transaction involves the merger
of a Restricted Subsidiary of the Company into the
Company, immediately after giving effect to such
transaction, the Consolidated Net Worth of the
Company, or, in the case of a consolidation or merger
in which the Company is not the continuing Person,
the surviving entity, shall be equal to or greater
than the Consolidated Net Worth of the Company
immediately before such transaction.
Section 5.2. Successor Company Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made, shall succeed to, and be substituted for, and
may exercise every right and power of the Company under the Indenture with the
same effect as if such successor corporation had been named as the Company
therein; and thereafter, if the Company is dissolved following a transfer of
all or substantially all of its assets in accordance with this Indenture, the
Company shall be discharged and released from all obligations and covenants
under this Indenture and the Notes. The Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if one of the following shall
have occurred and be continuing:
(a) the Company defaults in the payment of (i) the
principal of (or premium, if any, on) any Notes when the same becomes
due and payable at maturity, by acceleration or otherwise, (ii) the
redemption price on any redemption date, or (iii) the Change of
Control Offer Price or the Net Proceeds Offer Price on the applicable
Offer Purchase Date relating to such Offer;
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(b) the Company defaults in the payment of interest on
any Note when the same becomes due and payable, which default
continues for a period of 30 calendar days;
(c) the Company or any Subsidiary of the Company fails to
comply with any of its covenants or agreements in the Notes or this
Indenture (other than those referred to in clauses (a) and (b) above)
and such failure continues for 45 calendar days after receipt by the
Company of a Notice of Default specifying such Default;
(d) an event of default on any other Indebtedness for
borrowed money of the Company or any of its Restricted Subsidiaries
having an aggregate amount outstanding in excess of $5 million which
default (i) is caused by a failure to pay when due (after giving
effect to any grace periods) any principal, premium, if any, or
interest on such Indebtedness or (ii) has caused the holders thereof
to declare such Indebtedness due and payable in advance of its
scheduled maturity;
(e) the Company or any Significant Subsidiary of the
Company pursuant to or within the meaning of any Bankruptcy Law: (i)
commences a voluntary case or proceeding, (ii) consents to the entry
of an order for relief against it in an involuntary case or
proceeding, (iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property, (iv) makes a general
assignment for the benefit of its creditors, or (v) admits in writing
its inability to pay its debts generally as they become due;
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against the
Company or any Significant Subsidiary of the Company in an involuntary
case or proceeding, (ii) appoints a Custodian of the Company or any
Significant Subsidiary of the Company or for all or substantially all
of its respective properties, or (iii) orders the liquidation of the
Company or any Significant Subsidiary of the Company; and in each case
the order or decree remains unstayed and in effect for 60 calendar
days; or
(g) final non-appealable judgments for the payment of
money which in the aggregate exceed $5 million (net of applicable
insurance coverage which is acknowledged in writing by the insurer)
shall be rendered against the Company or any Significant Subsidiary of
the Company by a court and shall remain unstayed or undischarged for a
period of 60 calendar days.
A Default under clause (c) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Notes at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default within 45 days after receipt of such notice. Such notice must be in
writing and specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default."
Notwithstanding the foregoing, if an Event of Default
specified in clause (d) above occurs and is continuing, such Event of Default
and all consequences thereof (including, without limitation, any acceleration
or resulting payment default) shall be annulled and rescinded, automatically
and without any action by the Trustee or the holders of the Notes, if (i) the
Indebtedness that is the subject of such Event of Default has been repaid, or
(ii) the default relating to such Indebtedness is waived or cured (and if such
Indebtedness has been accelerated, then the holders thereof have rescinded
their declaration of acceleration in respect of such Indebtedness).
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Section 6.2. Acceleration.
If any Event of Default specified in clauses (a), (b), (c),
(d) or (g) of Section 6.1 hereof occurs and is continuing, then the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes by
written notice to the Company and the Trustee may declare the unpaid principal
of, and any accrued interest on, all the Notes to be due and payable
immediately. If any Event of Default with respect to the Company specified in
clauses (e) or (f) of Section 6.1 hereof occurs, all outstanding principal and
interest on the Notes shall be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in aggregate principal amount of the Notes then outstanding, by
written notice to the Trustee and to the Company, may rescind an acceleration
(except an acceleration due to a default in payment of the principal of, or
premium or interest on, any of the Notes) if the rescission would not conflict
with any judgment or decree and if all existing Events of Default (except
nonpayment of principal, premium or interest that have become due solely
because of the acceleration) have been cured or waived.
Section 6.3. Other Remedies.
Subject to Section 6.2, if an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect any payment due on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
Subject to Section 9.2, Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may, on
behalf of the Holders of all of the Notes, waive an existing Default or Event
of Default and its consequences hereunder (including without limitation
acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.5. Control by Majority.
The Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of another Holder or that involves the Trustee
in personal liability. The Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction.
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Section 6.6. Limitation on Suits.
Subject to the provisions of Section 6.7 hereof, no Holder of
a Note may pursue any remedy with respect to this Indenture or the Notes
(including without limitation the institution of any proceeding, judicial or
otherwise, with respect to the Notes or this Indenture or for the appointment
of a receiver or trustee for the Company and/or any of its Subsidiaries)
unless:
(a) the Holder has given to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding have made a written request to
the Trustee to pursue the remedy;
(c) such Holders have offered to provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee has not complied with the request within
60 calendar days after receipt of the request and the offer of
indemnity; and
(e) during such 60-day period, the Holders of a majority
in aggregate principal amount of the Notes then outstanding have not
given the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.7. Rights of Holders of Notes to Receive Payment.
The right of any Holder of a Note to receive payment of
principal of, and premium, if any, and interest on, the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a) or (b)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for principal
of, and premium, if any, and interest on, the Notes and interest on overdue
principal and, to the extent lawful, interest, and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
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custodian 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 to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7 hereof. To the extent that the
payment of any such reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.7 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively; and
Third: the remainder to the Company or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, each party to this Indenture agrees, and each
Holder by its acceptance of its Notes shall be deemed to have agreed, that any
court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.7 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of its own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee shall not be liable hereunder
except for such duties of the Trustee which shall be
determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not such documents conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), and (c) of this Section 7.1.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability whatsoever in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers hereunder. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it in its sole subjective discretion (which
discretion shall be exercised in good faith) against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
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Section 7.2. Rights of Trustee.
(a) Subject to Section 7.1, the Trustee may conclusively
rely upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may consult with counsel and require an Officers' Certificate or an Opinion of
Counsel or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes in its sole subjective
discretion (which discretion shall be exercised in good faith) to be authorized
or within the rights or powers conferred upon it by this Indenture.
(e) The permissive right of the Trustee to act hereunder
shall not be construed as a duty.
(f) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(g) 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 unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee in its sole
subjective discretion (which discretion shall be exercised in good faith)
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(h) The Trustee shall not be required to take notice or
deemed to have notice of any Event of Default hereunder, except failure by the
Company to make any of the payments to the Trustee pursuant to Section 6.1(a)
or Section 6.1(b) hereof, unless the Trustee shall be specifically notified in
writing of such Event of Default by the Company or by one or more of the
Holders.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as such term is defined in TIA Section 310(b)), it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee (to the extent permitted under TIA Section 310(b)) or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company's use of the proceeds from the
Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein
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or any statement in the Notes or any other document in connection with the sale
of the Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after such event
occurs. Except in the case of a Default or Event of Default under Section
6.1(a) or (b), the Trustee may withhold such notice if it determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 7.6. Reports by Trustee to Holders of the Notes.
Within 60 days after each July 31 beginning with the July 31
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Notes are listed in accordance with and to
the extent required by TIA Section 313(d). The Company shall promptly notify
the Trustee if the Notes become listed on any stock exchange or automatic
quotation system.
Section 7.7. Compensation and Indemnity.
Absent any other agreement to the contrary, the Company shall
pay to the Trustee from time to time compensation as shall be agreed upon
between the Company and the Trustee for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon request for all reasonable disbursements, advances
and expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the
Company (including this Section 7.7) and defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith. The Trustee shall promptly
notify the Company of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel; provided that the Company will not be required to
pay such fees and expenses if it assumes the Trustee's defense with counsel
acceptable to and approved by the Trustee (such approval not to be unreasonably
withheld) and there is no conflict of interest between the Company and the
Trustee in connection with such defense. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse the Trustee
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for any expense or indemnity against any liability or loss of the Trustee to
the extent such expense, liability or loss is attributable to the negligence,
bad faith or willful misconduct of the Trustee.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(e) or (f) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2).
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing upon 60 days notice and be
discharged from the trust hereby created by so notifying the Company in
writing. The Holders of Notes of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing and may appoint a successor trustee with the consent of the
Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a receiver, Custodian or public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint or
request the Trustee to appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
of the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
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Section 8.2. Legal Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.6 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged pursuant to this Indenture:
(a) the rights of Holders of outstanding Notes to receive solely from the trust
fund described in Section 8.4 hereof, 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 Article 2 and Section 4.2 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, and subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, the Company shall be released from
its obligations under the covenants contained in Sections 4.4, 4.5, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 5.1, and 5.2 with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(c)
through 6.1(g) hereof shall not constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant
Defeasance, the Company must irrevocably deposit, or caused to be deposited,
with the Trustee (or another trustee satisfying the requirements of this
Indenture), in trust for such purpose, (1) money in an amount, (2) U.S.
Government Obligations which through the payment of principal and interest in
accordance with their terms will provide money in an amount, or (3) a
combination thereof, sufficient in the opinion of a nationally
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recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the principal of, and
premium, if any, and interest on, the outstanding Notes at maturity or upon
redemption, together with all other amounts payable by the Company under the
Indenture. Such Legal Defeasance or Covenant Defeasance will become effective
91 days after such deposit if and only if:
(i) no Default or Event of Default with respect
to the Notes shall have occurred and be continuing immediately
prior to the time of such deposit;
(ii) no Default or Event of Default pursuant to
Sections 6.1(e) or 6.1(f) shall have occurred at any time in
the period ending on the 91st day after the date of such
deposit and shall be continuing on such 91st day;
(iii) such defeasance does 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 (and, in furtherance of such condition, no
Default or Event of Default shall result under this Indenture
due to the incurrence of Indebtedness to fund such deposit and
the entering into of customary documentation in connection
therewith, even though such documentation may contain
provisions that would otherwise give rise to a Default or
Event of Default); and
(iv) the Company has delivered to the Trustee
(A)(1) in the case of Legal Defeasance, an Opinion of Counsel
to the effect that (x) 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 of Counsel shall confirm that, the
Holders of the Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not
occurred, or (2) in the case of Covenant Defeasance, an
Opinion of Counsel to the effect that the Holders of the Notes
will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred; and (B) an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to such Legal
Defeasance or Covenant Defeasance have been complied with.
Section 8.5. Discharge.
If (i) the Company shall deliver to the Trustee for
cancellation all Notes theretofore authenticated and delivered (other than any
Notes which shall have been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
and not theretofore cancelled, or (ii) all Notes not theretofore surrendered or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee, and the Company shall irrevocably deposit with the Trustee, as trust
funds solely for the benefit of the Holders for that purpose, an amount
sufficient to pay at maturity or upon redemption all of the Notes (other than
any Notes which shall have been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
not theretofore surrendered or delivered to the Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to such
date of maturity or redemption date, as the case may be, then this Indenture
shall
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cease to be of further force or effect (except as to rights of registration of
transfer or exchange of the Notes provided in this Indenture) and, at the
written request of the Company, accompanied by an Officer's Certificate and
Opinion of Counsel, each stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this Indenture have been
complied with, and upon payment of the costs, charges and expenses incurred or
to be incurred by the Trustee in relation thereto or in carrying out the
provisions of this Indenture, the Trustee shall satisfy and discharge this
Indenture ("Discharge"); provided that the Company's obligations with respect
to the payment of principal, premium, if any, and interest will not terminate
until the same shall apply the moneys so deposited to the payment to the
Holders of Notes of all sums due and to become due thereon.
Section 8.6. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.7 hereof, 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 8.6, the
"Trustee") pursuant to Section 8.4 or 8.5 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or any of its Subsidiaries or
Affiliates acting as 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, premium, if any, and interest but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to this Section 8.6 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in this Section 8.6 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4 hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance, Covenant
Defeasance or Discharge.
Section 8.7. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company or any of its Subsidiaries or Affiliates, in trust for
the payment of the principal of, or premium, if any, or interest on, any Note
and remaining unclaimed for one year after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company or any of its Subsidiaries or Affiliates) 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 or any of its Subsidiaries or
Affiliates 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 the
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a
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date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 8.8. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 8.2,
8.3 or 8.5 hereof, as the case may be, 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 Section 8.2, 8.3 or 8.5 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such assets in accordance
with Section 8.2, 8.3 or 8.5 hereof, as the case may be; provided, however,
that, if the Company makes any payment of principal of, or premium, if any, or
interest on, any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes.
Notwithstanding Section 9.2 of this Indenture, the Company and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to the Holders of Notes in the case of a merger or
consolidation pursuant to Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any such Holder; or
(e) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA
as then in effect.
Upon the request of the Company and upon receipt by the
Trustee of the documents described in Section 7.2 hereof, the Trustee shall
join with the Company in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained.
Section 9.2. With Consent of Holders of Notes.
Except as provided below in this Section 9.2, the Indenture or
the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes), and, subject to Sections 6.4 and
6.7 and the last sentence of Section
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6.1 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of principal of, premium, if any, or interest
on, the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee shall join with the Company in the execution of
such amended or supplemental Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental Indenture
that adversely affects its own rights, duties, liabilities or immunities under
this Indenture or otherwise.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof, the
Holders of a majority in principal amount of the Notes then outstanding may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of, or premium, if any, or interest on, the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, premium, if any, or interest on,
the Notes;
(g) waive a redemption payment with respect to any Note; or
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(h) make any change in the foregoing amendment and waiver
provisions.
In addition, any amendment to the provisions of Article 10 of
this Indenture requires the consent of the Holders of at least 66-2/3% in
aggregate principal amount of the Notes then outstanding if such amendment
would adversely affect the rights of Holders of the Notes.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent
Holder of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or
amendment has been approved by the requisite Holders. An amendment, supplement
or waiver becomes effective when approved by the requisite Holders and executed
by the Trustee (or, if otherwise provided in such waiver, supplement or
amendment, in accordance with its terms) and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment or waiver or revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date except to the
extent that the requisite number of consents to the amendment, supplement or
waiver have been obtained within such 90-day period or as set forth in the next
paragraph of this Section 9.4.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of clauses
(a) through (h) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same
indebtedness as the consenting Holder's Note.
Section 9.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue, and the Trustee shall
authenticate, new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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Section 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.1) shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
Section 9.7. Payments for Consent.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any
terms or provisions of the Notes unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Notes which so consent, waive
or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
ARTICLE 10
SUBORDINATION
Section 10.1. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note
agrees, that the payment of principal of, and premium, if any, and interest on,
and other Obligations evidenced by, the Notes is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full of all Senior Indebtedness (whether outstanding on the
date hereof or hereafter incurred), and that the subordination is for the
benefit of the holders of Senior Indebtedness.
Section 10.2. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, an assignment for the benefit of creditors or any marshalling of the
Company's assets and liabilities:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in Cash (or U.S. dollar-denominated Cash
Equivalents) of all Obligations due in respect of such Senior
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior
Indebtedness) before the Holders of Notes shall be entitled to receive
any payment of any kind or character with respect to the Notes; and
(2) until all Obligations with respect to Senior
Indebtedness are paid in full in Cash (or U.S. dollar-denominated
Cash Equivalents), any distribution to which the Holders of Notes
would be entitled but for this Article 10 shall be made to the holders
of such Senior Indebtedness.
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Notwithstanding the foregoing, Holders of Notes may receive
(i) securities that are subordinated at least to the same extent as the Notes
to Senior Indebtedness and any securities issued in exchange for Senior
Indebtedness and (ii) payments made from the trusts described in Sections 8.4
and 8.5 hereof.
Section 10.3. Default on Designated Senior Indebtedness.
The Company may not make any payment of any kind or character
upon or in respect of the Notes (other than in (i) securities that are
subordinated to the same extent as the Notes to Senior Indebtedness and any
securities issued in exchange for Senior Indebtedness and (ii) payments made
from the trusts described in Sections 8.4 and 8.5 hereof) if:
(i) a default in the payment of the principal of, premium, if
any, or interest on Designated Senior Indebtedness occurs and is
continuing; or
(ii) any other default occurs and is continuing with respect
to Designated Senior Indebtedness that permits holders of the
Designated Senior Indebtedness as to which such default relates to
accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from the Company or the holders
of any Designated Senior Indebtedness.
Payments on the Notes may and shall be resumed:
(a) in the case of default referred to in Section 10.3(i),
upon the date on which such default is cured or waived, and
(b) in case of a default referred to in Section 10.3(ii), upon
the earlier of (i) the date on which such default is cured or waived
or (ii) 179 days after the date on which the applicable Payment
Blockage Notice is received by the Trustee (unless the maturity of any
Designated Senior Indebtedness has been accelerated or unless the
provisions of this Article 10 otherwise do not permit such payment).
In no event shall more than one period of payment blockage be
made in any 360 consecutive day period. No nonpayment default that existed or
was continuing on the date of receipt by the Trustee of any Payment Blockage
Notice shall be, or be made, the basis for a subsequent Payment Blockage
Notice. Following the expiration of any period during which the Company is
prohibited from making payments on the Notes pursuant to a Payment Blockage
Notice, the Company will be obligated to resume making any and all required
payments in respect of the Notes, including without limitation any missed
payments.
Section 10.4. Acceleration of Notes.
The Company and the Trustee shall promptly notify holders of
Designated Senior Indebtedness if payment on the Notes is accelerated because
of an Event of Default.
Section 10.5. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any
payment of any Obligations with respect to the Notes at a time when the Trustee
or such Holder, as applicable, has actual knowledge that such payment is
prohibited by Section 10.3 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of and, upon written request, shall be
paid forthwith over and delivered to, the
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holders of Senior Indebtedness as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to
which Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of all Obligations with respect to
Senior Indebtedness remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
10, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
Section 10.6. Notice by the Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article 10, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Indebtedness as provided in this Article.
Section 10.7. Subrogation.
After all Senior Indebtedness is irrevocably paid in full in
Cash or U.S. dollar-denominated Cash Equivalents reasonably satisfactory to the
holders thereof and until the Notes are paid in full, Holders shall be
subrogated (equally and ratably with all other Indebtedness pari passu with the
Notes) to the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions otherwise
payable to the Holders have been applied to the payment of Senior Indebtedness.
A distribution made under this Article to holders of Senior Indebtedness that
otherwise would have been made to Holders is not, as between the Company and
Holders, a payment by the Company on the Notes.
Section 10.8. Relative Rights.
This Article defines the relative rights of Holders and
holders of Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors
of the Company other than their rights in relation to holders of
Senior Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
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If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default.
Section 10.9. Subordination May Not Be Impaired by the Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article. Only the Company or a
Representative may give the notice. Nothing in this Article 10 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.7
hereof.
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
Indebtedness (or a Representative of such holder) to establish that such notice
has been given by a holder of Senior Indebtedness (or a Representative of any
such holder). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 10, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 10, and if such
evidence is not furnished, the Trustee may defer any payment which it may be
required to make for the benefit of such Person pursuant to the terms of this
Indenture pending judicial determination as to the rights of such Person to
receive such payment.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
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Section 10.12. Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), such TIA-imposed
duties shall control.
Section 11.2. Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
Cinemark USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇.
▇▇
▇▇
If to the Trustee:
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
With a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇, L.L.P.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery, in each case to the
address shown above. Notwithstanding the foregoing, notices to the Trustee
shall only be effective upon actual receipt thereof by the Trustee at the
Corporate Trust Office of the Trustee.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.3. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
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Section 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.5 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.5 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) the opinion of such Person, that he or she 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 satisfied; and
(c) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 11.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 11.7. No Personal Liability of Directors, Officers, Employees and
Others.
No past, present or future director, officer, employee, agent,
manager, incorporator, stockholder or other Affiliate of the Company, as such,
shall have any liability for any obligations of the Company under any of the
Notes, this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 11.8. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES.
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Section 11.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 11.10. Successors.
This Indenture shall inure to the benefit of and be binding
upon the parties hereto and each of their respective successors and assigns,
except that the Company may not assign this Indenture or its obligations
hereunder except as expressly permitted by Sections 5.1 and 5.2. Without
limiting the generality of the foregoing, this Indenture shall inure to the
benefit of all Holders from time to time. Except as set forth in Article 10,
nothing expressed or mentioned in this Indenture is intended or shall be
construed to give any Person, other than the parties hereto, their respective
successors and assigns, and the Holders, any legal or equitable right, remedy
or claim under or in respect of this Indenture or any provision herein
contained.
Section 11.11. Severability.
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 11.12. Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 11.14. Counterparts.
This Indenture may be signed in counterparts and by the
different parties hereto in separate counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same instrument.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Indenture
this January 14, 1998.
CINEMARK USA, INC.
By:
------------------------------------
Name:
Title:
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
By:
------------------------------------
Name:
Title:
S-71
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================================================================================
Exhibit A
(Face of Note)
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be 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.(1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT IT WILL
NOT PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE DATE OF
ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (THE "RESALE RESTRICTION
TERMINATION DATE") RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE, EXCEPT (A)
TO THE COMPANY, (B) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON WHOM THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH THE
RESALE PROVISIONS OF RULE 144A, (C) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE RESALE LIMITATIONS PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
(BASED UPON AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY IF THE
COMPANY SO REQUESTS) SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT
OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT BE
AT ALL TIMES WITHIN ITS CONTROL AND TO COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE
FOREGOING RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO THE RESALE
RESTRICTION TERMINATION DATE.(2)
----------------------------------
(1.) This paragraph should be included only if the Note is issued in global
form.
(2.) This legend not required in the case of (1) a Note issued pursuant to
Section 2.6(i)(ii) of the Indenture or (2) a Series B Note issued
pursuant to Section 2.6(i)(iii) of the Indenture.
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CINEMARK USA, INC.
8-1/2% [Series A] [Series B] Senior Subordinated Notes due 2008
No. $__________
CUSIP #__________
Cinemark USA, Inc., a Texas corporation (the "Company")
promises to pay to
or registered assigns,
the principal sum of __________________________Dollars on August 1, 2008
Interest Payment Dates: February 1 and August 1, commencing on August 1, 1998
Record Dates: January 15 and July 15
Dated: _____________, 1998
CINEMARK USA, INC.
By:
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the
Notes referred to in the
within-mentioned Indenture:
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
By:
----------------------------------
Authorized Signatory
Dated:
-------------------------------
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(Back of Note)
8-1/2% [Series A] [Series B] Senior Subordinated Notes due 2008
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Notes will be limited in aggregate principal
amount to $105 million and will mature on August 1, 2008. The Company promises
to pay interest on the principal amount of this Note from the Initial Issuance
Date until maturity. The Company will pay interest semi-annually on February 1
and August 1 of each year, commencing August 1, 1998, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes will accrue at the rate of 8-1/2% per annum from
the most recent date to which interest has been paid or, if no interest has
been paid, from the Initial Issuance Date. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law to
the extent that such interest is an allowed claim enforceable against the
debtor under such Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at the rate equal to 1% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Notwithstanding any other provision of
the Indenture or this Note: (i) accrued and unpaid interest on the Series A
Notes being exchanged in the Exchange Offer shall be due and payable on the
next Interest Payment Date for the Series B Notes following the Exchange Offer,
(ii) interest on the Series B Notes to be issued in the Exchange Offer shall
accrue from the date the Exchange Offer is consummated and (iii) the Series B
Notes shall have no provisions for Liquidated Damages.
2. Method of Payment. The Company shall pay the principal of,
and premium and interest on, the Notes on the dates and in the manner provided
herein and in the Indenture. Principal of, and premium and interest on,
Definitive Notes will be payable, and Definitive Notes may be presented for
registration of transfer or exchange, at the office or agency of the Company
maintained for such purpose. Principal of, and premium and interest on, Global
Notes will be payable by the Company through the Trustee to the Depository in
immediately available funds. Holders of Definitive Notes will be entitled to
receive interest payments by wire transfer in immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 days prior to the applicable Interest Payment Date.
Such wire instructions, upon receipt by the Trustee, shall remain in effect
until revoked by such Holder. If wire instructions have not been received by
the Trustee with respect to any Holder of a Definitive Note, payment of
interest may be made by check in immediately available funds mailed to such
Holder at the address set forth upon the Register maintained by the Registrar.
3. Paying Agent and Registrar. Initially, U.S. Trust Company of
Texas, N.A., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity, except that none of the Company, its Subsidiaries or their Affiliates
shall act (i) as Paying Agent in connection with any redemption, offer to
purchase, discharge or defeasance, as otherwise specified in the Indenture, and
(ii) as Paying Agent or Registrar if a Default or Event of Default has occurred
and is continuing.
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4. Indenture.
The Company issued the Notes under an Indenture dated as of January
14,1998 (as such may be amended, supplemented or restated from time to time,
the "Indenture") between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
Notes are general unsecured obligations of the Company limited to $105 million
in aggregate principal amount.
The payment of principal of, and premium, if any, and interest on, and
other Obligations evidenced by, the Notes is subordinated in right of payment,
to the extent and in the manner provided in the Indenture, to the prior payment
in full of all present and future Senior Indebtedness (as defined in the
Indenture) of the Company. Each Holder of this Note, by accepting the same,
(i) agrees to such provisions, (ii) authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (iii) appoints
the Trustee to act as attorney-in-fact for any and all such purposes.
5. Optional Redemption.
The Notes will not be redeemable at the Company's option prior to
August 1, 2003, except as provided below. Thereafter, the Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice to the Holders, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the twelve month period beginning on August 1 of the
years indicated below:
YEAR PERCENTAGE
---- ----------
2003 . . . . . . . . . . . . . . . . . . . . . 104.250%
2004 . . . . . . . . . . . . . . . . . . . . . 102.833%
2005 . . . . . . . . . . . . . . . . . . . . . 101.417%
2006 and thereafter . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, on and prior to February 1, 2001, the
Company may redeem up to 35% of the aggregate principal amount of the Notes
originally outstanding at a redemption price of 108.5% of the principal amount
thereof, plus accrued and unpaid interest thereon to the redemption date, with
the net proceeds of one or more Equity Offerings of the Company or, if
applicable, a Parent, as described in Section 3.7 of the Indenture; provided
that at least 65% of the aggregate principal amount of the Notes originally
issued remains outstanding immediately after the occurrence of such redemption
(but such unredeemed Notes may be redeemed pursuant to the optional redemption
procedure described in the immediately preceding paragraph; and provided,
further, that such notice of redemption shall be given not later than 30 days,
and such redemption shall occur not later than 90 days, after the date of the
closing of any such Equity Offering. On and after the redemption date,
interest ceases to accrue on the Notes or portions thereof called for
redemption.
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6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. Repurchase at Option of Holder.
(a) Upon a Change of Control, the Company shall be required to
make an offer to Holders to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of each Holder's Notes at a purchase price equal to
101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon to the date of purchase as provided in, and subject to the
terms of, the Indenture.
(b) If the Company or any Restricted Subsidiary consummates any
Asset Disposition, the Company may be required, subject to the terms and
conditions of the Indenture, to utilize a certain portion of the proceeds
received from such Asset Disposition to repurchase Notes at a purchase price
equal to 100% of the principal amount thereof, plus accrued interest thereon to
the date of purchase.
8. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
10. Unclaimed Money . If money for the payment of principal,
premium or interest remains unclaimed for one year, the Trustee and the Paying
Agent will pay the money back to the Company at its request. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
11. Defeasance Prior to Redemption or Maturity. Subject to
certain conditions contained in the Indenture, the Company at any time may
terminate some or all of its obligations under the Notes and the Indenture if
the Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the principal of, and premium and interest on, the Notes to
redemption or maturity, as the case may be.
12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding, and any existing Default or Event or Default or compliance
with any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
Notes in case of a merger or consolidation, to
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make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under the TIA
as then in effect.
13. Defaults and Remedies. Events of Default include: (i)
default by the Company in the payment of (A) the principal of (or premium, if
any, on) any Notes when the same becomes due and payable at maturity, by
acceleration or otherwise, (B) the redemption price on any redemption date, or
(C) the Change of Control Offer Price or the Net Proceeds Offer Price on the
applicable Offer Purchase Date relating to such Offer; (ii) default by the
Company in the payment of interest on any Note when the same becomes due and
payable, which default continues for a period of 30 calendar days; (iii)
failure by the Company or any Subsidiary of the Company to comply with any of
its covenants or agreements in the Notes or the Indenture (other than those
referred to in clauses (i) and (ii) above), which failure continues for 45
calendar days after receipt by the Company of a Notice of Default specifying
such Default; (iv) an event of default on any other Indebtedness for borrowed
money of the Company or any of its Restricted Subsidiaries having an aggregate
amount outstanding in excess of $5 million which default (A) is caused by a
failure to pay when due (after giving effect to any grace periods) any
principal of, or premium, if any, or interest on, such Indebtedness or (B) has
caused the holders thereof to declare such Indebtedness due and payable in
advance of its scheduled maturity; (v) certain events of bankruptcy or
insolvency with respect to the Company or any Significant Subsidiary of the
Company; or (vi) the rendering of final non-appealable judgments for the
payment of money which in the aggregate exceed $5 million (net of applicable
insurance coverage which is acknowledged in writing by the insurer) against the
Company or any Significant Subsidiary of the Company by a court and which
remain unstayed or undischarged for a period of 60 calendar days.
A Default under clause (iii) of the immediately preceding paragraph is
not an Event of Default until the Trustee notifies the Company, or the Holders
of at least 25% in principal amount of the Notes at the time outstanding notify
the Company and the Trustee, of the Default and the Company does not cure such
Default within 45 days after receipt of such notice. Notwithstanding the
foregoing, if an Event of Default specified in clause (iv) of the immediately
preceding paragraph occurs and is continuing, such Event of Default and all
consequences thereof (including, without limitation, any acceleration or
resulting payment default) shall be annulled and rescinded, automatically and
without any action by the Trustee or the holders of the Notes, if (i) the
Indebtedness that is the subject of such Event of Default has been repaid, or
(ii) the default relating to such Indebtedness is waived or cured (and if such
Indebtedness has been accelerated, then the holders thereof have rescinded
their declaration of acceleration in respect of such Indebtedness). If any
Event of Default under clauses (i), (ii), (iii), (iv) or (vi) of the
immediately preceding paragraph occurs and is continuing, then the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes by
written notice to the Company and the Trustee may declare the unpaid principal
of, and any accrued interest on, all the Notes to be due and payable
immediately. If any Event of Default with respect to the Company specified in
clause (v) of the immediately preceding paragraph occurs, all outstanding
principal and interest on the Notes shall be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Trustee and to the Company, may rescind
an acceleration (except an acceleration due to a default in payment of the
principal of, or premium or interest on, any of the Notes) if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, premium or interest that have become
due solely because of the acceleration) have been cured or waived.
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If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect any
payment due, or to enforce the performance of any provision, under the Notes or
the Indenture. The Trustee may refuse to enforce the Indenture or the Notes
unless it receives reasonable indemnity or security. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except under clauses (i) or (ii) above) if it determines
that withholding notice is in their interest.
14. Trustee's Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee, subject to the
provisions of TIA Section 310.
15. No Recourse Against Others. A director, officer, employee,
agent, manager, incorporator, stockholder or other Affiliate of the Company, as
such, shall not have any liability for any obligations of the Company under any
of the Notes or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
18. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders under the Indenture,
Holders of Transfer Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED
AND CONSTRUED BY THE INTERNAL LAW OF THE STATE OF NEW YORK.
21. Successor Corporation. In the event a successor corporation
assumes all the obligations of the Company under the Notes and the Indenture,
pursuant to the terms thereof, the Company will be released from all such
obligations.
A-7
85
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Cinemark USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
A-8
86
Assignment Form
To assign this Note, fill in the form below and have your
signature guaranteed: (I) or (we) assign and transfer this
Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date: Your Name:
------------------------- --------------------------------
(Print your name exactly as it appears on
the face of this Note)
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee(*):
-------------------
--------------------------
(*) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-9
87
Option of Holder to Elect Purchase
If you elect to have this Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.14
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount (in
minimum denominations of $1000 or integral multiples thereof) you elect to have
purchased: $___________
Date: Your Name:
-------------- --------------------------------------
(Print your name exactly as it appears
on the face of this Note)
Your Signature:
---------------------------------
(Sign exactly as your name appears on
the Note)
Social Security or Tax Identification No.:
------
Signature Guarantee(*):
---------------------------
----------------------
(*) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-10
88
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE(3)
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
Principal Amount of this
Global Note Signature of
Amount of decrease in Amount of increase in following such authorized officer of
Principal Amount of Principal Amount of decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------------------------------------------------------------------------------------------------------------
---------------------------
(3.) This schedule should be included only if the Note is issued in global form.
A-11
89
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 8-1/2% Series A Senior Subordinated Notes due 2008 of Cinemark USA, Inc.
This Certificate relates to $_____ principal amount of Notes held
in(*) global or (*) definitive form by ________________ (the "Transferor").
The Transferor(*):
[ ] has requested the Trustee by written order to deliver, in exchange
for its beneficial interest in the Global Note held by the Depositary, a Note or
Notes in definitive, registered form or a beneficial interest in the Series B
Global Note issued pursuant to the Exchange Offer, in both cases in the
authorized denominations in an aggregate principal amount equal to its
beneficial interest in such Global Note (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that it is familiar with the Indenture relating
to the above captioned Notes, and the transfer of this Note does not require
registration under the Securities Act of 1933, as amended (the "Securities
Act") because such Note*:
[ ] is being acquired for the Transferor's own account, without
transfer;
[ ] is being transferred pursuant to an effective registration
statement;
[ ] is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), in reliance on
such Rule 144A;
[ ] is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;**
[ ] is being transferred pursuant to Rule 144 under the Securities
Act; or
----------------------------
(*) Check applicable box.
(**) If this box is checked, this certificate must be accompanied by an
opinion of counsel to the effect that such transfer is in compliance
with the Securities Act.
B-1
90
[ ] is being transferred pursuant to another exemption from the
registration requirements of the Securities Act (explain:
__________________________________________________________)(***)
Date: Your Name:
-------------- ---------------------------------------
(Print your name exactly as it appears on
the face of the Note)
Your Signature:
----------------------------------
(Sign exactly as your name appears on the
Note)
Social Security or Tax Identification No.:
----------
Signature Guarantee(****):
--------------------------
----------------------
(***) If this box is checked, this certificate must be accompanied by a
opinion of counsel to the effect that such transfer is in compliance
with the Securities Act.
(****) Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
B-2
91
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM RESTRICTED GLOBAL NOTE
TO REGULATION S GLOBAL NOTE
(Transfers pursuant to Section 2.6(e) of Indenture)
U.S. Trust Company of Texas, N.A.
as Trustee
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Re: Cinemark USA, Inc.
8-1/2% Senior Subordinated Notes Due 2008 (the "Notes")
Reference is hereby made to the Indenture dated as of January 14, 1998,
(as such may be amended, supplemented or restated from time to time, (the
"Indenture") between Cinemark USA, Inc. and U.S Trust Company of Texas, N.A., as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
This letter relates to U.S.$_________ (being U.S.$1,000 and any
integral multiple thereof) principal amount of Notes beneficially held through
interests in the Restricted Global Note (CUSIP No. _________) with DTC in the
name of ________(the "Transferor") account no. ______. The Transferor hereby
requests that on [INSERT DATE] such beneficial interest in the Restricted
Global Note be transferred or exchanged for an interest in the Regulation S
Global Note (CUSIP (CINS) No. _________) in the same principal denomination and
transfer to (account no. ________). If this is a partial transfer, a minimum
amount of U.S.$1,000 and any integral multiple thereof of the Restricted Global
Note will remain outstanding.
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and accordingly the Transferor further certifies that:
(A) (1) the offer of the Notes was not made to a Person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any Person acting
on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither
the Transferor nor any Person acting on our behalf knows that the
transaction was prearranged with a buyer in the United States,
C-1
92
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
OR
(B) Such transfer is being made in accordance with Rule 144 under
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
Dated:
--------------
[Name of Transferor]
By:
-----------------------------
Name:
Title:
Telephone No.:
Signatures must be ▇▇▇▇▇▇-
▇▇▇▇ by an "eligible guar-
antor institution" meeting
the requirements of the
Transfer Agent, which
requirements include mem-
bership or participation
in STAMP or such other
"signature guarantee pro-
gram" as may be determined
by the Transfer Agent in
addition to, or in substi-
tution for, STAMP, all in
accordance with the Secu-
rities Exchange Act of
1934, as amended.
------------------------------
Signature Guarantee
Please print name and address (including zip code number)
cc: The Company
93
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL NOTE
TO RESTRICTED GLOBAL NOTE
PRIOR TO EXPIRATION OF RESTRICTED PERIOD
(Transfers pursuant to Section 2.6(f) of Indenture)
U.S. Trust Company of Texas, N.A.
as Trustee
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Re: Cinemark USA, Inc.
8-1/2% Senior Subordinated Notes Due 2008 (the "Notes")
Reference is hereby made to the Indenture dated as of January 14,
1998, (as such may be amended, supplemented or restated from time to time, (the
"Indenture") between Cinemark USA, Inc. and U.S. Trust Company of Texas, N.A.,
as Trustee. Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
This letter relates to U.S.$__________ (being U.S.$1,000 and integral
multiples thereof) principal amount of Notes beneficially held through
interests in the Regulation S Global Note (CUSIP (CINS) No. __________) with
[Euroclear] [Cedel Bank] (Common Code No. ______) through DTC in the name of
_______________ (the "Transferor") [Euroclear] [Cedel Bank] account no. ______.
The Transferor hereby requests that on [INSERT DATE] such beneficial interest
in the Regulation S Global Note be transferred or exchanged for an interest in
the Restricted Global Note (CUSIP No. _________) in the same principal
denomination and transferred to ______________ (DTC account no. ________). If
this is a partial transfer, a minimum of U.S.$1,000 and any integral multiple
thereof of the Regulation S Global Note will remain outstanding.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), to a transferee that the Transferor reasonably
believes is purchasing the Notes for its own account or an account with respect
to which the transferee exercises sole investment discretion and the transferee
and any such account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable securities laws of any state of the
United States or any other jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated:
----------------
D-1
94
[Name of Transferor]
By:
---------------------------
Name:
Title:
Telephone No.:
Signatures must be ▇▇▇▇▇▇-
▇▇▇▇ by an "eligible guar-
antor institution" meeting
the requirements of the
Transfer Agent, which
requirements include mem-
bership or participation
in STAMP or such other
"signature guarantee pro-
gram" as may be determined
by the Transfer Agent in
addition to, or in substi-
tution for, STAMP, all in
accordance with the Secu-
rities Exchange Act of
1934, as amended.
------------------------------
Signature Guarantee
Please print name and address (including zip code number)
cc: The Company
D-2
95
IN WITNESS WHEREOF, the parties hereto have executed this Indenture
this January 14, 1998.
CINEMARK USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-69