EXHIBIT 4.1
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EXECUTION COPY
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VIALOG CORPORATION
as Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
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INDENTURE
Dated as of November 12, 1997
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$75,000,000
12 3/4% Series A Senior Notes
due November 15, 2001
12 3/4% Series B Senior Notes
due November 15, 2001
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a) (1)..........................................................7.10
(a) (2)..........................................................7.10
(a) (3)..........................................................N.A.
(a) (4)..........................................................N.A.
(a) (5)..........................................................7.08;.7.10
(b)..............................................................7.08; 7.10; .11.02
(c)..............................................................N.A.
311 (a)..............................................................7.11
(b)..............................................................7.11
(c)..............................................................N.A.
312 (a)................................................................2.05
(b)..............................................................11.03
(c)..............................................................11.03
313 (a)..............................................................7.06
(b) (1)..........................................................N.A.
(b) (2)..........................................................7.06
(c)..............................................................7.06 .11.02
(d)..............................................................7.06
314 (a)..............................................................4.08; 4.10; 11.02
(b)..............................................................N.A.
(c) (1)..........................................................7.02; 11.04
(c) (2)..........................................................7.02; 11.04
(c) (3)..........................................................N.A.
(d)..............................................................N.A.
(e)..............................................................11.05
(f)..............................................................N.A.
315 (a)..............................................................7.01(b)
(b)..............................................................7.05; 11.02
(c)..............................................................7.01(a)
(d)..............................................................6.50; 7.01(c)
(e)..............................................................6.11
316 (a) (last sentence)..............................................2.09
(a) (1) (A)......................................................6.05
(a) (1) (B)......................................................6.04
(a) (2)..........................................................N.A.
(b)..............................................................6.07
(c)..............................................................9.04
317 (a) (1)..........................................................6.08
(a) (2)..........................................................6.09
(b)..............................................................2.04
318 (a)..............................................................11.01
(b)..............................................................11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................... 1
SECTION 1.02. Incorporation by Reference of TIA............. 21
SECTION 1.03. Rules of Construction......................... 21
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating............................... 22
SECTION 2.02. Execution and Authentication.................. 23
SECTION 2.03. Registrar and Paying Agent.................... 23
SECTION 2.04. Paying Agent to Hold Assets in Trust.......... 24
SECTION 2.05. Security holder Lists......................... 24
SECTION 2.06. Transfer and Exchange......................... 24
SECTION 2.07. Replacement Securities........................ 25
SECTION 2.08. Outstanding Securities........................ 25
SECTION 2.09. Treasury Securities........................... 26
SECTION 2.10. Temporary Securities.......................... 26
SECTION 2.11. Cancellation.................................. 26
SECTION 2.12. CUSIP Number.................................. 27
SECTION 2.13. Deposit of Moneys............................. 27
SECTION 2.14. Book-Entry Provisions for Global Securities... 27
SECTION 2.15. Registration of Transfers and Exchanges....... 28
SECTION 2.16. Designation................................... 32
SECTION 2.17. Defaulted Interest............................ 33
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee............................ 33
SECTION 3.02. Selection of Securities to Be Redeemed........ 33
SECTION 3.03. Notice of Redemption.......................... 34
SECTION 3.04. Effect of Notice of Redemption................ 34
SECTION 3.05. Deposit of Redemption Price................... 35
SECTION 3.06. Securities Redeemed in Part................... 35
SECTION 3.07 Optional Redemption........................... 35
SECTION 3.08. Procedures for Purchase Offers................ 36
ARTICLE FOUR
COVENANTS
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SECTION 4.01. Payment of Securities............................ 38
SECTION 4.02. Maintenance of Office or Agency.................. 38
SECTION 4.03. Limitation on Restricted Payments................ 38
SECTION 4.04. Limitation on Indebtedness....................... 40
SECTION 4.05. Corporate Existence.............................. 41
SECTION 4.06. Payment of Taxes and Other Claims................ 41
SECTION 4.07. Maintenance of Properties and Insurance.......... 41
SECTION 4.08. Compliance Certificate: Notice of Default; Tax
Information..................................... 42
SECTION 4.09. Compliance with Laws............................. 43
SECTION 4.10. SEC Reports...................................... 43
SECTION 4.11. Waiver of Stay, Extension or Usury Laws.......... 43
SECTION 4.12. Limitation on Transactions with Affiliates....... 44
SECTION 4.13. Limitation on Conduct of Business................ 44
SECTION 4.14. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries............ 44
SECTION 4.15. Limitation on Liens.............................. 45
SECTION 4.16. Offer to Repurchase Upon Change of Control....... 46
SECTION 4.17. Asset Sales...................................... 46
SECTION 4.18. Limitation on Issuances and Sales of Capital Stock
of Subsidiaries................................. 48
SECTION 4.19. Limitation on Status as Investment Company....... 48
SECTION 4.20. Sale and Leaseback Transactions.................. 49
SECTION 4.21. Additional Subsidiary Guarantees................. 49
SECTION 4.22. Limitation on Dividends.......................... 49
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sale of Assets....... 50
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default................................ 51
SECTION 6.02. Acceleration..................................... 53
SECTION 6.03. Other Remedies................................... 53
SECTION 6.04. Waiver of Past Defaults.......................... 54
SECTION 6.05. Control by Majority.............................. 54
SECTION 6.06. Limitation on Suits.............................. 54
SECTION 6.07. Rights of Holders to Receive Payment............. 55
SECTION 6.08. Collection Suit by Trustee....................... 55
SECTION 6.09. Trustee May File Proofs of Claim................. 55
SECTION 6.10. Priorities....................................... 56
SECTION 6.11. Undertaking for Costs............................ 56
SECTION 6.12. Restoration of Rights and Remedies............... 56
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee................................ 57
SECTION 7.02. Rights of Trustee................................. 58
SECTION 7.03. Individual Rights of Trustee..................... 59
SECTION 7.04. Trustee's Disclaimer............................. 59
SECTION 7.05. Notice of Default................................ 59
SECTION 7.06. Reports by Trustee to Holders.................... 60
SECTION 7.07. Compensation and Indemnity....................... 60
SECTION 7.08. Replacement of Trustee........................... 61
SECTION 7.09. Successor Trustee by Merger, Etc................. 62
SECTION 7.10. Eligibility; Disqualification.................... 62
SECTION 7.11. Preferential Collection of Claims Against Company 62
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance......... 62
SECTION 8.02. Satisfaction and Discharge....................... 65
SECTION 8.03. Survival of Certain Obligations.................. 66
SECTION 8.04. Acknowledgment of Discharge by Trustee........... 67
SECTION 8.05. Application of Trust Assets...................... 67
SECTION 8.06. Repayment to the Company or Subsidiary Guarantors:
Unclaimed Money................................. 67
SECTION 8.07. Reinstatement.................................... 68
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders....................... 68
SECTION 9.02. With Consent of Holders.......................... 69
SECTION 9.03. Compliance with TIA.............................. 70
SECTION 9.04. Revocation and Effect of Consents................ 70
SECTION 9.05. Notation on or Exchange of Securities............ 71
SECTION 9.06. Trustee to Sign Amendments, Etc.................. 71
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee......................... 71
SECTION 10.02. Severability.................................... 72
SECTION 10.03. Limitation of Subsidiary Guarantor's Liability.. 72
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms............................... 73
SECTION 10.05. Contribution.................................... 74
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SECTION 10.06. Waiver of Subrogation........................... 74
SECTION 10.07. Execution of Subsidiary Guarantee............... 75
SECTION 10.08. Waiver of Stay, Extension or Usury Laws......... 75
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.................................... 76
SECTION 11.02. Notices......................................... 76
SECTION 11.03. Communications by Holders with Other Holders.... 77
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent...................................... 78
SECTION 11.05. Statements Required in Certificate or Opinion... 78
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar....... 78
SECTION 11.07. Legal Holidays.................................. 79
SECTION 11.08. Governing Law................................... 79
SECTION 11.09. No Adverse Interpretation of Other Agreements... 79
SECTION 11.10. No Recourse Against Others...................... 79
SECTION 11.11. Successors...................................... 79
SECTION 11.12. Counterparts.................................... 79
SECTION 11.13. Severability.................................... 80
SECTION 11.14. Entire Agreement................................ 80
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THIS INDENTURE dated as of November 12, 1997, is among VIALOG
CORPORATION, a Massachusetts corporation (the "Company"), TELEPHONE BUSINESS
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MEETINGS, INC. d/b/a ACCESS CONFERENCE CALL SERVICE, a Delaware corporation,
CONFERENCE SOURCE INTERNATIONAL, INC., a Georgia corporation, CALL POINTS, INC.,
a Delaware corporation, KENDALL SQUARE TELECONFERENCING, INC. d/b/a THE
CONFERENCE CENTER, a Massachusetts corporation, AMERICAN CONFERENCING COMPANY,
INC. d/b/a AMERICO, a Delaware corporation, and COMMUNICATION DEVELOPMENT
CORPORATION, a Connecticut corporation (collectively, the "Subsidiary
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Guarantors"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
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company, as Trustee (the "Trustee").
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Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Series A
Securities and the Series B Securities (as such terms are hereinafter defined),
without preference of one such series over the other:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Acquired Indebtedness" of any Person means Indebtedness of another
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Person and any of its Subsidiaries existing at the time such other Person
becomes a Subsidiary of such Person or at the time it merges or consolidates
with such Person or any of such Person's Subsidiaries or is assumed by such
Person or any Subsidiary of such Person in connection with the acquisition of
assets from such other Person and in each case not Incurred by such Person or
any Subsidiary of such Person or such other Person in connection with, or in
anticipation or contemplation of, such other Person becoming a Subsidiary of
such Person or such acquisition, merger or consolidation, and which Indebtedness
is without recourse to the Company or any of its Subsidiaries or to any of their
respective properties or assets other than the Person or such Person's
Subsidiaries or the assets to which such Indebtedness related prior to the time
such Person becomes a Subsidiary of the Company or the time of such acquisition,
merger or consolidation.
"Adjusted Net Assets" has the meaning provided in Section 10.05.
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"Affiliate" means, when used with reference to any Person, any other
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Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct or cause the direction of management or policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
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correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.12.
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"Agent" means any Registrar, Paying Agent or co-Registrar.
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"Asset Acquisition" means (i) an Investment by the Company or any
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Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be merged with or into the
Company or any Subsidiary of the Company or (ii) the acquisition by the Company
or any Subsidiary of the Company of assets of any Person comprising an existing
business (whether existing as a separate entity, subsidiary, division or unit of
such Person).
"Asset Proceeds Deficiency" has the meaning set forth in Section 4.17.
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"Asset Proceeds Offer" has the meaning set forth in Section 4.17.
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"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
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other disposition to any Person other than the Company or any of its
Subsidiaries (including, without limitation, by means of a sale and leaseback
transaction or a merger or consolidation) (collectively, for purposes of this
definition, a "transfer"), directly or indirectly, in one or a series of related
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transactions, of (a) any Capital Stock of any Subsidiary held by the Company or
any other Subsidiary, (b) all or substantially all of the properties and assets
of any division or line of business of the Company or any of its Subsidiaries,
(c) any other properties or assets of the Company or any of its Subsidiaries
other than transfers of cash, Cash Equivalents, accounts receivable, or
properties or assets in the ordinary course of business; provided that the
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transfer of all or substantially all of the properties or assets of the Company
and its Subsidiaries, taken as a whole, will be governed by the provisions of
Section 5.01 and/or Section 4.16 and not by the provisions of Section 4.17. For
the purposes of this definition, the term "Asset Sale" also shall not include
any of the following: (i) sales of damaged, worn-out or obsolete equipment or
assets that, in the Company's reasonable judgment, are either (A) no longer used
or (B) no longer useful in the business of the Company or its Subsidiaries; (ii)
any lease of any property entered into the ordinary course of business and with
respect to which the Company or any Subsidiary is the lessor, except any such
lease that provides for the acquisition of such property by the lessee during or
at the end of the term thereof for an amount that is less than the Fair Market
Value thereof at the time the right to acquire such property is granted; (iii) a
Restricted Payment or Permitted Investment permitted under Section 4.03; and
(iv) any transfers that, but for this clause (iv), would be Asset Sales, if (A)
the Company elects to designate such transfers as not constituting Asset Sales
and (B) after giving effect to such transfers, the aggregate Fair Market Value
of the properties or assets transferred in such transaction or any such series
of related transactions so designated by the Company does not exceed $1,000,000.
"Attributable Indebtedness" in respect of a sale and leaseback
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transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at
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the option of the lessor, be extended). As used in the preceding sentence, the
"net rental payments" under any lease for any such period shall mean the sum of
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rental and other payments required to be paid with respect to such period by the
lessee thereunder, excluding any amounts required to be paid by such lessee on
account of maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges. In the case of any lease that is terminable by the lessee
upon payment of penalty, such net rental payment shall also include the amount
of such penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
"Available Proceeds Amount" has the meaning set forth in Section 4.17.
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"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
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state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
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Directors of such Person or any committee of the Board of Directors of such
Person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a copy of a
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resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business" means the business of providing audio, video and
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teleconferencing services.
"Business Day" means any day other than a Saturday, Sunday or any
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other day on which banking institutions in The City of New York or Boston,
Massachusetts are required or authorized by law or other governmental action to
be closed.
"Capital Stock" means (i) with respect to any Person that is a
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corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity or profit participation interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
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obligations of such Person to pay rent or other amounts under a lease that are
required to be classified and accounted for as capital lease obligations under
GAAP and, for purposes of this definition, the amount of such obligations at any
date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by,
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or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one
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year from the date of acquisition thereof; (ii) marketable direct obligations
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition, having one
of the two highest ratings obtainable from either Standard & Poor's Ratings
Group ("S&P") or Moody's Investors Service, Inc. ("Moody's'"); (iii) commercial
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paper maturing no more than 270 days from the date of creation thereof and, at
the time of acquisition, having a rating of at least A-1 from S&P or at least P-
1 from Moody's; (iv) certificates of deposit or bankers' acceptances maturing
within 180 days from the date of acquisition thereof issued by any commercial
bank including, without limitation, the Trustee, organized under the laws of the
United States of America or any state thereof or the District of Columbia or any
U.S. branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; (vi) deposits available for
withdrawal on demand with any commercial bank not meeting the qualifications
specified in clause (iv) above, provided that all such deposits do not exceed
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$5,000,000 in the aggregate at any one time; (vii) demand and time deposits and
certificates of deposit with any commercial bank organized in the United States
not meeting the qualifications specified in clause (iv) above, provided that
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such deposits and certificates support bond, letter of credit and other similar
types of obligations incurred in the ordinary course of business; and (viii)
investments in money market or other mutual funds including, without limitation,
an SSgA mutual fund, substantially all of whose assets comprise securities of
the types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following: (i)
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the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any person (as such term is used in Section 13(d)(3) of the Exchange
Act) other than to the Company or a Subsidiary Guarantor; (ii) the Company
consolidates with or merges into another Person or any Person consolidates with,
or merges into, the Company, in any such event pursuant to a transaction in
which the outstanding Voting Stock of the Company is changed into or exchanged
for cash, securities or other property, other than any such transaction where
(a) the outstanding Voting Stock of the Company is changed into or exchanged for
Voting Stock of the surviving or resulting Person that is Qualified Capital
Stock and (b) the holders of the Voting Stock of the Company immediately prior
to such transaction own, directly or indirectly, not less than a majority of the
Voting Stock of the surviving or resulting Person immediately after such
transaction; (iii) the adoption of a plan relating to the liquidation or
dissolution of the Company not involving a merger or consolidation or a sale or
other disposition of assets described in clause (i) above; (iv) the consummation
of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any person (as defined above), excluding Permitted
Holders, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50%
of the total voting power of the Voting Stock of the Company; provided that the
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sale of Voting Stock of the Company to a Person or Persons acting as
underwriters in connection with a firm commitment underwriting
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shall not constitute a Change of Control; or (v) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors (other than by action of the Permitted Holders). For
purposes of this definition, any transfer of an equity interest of an entity
that was formed for the purpose of acquiring Voting Stock of the Company will be
deemed to be a transfer of such portion of such Voting Stock as corresponds to
the portion of the equity of such entity that has been so transferred.
"Change of Control Offer" has the meaning provided in Section 4.16.
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"Change of Control Payment" has the meaning provided in Section 4.16.
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"Change of Control Payment Date" has the meaning provided in Section
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4.16.
"Common Stock" of any Person means any and all shares, interests or
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other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
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successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any
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period, the sum (without duplication) of (i) Consolidated Net Income plus (ii)
to the extent that any of the following shall have been taken into account in
determining Consolidated Net Income, (A) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such period (other than
income taxes attributable to extraordinary, unusual or nonrecurring gains or
losses or taxes attributable to sales or dispositions of assets outside the
ordinary course of business), Consolidated Interest Expense, amortization
expense and depreciation expense, and (B) other non-cash items (other than non-
cash interest) reducing Consolidated Net Income, other than any non-cash item
which requires the accrual of or a reserve for cash charges for any future
period and other than any non-cash charge constituting an extraordinary item of
loss, less other non-cash items increasing Consolidated Net Income, all as
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determined on a consolidated basis for such Person and its Subsidiaries in
conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
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Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters for which financial information is available (the "Four Quarter
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Period") ending on or prior to the date of the transaction or event giving rise
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to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
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Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
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period of such calculation to (i) the Incurrence or repayment of any
Indebtedness of such Person or any of its Subsidiaries (and the application of
the proceeds thereof) giving rise to the need to make such calculation and any
Incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the Incurrence or repayment of Indebtedness in the
ordinary course of
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business for working capital purposes pursuant to working capital facilities, at
any time subsequent to the first day of the Four Quarter Period and on or prior
to the Transaction Date, as if such Incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period, and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including any
Person who becomes a Subsidiary as a result of any such Asset Acquisition)
Incurring, assuming or otherwise being liable for Acquired Indebtedness) at any
time subsequent to the first day of the Four Quarter Period and on or prior to
the Transaction Date, as if such Asset Sale or Asset Acquisition (including the
Incurrence, assumption or liability for any such Indebtedness or Acquired
Indebtedness and also including any Consolidated EBITDA, based upon the four
fiscal quarters of such Person for which financial information is available
immediately preceding such Asset Acquisition, associated with such Asset
Acquisition) occurred on the first day of the Four Quarter Period; provided that
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the Consolidated EBITDA of any Person acquired shall be included only to the
extent includable pursuant to the definition of "Consolidated Net Income." If
such Person or any of its Subsidiaries directly or indirectly guarantees
Indebtedness of a third person, the preceding sentence shall give effect to the
Incurrence of such guaranteed Indebtedness as if such Person or any Subsidiary
of such Person had directly Incurred or otherwise assumed such guaranteed
Indebtedness. Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio," (1) interest on Indebtedness
determined on a fluctuating basis as of the Transaction Date (including
Indebtedness actually Incurred on the Transaction Date) and which will continue
to be so determined thereafter shall be deemed to have accrued at a fixed rate
per annum equal to the rate of interest on such Indebtedness in effect on the
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Transaction Date; and (2) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
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such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
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period, the sum, without duplication, of (i) Consolidated Interest Expense and
(ii) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends paid in Common Stock) paid,
accrued or scheduled to be paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated Federal, state and local tax rate
of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for
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any period, the aggregate of the interest expense (without deduction of interest
income) of such Person and its Subsidiaries (excluding amortization of deferred
financing fees) for such period, on a consolidated basis, as determined in
accordance with GAAP, and including (a) all amortization of original issue
discount (other than any original issue discount on Indebtedness attributable to
proceeds of the sale of warrants issued in connection with the Incurrence of
such Indebtedness); (b) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued
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by such Person and its Subsidiaries during such period; (c) net cash costs under
all Interest Swap Obligations (including amortization of fees); (d) all
capitalized interest; and (e) the interest portion of any deferred payment
obligations for such period.
"Consolidated Net Income" means, with respect to any Person, for any
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period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided that there shall be excluded therefrom (a) after-tax gains from Asset
- --------
Sales or abandonments or reserves relating thereto, (b) after-tax items
classified as extraordinary or nonrecurring gains, (c) the net income or loss of
any Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Subsidiary of the referent Person or is merged or consolidated
with the referent Person or any Subsidiary of the referent Person, (d) the net
income (but not loss) of any Subsidiary of the referent Person to the extent
that the declaration of dividends or similar distributions by that Subsidiary of
that income is restricted by a contract, operation of law or otherwise, (e) the
net income of any Person, other than a Subsidiary of the referent Person, except
to the extent of cash dividends or distributions paid to the referent Person or
to a wholly-owned Subsidiary of the referent person by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date, (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated
----------------------
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person for
-----------------------------
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Subsidiaries for such period, on a consolidated basis, as
determined in accordance with GAAP.
"Continuing Director" means, as of any date of determination, any
-------------------
member of the Board of Directors of the Company who: (i) was a member of such
Board of Directors on the Issue Date; or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
"Covenant Defeasance" has the meaning set forth in Section 8.01(c).
-------------------
"Custodian" means any receiver, trustee, assignee, liquidator,
---------
sequestrator or similar official under any Bankruptcy Law.
-7-
"Default" means an event or condition the occurrence of which is, or
-------
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depository" means, with respect to the Securities issued in the form
----------
of one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Disqualified Capital Stock" means any Capital Stock which, by its
--------------------------
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Securities.
"Events of Default" has the meaning set forth in Section 6.01.
-----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
or any successor statute or statutes thereto.
"Existing Indebtedness" means up to $1.5 million in aggregate
---------------------
principal amount of Indebtedness of the Company and its Subsidiaries in
existence on the Issue Date, until such amounts are repaid.
"Fair Market Value" or "Fair Value" means, with respect to any asset
----------------- ----------
or property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between an informed and willing seller and an informed
and willing and able buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair Market Value shall be determined
by the Board of Directors of the Company acting reasonably and in good faith and
shall be evidenced by a Board Resolution delivered to the Trustee; provided,
--------
however, that if the aggregate non-cash consideration to be received by the
- -------
Company or any of its Subsidiaries from any Asset Sale could be reasonably
likely to exceed $1.0 million, the Fair Market Value shall be determined by an
Independent Financial Advisor.
"Family Member" means, when used with reference to any natural Person,
-------------
such Person's spouse, siblings, parents, children, or other lineal descendants
(whether by adoption or consanguinity), and shall mean a trust, the primary
beneficiary of which is the Person's spouse, siblings, parents, children, or
other lineal descendants (whether by adoption or consanguinity).
"Financial Advisor" means an accounting, appraisal or investment
-----------------
banking firm of nationally recognized standing that is, in the reasonable and
good faith judgment of the Board of Directors of the Company, qualified to
perform the task for which such firm has been engaged.
"Four Quarter Period" has the meaning set forth in the definition of
-------------------
"Consolidated Fixed Charge Coverage Ratio" above.
-8-
"Funding Guarantor" has the meaning provided in Section 10.05.
-----------------
"GAAP" means generally accepted accounting principles 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 in effect as of the Issue Date.
"Global Security" means a Security evidencing all or a part of the
---------------
Securities issued to the Depository in accordance with Section 2.01 and bearing
the legend prescribed in Exhibit B.
"Holder" or "Security holder" means a Person in whose name a Security
------ ---------------
is registered on the Registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation of
-----
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "Incurrence," "Incurred," "Incurrable" and "Incurring" shall have meanings
---------- -------- ---------- ---------
correlative to the foregoing); provided, however, that (A) any Indebtedness
-------- -------
assumed in connection with an acquisition of assets and any Indebtedness of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) of the Company or at the time such
Person is merged or consolidated with the Company or any subsidiary of the
Company shall be deemed to be Incurred at the time of the acquisition of such
assets or by such Subsidiary at the time it becomes, or is merged or
consolidated with, a Subsidiary of the Company or by the Company at the time of
such merger or consolidation, as the case may be, and (B) any amendment,
modification or waiver of any document pursuant to which Indebtedness was
previously Incurred shall not be deemed to be an Incurrence of Indebtedness
unless such amendment, modification or waiver increases the principal or premium
thereof or interest rate thereon (including by way of original issue discount).
A guarantee by the Company or a Subsidiary Guarantor of Indebtedness Incurred by
the Company or a Subsidiary Guarantor, as applicable, shall not be a separate
incurrence of Indebtedness.
"Indebtedness" means with respect to any Person, without duplication,
------------
(i) all Obligations of such Person for borrowed money, (ii) all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all Obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and accrued liabilities arising
in the ordinary course of business that are not overdue by 90 days or more or
are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted), (v) all Obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance
-9-
or similar credit transaction, (vi) all Indebtedness of others (including all
dividends of other Persons for the payment of which is) guaranteed, directly or
indirectly, by such Person or that is otherwise its legal liability or which
such Person has agreed to purchase or repurchase or in respect of which such
Person has agreed contingently to supply or advance funds but excluding
endorsements of negotiable instruments and documents in the ordinary course of
business, (vii) net liabilities of such Person under Interest Swap Obligations,
(viii) all Indebtedness of others 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 or property (including, without limitation, leasehold
interests and any other tangible or intangible property) of such Person, whether
or not such Indebtedness is assumed by such Person or is not otherwise such
Person's legal liability; provided that if the Obligations so secured have not
--------
been assumed by such Person or are otherwise not such Person's legal liability,
the amount of such Indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such Indebtedness secured by such Lien or
the Fair Market Value of the assets or property securing such Lien, and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends if any. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date; provided that the amount outstanding at any time of
--------
any non-interest bearing Indebtedness or other Indebtedness issued with original
issue discount is the full amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such
time as determined in conformity with GAAP, but such Indebtedness shall only be
deemed to be Incurred as of the date of original issuance thereof.
"Indenture" means this Indenture, as amended or supplemented from time
---------
to time in accordance with the terms hereof
"Independent" when used with respect to any specified Person means
-----------
such a Person who (a) is in fact independent, (b) does not have any direct
financial interest or any material indirect financial interest in the Company or
any of its Subsidiaries, or in any Affiliate of the Company or any of its
Subsidiaries and (c) is not an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions for the
Company or any of its Subsidiaries. Whenever it is provided in this Indenture
that any Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by the Company and approved by the
Trustee in the exercise of reasonable care, and such opinion or certificate
shall state that the signer has read this definition and that the signer is
Independent within the meaning thereof.
"Initial Purchaser" means Jefferies & Company, Inc.
-----------------
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
-10-
"Interest Payment Date" means the stated maturity of an installment of
---------------------
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person under
-------------------------
any interest rate protection agreement, interest rate future, interest rate
option, interest rate swap, interest rate cap or other interest rate hedge or
arrangement.
"Investment" by any Person means any direct or indirect (i) loan,
----------
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property (valued at the Fair Market Value thereof as
of the date of transfer) to others or payments for property or services for the
account or use of others, or otherwise) (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business); (ii) purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by any other
Person; (iii) guarantee or assumption of any Indebtedness or any other
obligation of any other Person (except for an assumption of Indebtedness for
which the assuming Person receives consideration at the time of such assumption
in the form of property or assets with a Fair Market Value at least equal to the
principal amount of the Indebtedness assumed, extensions of trade credit or
other advances to customers on commercially reasonable terms in accordance with
normal trade practices or otherwise in the ordinary course of business, workers'
compensation, utility, lease and similar deposits and prepaid expenses made in
the ordinary course of business, and endorsements of negotiable instruments and
documents in the ordinary course of business); and (iv) all other items that
would be classified as investments on a balance sheet of such Person prepared in
accordance with GAAP. The amount of any Investment shall not be adjusted for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment. If the Company or any Subsidiary of the Company
sells or otherwise disposes of any Common Stock of any direct or indirect
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, greater than
50% of the outstanding Common Stock of such Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Common Stock of such Subsidiary not sold
or disposed of.
"Issue Date" means the date on which the Series A Securities were
----------
first issued hereunder.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
----
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction other than to reflect ownership by a
third party of property leased to the referent Person or any of its Subsidiaries
under a lease that is not in the nature of a conditional sale or title retention
agreement).
-11-
"Maturity Date" mean November 15, 2001.
-------------
"Net Cash Proceeds" means, with respect to any Asset Sale, the
-----------------
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Subsidiaries from such Asset
Sale net of (a) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, brokerage, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable ((1)
including, without limitation, income taxes reasonably estimated to be actually
payable as a result of any disposition of property within two years of the date
of disposition and (2) after taking into account any reduction in tax liability
due to available tax credits or deductions and any tax sharing arrangements) and
(c) appropriate amounts to be provided by the Company or any Subsidiary, as the
case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Subsidiary,
as the case may be, after such Asset Sale, 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 Sale.
"Net Equity Proceeds" means (a) in the case of any sale by the Company
-------------------
of Qualified Capital Stock of the Company, the aggregate net cash proceeds
received by the Company, after payment of expenses, commissions and the like
(including, without limitation, brokerage, legal, accounting and investment
banking fees and commissions) incurred in connection therewith, and (b) in the
case of any exchange, exercise, conversion or surrender of any outstanding
Indebtedness of the Company or any Subsidiary issued after the Issue Date for or
into shares of Qualified Capital Stock of the Company, the amount of such
Indebtedness (or, if such Indebtedness was issued at an amount less than the
stated principal amount thereof, the accrued amount thereof as determined in
accordance with GAAP) as reflected in the consolidated financial statements of
the Company prepared in accordance with GAAP as of the most recent date next
preceding the date of such exchange, exercise, conversion or surrender (plus any
additional amount required to be paid by the holder of such Indebtedness to the
Company or to any wholly-owned Subsidiary of the Company upon such exchange,
exercise, conversion or surrender and less any and all payments made to the
holders of such Indebtedness, and all other expenses incurred by the Company in
connection therewith), in each case (a) and (b) to the extent consummated after
the Issue Date.
"Obligations" means all obligations for principal, premium, interest,
-----------
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offered Price" has the meaning set forth in Section 4.17.
-------------
"Officer" means, with respect to any Person, the Chairman of the
-------
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer or Assistant
Treasurer, the Controller, the Secretary or Assistant Secretary of such Person.
-12-
"Officers' Certificate" means a certificate signed by two officers of
---------------------
the Company (one of whom must be a principal executive officer, principal
financial officer or principal accounting officer).
"Opinion of Counsel" means a written opinion from legal counsel which
------------------
and who are reasonably acceptable to the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of the Company that
-----------------------
is pari passu in right of payment to the Securities.
----------
"Pari Passu Offer" has the meaning set forth in Section 4.17.
----------------
"Paying Agent" shall have the meaning set forth in Section 2.03.
------------
"Payment Amount" has the meaning set forth in Section 4.17.
--------------
"Payment Default" has the meaning set forth in Section 6.01.
---------------
"Payment Restriction" has the meaning set forth in Section 4.14.
-------------------
"Permitted Holders" means the following Persons: J. Michael Powell,
-----------------
Reynolds E. Moulton, Glenn D. Bolduc, William P. Pucci, David L. Lougee, John J.
Dion, Joanna M. Jacobson, David L. Lipsky and Patti R. Bisbano, and any of their
respective Affiliates and Family Members, each of the foregoing individually
being a "Permitted Holder".
"Permitted Indebtedness" means, without duplication, each of the
----------------------
following:
(i) Indebtedness under the Securities;
(ii) Indebtedness under any Existing Indebtedness or under the
Senior Credit Facility;
(iii) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Subsidiary thereof in
the ordinary course of business, including guarantees or obligations of the
Company or any Subsidiary thereof with respect to letters of credit
supporting such bid, performance or surety obligations (in each case other
than for an obligation for money borrowed);
(iv) Permitted Refinancing Indebtedness;
(v) The Subsidiary Guarantees of the Securities;
(vi) Interest Swap Obligations of the Company; provided,
--------
however, that such Interest Swap Obligations are entered into to protect
-------
the Company and its Subsidiaries from fluctuations in interest rates on
Indebtedness Incurred in accordance with this Indenture to the extent the
notional principal amount of such Interest Swap
-13-
Obligation does not exceed the principal amount of the Indebtedness to
which such Interest Swap Obligation relates;
(vii) Indebtedness of a direct or indirect Subsidiary of the
Company to the Company or to a direct or indirect Subsidiary of the Company
for so long as such Indebtedness is held by the Company or a direct or
indirect Subsidiary of the Company in each case subject to no Lien held by
a Person other than the Company or a direct or indirect Subsidiary of the
Company; provided that if as of any date any Person other than the Company
--------
or a direct or indirect Subsidiary of the Company owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date
shall be deemed the date of the Incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness;
(viii) Indebtedness of the Company to a direct or indirect
Subsidiary of the Company for so long as such Indebtedness is held by a
direct or indirect Subsidiary of the Company in each case subject to no
Lien; provided, that (a) any Indebtedness of the Company to any direct or
--------
indirect Subsidiary of the Company is unsecured and subordinated, pursuant
to a written agreement, to the Company's Obligations under this Indenture
and the Securities, and (b) if as of any date any Person other than a
direct or indirect Subsidiary of the Company owns or holds any such
Indebtedness or any Person holds a Lien in respect of such Indebtedness,
such date shall be deemed the date of the Incurrence of Indebtedness not
constituting Permitted Indebtedness by the issuer of such Indebtedness; and
(ix) additional Indebtedness not to exceed an aggregate
principal amount of $1.0 million at any one time outstanding and any
guarantee thereof.
"Permitted Investments" means (a) Investments in cash and Cash
---------------------
Equivalents; (b) Investments by the Company or by any Subsidiary of the Company
in any Person that is or will become immediately after such Investment a direct
or indirect Subsidiary of the Company; (c) any Investments in the Company by any
Subsidiary of the Company; provided that any Indebtedness evidencing such
--------
Investment is unsecured; (d) Investments made by the Company or by its
Subsidiaries as a result of an Asset Sale made in compliance with Section 4.17;
(e) Interest Swap Obligations to the extent the same constitute Permitted
Indebtedness; (f) Investments in an amount not to exceed $2.5 million at any one
time outstanding; (g) Investments held by any Person on the date such Person
becomes a Subsidiary to the extent such Investments are not incurred in
anticipation of or in connection with such acquisition; and (h) Investments in
stock, obligations or securities received in settlement of debts owing to the
Company or any Subsidiary as a result of bankruptcy or insolvency proceedings or
upon the foreclosure, perfection or enforcement of any Lien in favor of the
Company or any Subsidiary, in each case as to debt owing to the Company or any
Subsidiary that arose in the ordinary course of business of the Company or any
such Subsidiary, provided that any stocks, obligations or securities received in
--------
settlement of debts that arose in the ordinary course of business (and received
other than as a result of bankruptcy or insolvency proceedings or upon
foreclosure, perfection or enforcement of any Lien) that are, within 30 days of
receipt,
-14-
converted into cash or Cash Equivalents shall be treated as having been cash or
Cash Equivalents at the time received.
"Permitted Liens" means, without duplication, each of the following:
---------------
(i) Liens existing as of the date of this Indenture;
(ii) Liens securing the Securities, the Subsidiary Guarantees
or any Indebtedness under the Senior Credit Facility;
(iii) Liens in favor of the Company or as otherwise permitted by
clause (vii) of the definition of "Permitted Indebtedness";
(iv) Liens for taxes, assessments and governmental charges or
claims either (i) not delinquent or (ii) contested in good faith by
appropriate proceedings and as to which the Company or its Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to GAAP;
(v) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not
delinquent for more than 30 days or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(vi) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the payment or performance
of tenders, statutory or regulatory obligations, surety and appeal bonds,
bids, government contracts and leases, performance and return of money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(vii) judgment Liens not giving rise to an Event of Default so
long as any appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceeding may be initiated
shall have not expired;
(viii) any interest or title of a lessor under any Capital Lease
Obligation or operating lease;
(ix) Liens securing Purchase Money Indebtedness incurred in
compliance with Section 4.04; provided, however, that (i) the related
-------- -------
Purchase Money Indebtedness shall not be secured by any property or assets
of the Company or any Subsidiary other than the property or assets so
acquired and any proceeds therefrom and (ii) the Lien securing any such
Indebtedness shall be created within 90 days of such acquisition;
-15-
(x) Liens securing obligations under or in respect of Interest
Swap Obligations;
(xi) Liens upon specific items of inventory or other goods of
any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods;
(xii) Liens securing reimbursement obligations with respect to
commercial letters of credit that encumber documents and other property or
assets relating to such letters of credit and products and proceeds
thereof;
(xiii) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements of
the Company or any of its Subsidiaries, including rights of offset and set-
off;
(xiv) Liens on property existing at the time of acquisition
thereof by the Company or any Subsidiary of the Company and Liens on
property or assets of a Subsidiary existing at the time it became a
Subsidiary, provided that such Liens were in existence prior to the
--------
contemplation of the acquisition and do not extend to any assets other than
the property of such Person or the acquired property (and the proceeds
thereof), as applicable; and
(xv) Liens securing Permitted Refinancing Indebtedness which is
incurred to refinance any Indebtedness which has been secured by a Lien
permitted under the Indenture and which has been incurred in accordance
with the provisions of the Indenture; provided, however, that such Liens
(a) are no less favorable to the Holders and not more favorable to the
lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being refinanced, and (b) do not extend to or cover any
property or assets of the Company or any of its Subsidiaries not securing
the Indebtedness so refinanced.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
----------------------------------
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Subsidiaries incurred pursuant to
clause (i), (ii) or (v) of the definition of "Permitted Indebtedness"; provided
--------
that: (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so exchanged, refinanced,
renewed, replaced, defeased or refunded (plus the amount of related prepayment
penalties, fees and reasonable expenses incurred in connection therewith); (ii)
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
exchanged, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being exchanged, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Securities or the Subsidiary
Guarantees, such Permitted Refinancing
-16-
Indebtedness is subordinated in right of payment to, the Securities or the
Subsidiary Guarantees, as the case may be, on terms at least as favorable to the
Holders of Securities as those contained in the documentation governing the
Indebtedness being exchanged, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by the Company or by the
Subsidiary that is the obligor on the Indebtedness being exchanged, refinanced,
renewed, replaced, defeased or refunded.
"Person" means an individual, trustee, corporation, partnership,
------
limited liability company, joint stock company, trust, unincorporated
organization, joint venture, union, business association, firm, governmental
agency or political subdivision thereof or other legal entity.
"Physical Securities" has the meaning set forth in Section 2.01.
-------------------
"Preferred Stock" of any Person means any Capital Stock of such Person
---------------
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Principal" of any Indebtedness (including the Securities) means the
---------
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Exchange Notes" has the meaning provided in the Registration
----------------------
Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
------------------------
Series A Securities in the form set forth on Exhibit A-1.
"Public Equity Offering" means an underwritten offer and sale of
----------------------
Qualified Capital Stock of the Company pursuant to a registration statement that
has been declared effective by the SEC pursuant to the Securities Act (other
than a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Company).
"Purchase Agreement" means the purchase agreement dated as of November
------------------
12, 1997 by and among the Company, the Subsidiary Guarantors named therein and
the Initial Purchaser.
"Purchase Date" means the Change of Control Payment Date or purchase
-------------
date with respect to an Asset Proceeds Offer, as applicable.
"Purchase Money Indebtedness" means Indebtedness or that portion of
---------------------------
Indebtedness of the Company or any Subsidiary incurred in connection with the
acquisition by the Company or such Subsidiary, subsequent to the Issue Date, of
any property or assets.
"Purchase Offer" means either a Change of Control Offer or an Asset
--------------
Proceeds Offer, as applicable.
-17-
"Qualified Capital Stock" means any Capital Stock that is not
-----------------------
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
----------------------------- ---
Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Securities.
-----------
"Redemption Date," when used with respect to any Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to the terms of this
Indenture and Paragraph 5 in the forms of Security annexed hereto as Exhibit A-1
and A-2.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the price fixed for such redemption pursuant to the terms of
this Indenture and Paragraph 5 in the forms of Security annexed hereto as
Exhibit A-1 and A-2.
"Refinance" means, in respect of any security or Indebtedness, to
---------
refinance, renew, refund, repay, prepay, redeem, defease or retire, or to issue
a security or Indebtedness in exchange or replacement for, such security or
Indebtedness in whole or in part. "Refinanced" and "Refinancing" shall have
---------- -----------
correlative meanings.
"Registered Exchange Offer" means the offer to exchange the Series B
-------------------------
Securities for all of the outstanding Series A Securities in accordance with the
Registration Rights Agreement.
"Registrar" has the meaning set forth in Section 2.03.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement by and among the Company, the Subsidiary Guarantors named therein and
the Initial Purchaser, relating to the Securities and dated as of the Issue
Date, as the same may be amended, supplemented or modified from time to time in
accordance with the terms thereof.
"Resale Restriction Termination Date" has the meaning provided in
-----------------------------------
Section 2.15.
"Responsible Officer," when used with respect to the Trustee, means
-------------------
any officer within the Corporate Trust Group (or any successor group) of the
Trustee, including without limitation any Vice President, any Assistant Vice
President, any Assistant Secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers, who shall, in any case, be responsible for the
administration of this document or have familiarity with it, and also means,
with respect to particular corporate trust matters, any other officer to whom
such matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Payment" has the meaning provided in Section 4.03.
------------------
-18-
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
-------------------
under the Securities Act and includes, without limitation, any Private Exchange
Note (as defined in the Registration Rights Agreement); provided that the
--------
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Security is a Restricted Security.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as
---------
such Rule may be amended from time to time, or any similar role (other than Rule
144) or regulation hereinafter adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
---
"Securities" means the Series A Securities and Series B Securities as
----------
amended or supplemented from time to time in accordance with the terms hereof
that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the SEC promulgated thereunder.
"Senior Credit Facility" means, with respect to the Company, a senior
----------------------
bank financing credit facility to be provided to the Company by Coast Business
Credit (or an affiliate thereof), pursuant to the proposal letter dated October
29, 1997, consisting of a revolving credit, term loan and capital expenditure
facility in the aggregate principal amount of $15.0 million.
"Series A Securities" means the 12 3/4% Series A Senior Notes due
-------------------
November 15, 2001, being issued and sold pursuant to the Purchase Agreement and
this Indenture.
"Series B Securities" means the 12 3/4% Series B Senior Notes due
-------------------
November 15, 2001 (the terms of which are identical to the Series A Securities
except that the offer and sale of the Series B Securities shall be registered
under the Securities Act, and such securities shall not contain the restrictive
legend on the face of the form of the Series A Securities), to be issued in
exchange for the Series A Securities pursuant to the Registered Exchange Offer
and this Indenture.
"Specified Affiliate Transactions" means certain transactions among
--------------------------------
the Company and Subsidiaries and certain Affiliates which were entered into
prior to the Issue Date as set forth in Schedule I to this Indenture.
"Subordinated Indebtedness" means any Indebtedness of the Company or a
-------------------------
Subsidiary Guarantor which, by its terms, is expressly subordinated in right of
payment to the Securities or the Subsidiary Guarantees, as the case may be.
"Subsidiary," with respect to any Person, means (i) any corporation of
----------
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or
-19-
indirectly, by such Person or (ii) any other Person of which at least a majority
of the voting interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"Subsidiary Guarantee" means any guarantee of the Securities by a
--------------------
Subsidiary Guarantor in accordance with the provisions described under Article
Ten.
"Subsidiary Guarantor" means (i) each of Telephone Business Meetings,
--------------------
Inc. d/b/a/ Access Conference Call Service, Conference Source International,
Inc., Call Points, Inc., Kendall Square Teleconferencing, Inc. d/b/a/ The
Conference Center, American Conferencing Company, Inc. d/b/a Americo, and
Communication Development Corporation, each of which is a wholly-owned
subsidiary of the Company, and (ii) each of the Company's Subsidiaries that in
the future executes a supplemental indenture in which such Subsidiary agrees to
be bound by the terms of this Indenture as a Subsidiary Guarantor; provided that
--------
any Person constituting a Subsidiary Guarantor as described above shall cease to
constitute a Guarantor when its respective Subsidiary Guarantee is released in
accordance with the terms of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
---
77bbbb), as amended, as in effect on the date of the execution of this Indenture
until such time as this Indenture is qualified under the TIA, and thereafter as
in effect on the date on which this Indenture is qualified under the TIA, except
as otherwise provided in Section 9.03.
"Trust Officer" means any officer within the corporate trust
-------------
administration department (or any successor group of the Trustee), including any
vice president, assistant vice president, assistant secretary or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at that time shall be such
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"U.S. Government Obligations" has the meaning provided in Section
---------------------------
8.01.
"U.S. Legal Tender" means such coin or currency of the United States
-----------------
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" means, with respect to any Person, securities of any
------------
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors of such Person.
-20-
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly-owned Subsidiary" of any Person means any Subsidiary of such
-----------------------
Person of which all the outstanding voting securities which normally have the
right to vote in the election of directors, other than director's qualifying
shares, are owned by such Person or any wholly-owned Subsidiary of such Person.
SECTION 1.02. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
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:
"Commission" means the SEC;
----------
"indenture securities" means the Securities;
--------------------
"indenture security holder" means a Holder or a Security holder;
-------------------------
"indenture to be qualified" means this Indenture;
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee; and
----------------- ---------------------
"obligor" on the indenture securities means the Company, any
-------
Subsidiary Guarantor or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
-21-
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
---------------
The Series A Securities and Series B Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A-1
and A-2, respectively. The Securities may have notations, legends or
endorsements (including notations relating to the Guarantee) required by law,
stock exchange rule or usage. The Company and the Trustee shall approve the
form of the Securities and any notation, legend or endorsement (including
notations relating to the Subsidiary Guarantee) on them. Each Security shall be
dated the date of its authentication.
The terms and provisions contained in the Securities and the
Subsidiary Guarantee shall constitute, and are hereby expressly made, a part of
this Indenture. The Series A Securities and the Series B Securities shall be
considered collectively to be a single class for all purposes of this Indenture,
including, without limitation, waivers, amendments, redemptions and offers to
purchase.
Series A Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in Exhibit A-1 ("Global
------
Securities"), deposited with the Trustee, as custodian for the Depository, and
- ----------
shall bear the legend set forth on Exhibit B. Series B Securities (other than
any constituting Private Exchange Notes) shall be issued initially in the form
of one or more permanent Global Securities in registered form, substantially in
the form set forth in Exhibit A-2, deposited with the Trustee, as custodian for
the Depositary, and shall bear the legend set forth on Exhibit B. The aggregate
principal amount of any Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Series A Securities offered and sold in reliance on any other
exemption from registration under the Securities Act other than as described in
the preceding paragraph and any Series B Securities constituting Private
Exchange Notes shall be issued in the form of certificated Securities in
registered form in substantially the form set forth in Exhibit A-1 and Exhibit
A-2, respectively (the "Physical Securities").
-------------------
-22-
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers, or an Officer and a Clerk or Assistant Clerk, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual or
facsimile signature. The Company's seal shall also be affixed to or imprinted
or reproduced on the Securities.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless. Each
Subsidiary Guarantor shall execute the Subsidiary Guarantee in the manner set
forth in Section 10.07.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. For the purpose of determining the date of issuance of any
Security, an authentication by the applicable unit agent of a unit of which such
Security is a part shall be deemed to be the authentication by the Trustee of
the applicable Security.
The Trustee shall authenticate (i) Series A Securities for original
issue in the aggregate principal amount of $75,000,000 and (ii) Series B
Securities from time to time for issue only in exchange for a like principal
amount of Series A Securities, in each case upon receipt of a written order of
the Company in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Securities to be authenticated, the series and type
of Securities and the date on which the Securities are to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$75,000,000, except as provided in Section 2.07. Upon receipt of a written order
of the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities 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 and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in The City of New
York, where (a) Securities may be presented or surrendered for registration of
transfer or for exchange ("Registrar"), and (b) Securities may be presented or
---------
surrendered for payment
-23-
("Paying Agent"). The Registrar shall keep a register of the Securities and of
------------
their transfer and exchange. The Company, upon notice to the Trustee, may have
one or more co-Registrar and one or more additional Paying Agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional
------------
Paying Agent. The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed. Except as set forth in Section 2.13, neither the Company nor any
Affiliate of the Company may act as Paying Agent.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by such Paying Agent for the payment of
principal of, or interest on, the Securities, and shall notify the Trustee of
any Default by the Company in making any such payment. The Company at any time
may require a Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent shall have no further liability for such assets. If the Company or
any of its Affiliates 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. During the continuance of any Event of Default, the Trustee shall
serve as the sole Paying Agent of the Securities.
SECTION 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before each Record Date and at such other times as the Trustee may
request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
---------------------
Subject to the provisions of Sections 2.14 and 2.15, when Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of the same series and other authorized
denominations, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
- -------- -------
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar or co-
-24-
Registrar's written request. No service charge shall be made 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 other
governmental charge payable upon exchanges or transfers pursuant to Section
2.10, 3.06, 4.16, or 9.05). The Registrar or co-Registrar shall not be required
to register the transfer of or exchange of any Security (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Securities and ending at the close of business on the day of such
mailing, (ii) selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Security being redeemed in part,
(iii) during a period beginning 15 days before the mailing of a notice of an
offer to repurchase pursuant to Section 4.16 or 4.17, or (iv) between a Record
Date and the next succeeding Interest Payment Date.
Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that, subject to Section 2.15(d), transfers of beneficial
interests in such Global Security may be effected only through a book-entry
system maintained by the Depository (or its agent), and that ownership of a
beneficial interest in the Global Security shall be required to be reflected in
a book entry.
SECTION 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee, upon the Company's written
request, shall authenticate a replacement Security of the same series if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee and any Agent from any loss which any of them may suffer if a Security
is replaced. The Company and the Trustee may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security, including reasonable
fees and expenses of counsel.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those canceled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because the
Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
---- ----
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
-25-
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that date, then on and
after that date such Securities cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its Affiliates shall be disregarded, except that, for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities that the Trustee actually
knows are so owned shall be disregarded. Securities so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledge's right so to act with respect to the
Securities and that the pledgee is not the Company, a Subsidiary Guarantor or
any other obligor upon the Securities or any Affiliate of any of them.
The Trustee may require an Officers' Certificate listing Securities
owned by the Company, a Subsidiary of the Company or an Affiliate of the
Company.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall, upon the Company's written request, authenticate
temporary Securities upon receipt of a written order of the Company in the form
of an Officers' Certificate. The Officers' Certificate shall specify the amount
of temporary Securities to be authenticated and the date on which the temporary
Securities are to be authenticated. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate, upon receipt of a
written order of the Company pursuant to Section 2.02, definitive Securities in
exchange for temporary Securities.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation. If the Company or any Subsidiary Guarantor shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
-26-
SECTION 2.12. CUSIP Number.
------------
The Company in issuing each series of the Securities will use a
"CUSIP" number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
--------
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company shall promptly notify the Trustee of any such CUSIP
number used by the Company in connection with the Securities and any change in
such CUSIP number.
SECTION 2.13. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. Boston time on each Interest Payment Date and
Maturity Date, the Company shall have deposited with the Paying Agent U.S. Legal
Tender sufficient to make cash payments due on such Interest Payment Date or
Maturity Date, as the case may be, and so as to permit the Paying Agent to remit
payment in immediately available funds to the Holders on such Interest Payment
Date or Maturity Date, as the case may be. Alternatively, the Company may make
payments on the Securities by wire transfer, in same day funds, or, in the case
of Physical Securities, by check delivered to the Holders thereof at their
registered addresses. To the extent the Company makes such payments directly to
the Holders, the Company shall simultaneously notify the Trustee thereof in
writing.
SECTION 2.14. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit B.
Members of, or participants in, the Depository ("Agent Members") shall
-------------
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security 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 by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Global Securities may be transferred as a whole, and interests of
beneficial owners in Global Securities may be transferred or exchanged for
Physical Securities, only in accordance with the rules and procedures of the
Depository and the provisions of Section 2.15. In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in Global Securities if (i) the Depository notifies the Company that
it is unwilling or unable to continue as Depository for any Global Security and
a
-27-
successor depositary is not appointed by the Company within 90 days of such
notice, or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue Physical
Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global Securities
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) or (c) of this Section shall, except as otherwise provided by Section 2.15,
bear the legend regarding transfer restrictions applicable to the Physical
Securities set forth in Exhibit A-1.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 2.15. Registration of Transfers and Exchanges.
---------------------------------------
(a) Transfer and Exchange of Physical Securities. When Physical
--------------------------------------------
Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number of
Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Section 2.15 for such transactions are met;
provided, however, that the Physical Securities presented or surrendered for
- -------- -------
registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(II) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act and are
presented for transfer or exchange prior to (x) the date which is
two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company
was the owner of such Security, or any predecessor thereto and
(y) such later date, if any, as may be required by
-28-
any subsequent change in applicable law (the "Resale Restriction
------------------
Termination Date"), such Physical Securities shall be
----------------
accompanied, in the sole discretion of the Company, by the
following additional information and documents, as applicable:
(A) if such Physical Security is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder
to that effect (in substantially the form of Exhibit C
hereto); or
(B) if such Physical Security is being transferred to a
qualified institutional buyer (as defined in Rule 144A
promulgated under the Securities Act) in accordance with
Rule 144A promulgated under the Securities Act or pursuant
to an exemption from registration in accordance with Rule
144 or Regulation S promulgated under the Securities Act, a
certification to that effect (in substantially the form of
Exhibit C hereto); or
(C) if such Physical Security is being transferred to an
institutional "accredited investor" within the meaning of
subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
promulgated under the Securities Act, delivery of a
Transferee Letter of Representation in the form of Exhibit D
hereto and an opinion of counsel and/or other information
satisfactory to the Company to the effect that such transfer
is in compliance with the Securities Act; or
(D) if such Physical Security is being transferred in reliance
on another exemption from the registration requirements of
the Securities Act, a certification to that effect (in
substantially the form of Exhibit C hereto) and an opinion
of counsel reasonably acceptable to the Company to the
effect that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical Security for a Beneficial
----------------------------------------------------------------
Interest in a Global Security. A Physical Security may not be exchanged for a
- -----------------------------
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar of a Physical
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Registrar, together with:
(A) certification, substantially in the form of Exhibit C
hereto, that such Security is being transferred to a
qualified institutional buyer (as defined in Rule 144A
promulgated under the Securities Act) in accordance with
Rule 144A promulgated under the Securities Act; and
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(B) written instructions directing the Registrar to make, or to
direct the Depositary to make, an endorsement on the Global
Security to reflect an increase in the aggregate amount of
the Securities represented by the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depositary to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the number of Securities
represented by the Global Security to be increased accordingly. If no Global
Security is then outstanding, the Company shall issue and the Registrar shall
authenticate a new Global Security in the appropriate amount.
(c) Transfer and Exchange of Global Securities. The transfer and
------------------------------------------
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor.
(d) Exchange of a Beneficial Interest in a Global Security for a
------------------------------------------------------------
Physical Security.
- -----------------
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a
Physical Security. Upon receipt by the Registrar 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 Security and upon receipt by the Registrar of a
written order or such other form of instructions as is
customary for the Depositary or the Person designated by the
Depositary as having such a beneficial interest containing
registration instructions and, in the case of any such
transfer or exchange prior to the Resale Restriction
Termination Date, the following additional information and
documents:
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification from such Person to
that effect (in substantially the form of Exhibit C
hereto); or
(B) if such beneficial interest is being transferred to a
qualified institutional buyer (as defined in Rule 144A
promulgated under the Securities Act) in accordance
with Rule 144A promulgated under the Securities Act or
pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S promulgated
under the Securities Act, a certification to that
effect from the transferee or transferor (in
substantially the form of Exhibit C hereto); or
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(C) if such beneficial interest is being transferred to an
institutional "accredited investor" within the meaning
of subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of
Rule 501 promulgated under the Securities Act, delivery
of a Transferee Letter of Representation in the form of
Exhibit D hereto and an opinion of counsel and/or other
information satisfactory to the Company to the effect
that such transfer is in compliance with the Securities
Act; or
(D) 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 (in substantially the form of Exhibit C
hereto) and an opinion of counsel reasonably acceptable
to the Company to the effect that such transfer is in
compliance with the Securities Act,
the Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depositary
and the Registrar, the aggregate amount of the Global
Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate, the Registrar
will authenticate and deliver to the transferee a Physical
Security.
(ii) Physical Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section
2.15(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 Registrar in writing. The
Registrar shall deliver such Physical Securities to the
Persons in whose names such Physical Securities are so
registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
----------------------------------------------------------
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.15), a Global Security
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.
(f) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities
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that bear the Private Placement Legend unless, and the Trustee is hereby
authorized to deliver Securities without the Private Placement Legend only if,
(i) the circumstances contemplated by paragraph (a)(ii)(II) of this Section 2.15
exist, (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act.
(g) Authentication of Physical Securities in Absence of Depositary.
--------------------------------------------------------------
If at any time:
(i) the Depositary for the Securities notifies the Company that
the Depositary is unwilling or unable to continue as
Depositary for the Global Security and a successor
Depositary for the Global Security is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Registrar
in writing that it elects to cause the issuance of Physical
Securities under this Indenture,
then the Company will execute, and the Registrar, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Physical Securities,
will authenticate and deliver Physical Securities, in an aggregate principal
amount equal to the aggregate principal amount of Securities represented by the
Global Security, in exchange for such Global Security.
(h) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of, and each beneficial interest in, such a
Security acknowledges the restrictions on transfer of such Security set forth in
this Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.16. Designation.
-----------
The Indebtedness evidenced by the Securities is hereby irrevocably
designated as "senior indebtedness" or such other term denoting seniority for
the purposes of any future Indebtedness of the Company which the Company makes
subordinate to any senior indebtedness or such other term denoting seniority.
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SECTION 2.17. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, 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 Securities and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Security and the date of the proposed payment. The Trustee may 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 payment
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 interest to be paid.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Section 3.07
hereof, it shall notify the Trustee in writing of the Redemption Date and the
principal amount of Securities to be redeemed. The Company shall give notice of
redemption to the Paying Agent and Trustee at least 30 days but not more than 60
days before the Redemption Date (unless a shorter notice shall be agreed to by
the Trustee in writing), together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities to Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed at any time,
selection of such Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Securities are listed or, if such Securities are not then
listed on a national securities exchange, on a pro rata basis, by lot or by such
--- ----
method as the Trustee shall deem fair and appropriate.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $ 1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
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SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption Date,
the Trustee, at the Company's request made at least 45 days before the
Redemption Date (unless a shorter notice shall be agreed to by the Trustee in
writing) shall mail a notice of redemption by first class mail, postage prepaid,
to each Holder whose Securities are to be redeemed at the addresses of such
Holders as they appear in the register maintained by the Register pursuant to
Section 2.03. The Trustee shall give the notice of redemption in the Company's
name and at the Company's expense. Each notice for redemption shall identify
the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price upon surrender to the
Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, and upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption; and
(8) the subparagraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to
the Trustee or Paying Agent, such Securities called for redemption shall be paid
at the Redemption Price (which shall include accrued interest thereon to the
Redemption Date), but installments of interest, the maturity of
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which is on or prior to the Redemption Date, shall be payable to Holders of
record at the close of business on the relevant Record Dates. Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before 11:00 a.m. (Boston time) on the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued interest, if any, of all Securities to be
redeemed on that date. The Paying Agent shall promptly return to the Company
any U.S. Legal Tender so deposited which is not required for that purpose upon
the written request of the Company, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities are
presented for payment.
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee, upon the Company's written request, shall
authenticate for the Holder a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.
SECTION 3.07 Optional Redemption.
--------------------
(a) The Securities shall be redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after November 15, 1999
at the following Redemption Prices (expressed as percentages of the principal
amount) if redeemed during the twelve-month period commencing on November 15 of
the year set forth below (but not including the date of maturity), plus, in each
case, accrued and unpaid interest thereon to the Redemption Date.
Year Percentage
1999............................................. 110%
2000............................................. 105%
(b) Notwithstanding the foregoing, at any time on or prior to
November 15, 1999, the Company may redeem, in whole or in part, from time to
time, up to an aggregate of 35% of the original principal amount of Securities
at a Redemption Price of 112.75% of the principal amount thereof, plus accrued
and unpaid interest thereon to the Redemption Date, with the net proceeds of any
Public Equity Offering; provided that at least 65% in aggregate of the original
--------
principal amount of Securities remain outstanding immediately after the
occurrence
-35-
of such redemption; and, provided, further, that such redemption occurs within
-------- -------
90 days of the date of the closing of such Public Equity Offering.
In addition, prior to November 15, 1999, the Notes will be redeemable
at the Company's option, in whole or in part, at any time or from time to time,
upon not less than 30 nor more than 60 days' prior notice mailed by first-class
mail to each Holder's registered address, at a redemption price (expressed as a
percentage of principal amount) equal to the sum of the principal amount of such
Notes plus the applicable Make-Whole Premium thereon at the time of redemption
(subject to the right of Holders of record on the relevant record date to
receive interest due to the relevant interest payment date).
The following definitions are used to determine the applicable Make-
Whole Premium:
"Applicable Make-Whole Premium" means, with respect to a Note at the
redemption date, the greater of (i) 1.0% of the principal amount of such Note
and (ii) the excess of (A) the present value of such time of (1) the redemption
price of such Note at November 15, 1999 plus (2) all required interest payments
(excluding accrued but unpaid interest) due on such Note through November 1,
1999, computed using a discount rate equal to the Treasury Rate plus 100 basis
points, over (B) the principal amount of such Note at such time.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two business days prior to the date fixed
for repayment (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the then
remaining average life to Stated Maturity) of the Notes; provided, however, that
if the average life to Stated Maturity of the Notes is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. Procedures for Purchase Offers.
------------------------------
Notice of a Purchase Offer pursuant to this Section 3.08 shall be
mailed or caused to be mailed, by first class mail, by the Company not less than
30 nor more than 60 days before the Purchase Date to all Holders at their last
registered addresses, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Securities
pursuant to the Purchase Offer and shall state the following terms:
(1) the section of the Indenture pursuant to which the Purchase Offer
is being made and that all Securities properly tendered will be
accepted for
-36-
payment; provided, however, that if the aggregate principal
-------- -------
amount of Securities tendered in connection with an Asset
Proceeds Offer plus accrued interest at the expiration of such
offer exceeds the Payment Amount, the Company shall select the
Securities to be purchased on a pro rata basis (with such
--- ----
adjustments as may be deemed appropriate by the Company so that
only Securities in denominations of $1,000 or multiples thereof
shall be purchased);
(2) the purchase price (including the amount of accrued interest) and
the Purchase Date and that the Purchase Offer will remain open
for at least 20 Business Days and until the close of business on
the Business Day prior to the Purchase Date;
(3) that any Security not properly tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Purchase Offer
shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to a
Purchase Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on
the third Business Day prior to the Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount
of the Securities the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
such Security purchased; and
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; provided that
--------
each Security purchased and each new Security issued shall be in
an original principal amount of $1,000 or integral multiples
thereof.
On or before 11:00 a.m. (Boston time) on the Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Purchase Offer which are to be purchased in accordance with item
(1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the purchase price plus accrued interest, if any, of all Securities to be
purchased and (iii) deliver to the Trustee Securities so accepted together with
an Officers' Certificate stating the Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail or otherwise
deliver to the Holders
-37-
of Securities so accepted payment in an amount equal to the purchase price plus
accrued interest, if any. For purposes of any Purchase Offer, the Trustee shall
act as the Paying Agent.
Any amounts remaining after the purchase of Securities pursuant to a
Purchase Offer shall be returned by the Trustee to the Company.
The Company shall 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 purchase
of Securities pursuant to a Purchase Offer. To the extent the provisions of any
such rule conflict with the provisions of this Indenture relating to a Purchase
Offer, the Company shall comply with the provisions of such rule and be deemed
not to have breached its obligations relating to such Purchase Offer by virtue
thereof.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
in Boston, Massachusetts in the manner provided in the Securities and this
Indenture. An installment of principal of or interest on the Securities shall
be considered paid on the date it is due if the Trustee or Paying Agent holds on
that date U.S. Legal Tender designated for and sufficient to pay the
installment.
Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in The City of New York, the office or
agency required under Section 2.03. 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 and surrenders may be made or served at the address
of the Trustee set forth in Section 11.02. The Company hereby initially
designates the office of the Trustee, as its office or agency in The City of New
York.
SECTION 4.03. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, (a) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company, or any warrants,
rights or options to acquire shares of any class of such Capital Stock, other
than through the exchange therefor solely of Qualified Capital Stock
-38-
of the Company or warrants, rights or options to acquire Qualified Capital Stock
of the Company, (b) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Subordinated Indebtedness of the Company or (c) make any Investment (other
than Permitted Investments) in any Person (each of the foregoing prohibited
actions set forth in clauses (a), (b) and (c) being referred to as a "Restricted
----------
Payment"), if at the time of such proposed Restricted Payment or immediately
- -------
after giving effect thereto, (i) a Default or an Event of Default has occurred
and is continuing or would result therefrom, or (ii) the Company is not able to
Incur at least $ 1.00 of additional Indebtedness in accordance with paragraph
(b) of Section 4.04 (as if such Restricted Payment had been made as of the last
day of the Four Quarter Period), or (iii) the aggregate amount of Restricted
Payments (including such proposed Restricted Payment) made subsequent to the
Issue Date exceeds or would exceed the sum of: (v) 50% of the Consolidated Net
Income (or if Consolidated Net Income shall be a loss, minus 100% of such loss)
of the Company during the period (treating such period as a single accounting
period) from the beginning of the first fiscal quarter commencing after the
Issue Date to the end of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the time of such Restricted
Payment; (w) 100% of the aggregate Net Equity Proceeds received by the Company
from any Person from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company other than any Qualified Capital Stock
sold to a Subsidiary of the Company; (x) the aggregate net cash proceeds
received after the Issue Date by the Company (other than from any of its
Subsidiaries) upon the exercise of any options, warrants or rights to purchase
shares of Qualified Capital Stock of the Company; (y) the aggregate net cash
proceeds received after the Issue Date by the Company from the issuance or sale
(other than to any of its Subsidiaries) of debt securities or shares of
Disqualified Capital Stock that have been converted into or exchanged for
Qualified Capital Stock of the Company, together with the aggregate cash
received by the Company at the time of such conversion or exchange; and (z) an
amount equal to the net reduction in Investments, subsequent to the date of the
Indenture, in any Person resulting from payments of interest on debt, dividends,
repayments of loans or advances, return of capital, or other transfers of
property (but only to the extent such distributions are not included in the
calculation of Consolidated Net Income), in each case, to the Company or any
Subsidiary from any Person, not to exceed in the case of any Person, the amount
of Investments previously made by the Company or any Subsidiary in such Person
and which was treated as a Restricted Payment.
Notwithstanding the foregoing, these provisions do not prohibit: (1)
the acquisition of Capital Stock of the Company or warrants, rights or options
to acquire Capital Stock of the Company either (i) solely in exchange for shares
of Qualified Capital Stock of the Company or warrants, rights or options to
acquire Qualified Capital Stock of the Company, or (ii) through the application
of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company
or warrants, rights or options to acquire Qualified Capital Stock of the
Company; (2) the acquisition of any Subordinated Indebtedness of the Company
either (i) solely in exchange for shares of Qualified Capital Stock of the
Company, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the
-39-
Company) of (A) shares of Qualified Capital Stock of the Company or warrants,
rights or options to acquire Qualified Capital Stock of the Company or (B)
Permitted Refinancing Indebtedness; or (3) loans by the Company or any
Subsidiary to employees in the ordinary course of business up to an aggregate
principal amount of $250,000 at any one time outstanding; provided, however,
-------- -------
that in the case of clauses (1), (2) and (3) of this paragraph, no Default or
Event of Default shall have occurred and be continuing at the time of such
payment or as a result thereof. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date, amounts expended pursuant
to clauses (1)(ii), (2)(i) and (2)(ii)(A) of this paragraph shall, in each case,
be included in such calculation.
For purposes of the foregoing provisions, the amount of any Restricted
Payment (other than cash) shall be the Fair Market Value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) on the date of the Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment complies with this Indenture
and setting forth in reasonable detail the basis upon which the required
calculations were computed, which calculations may be based upon the Company's
latest available internal quarterly financial statements.
For purposes of this Section 4.03, if a particular Restricted Payment
involves a non-cash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal to the cash portion of
such Restricted Payment, if any, plus an amount equal to the Fair Market Value
of the non-cash portion of such Restricted Payment.
SECTION 4.04. Limitation on Indebtedness.
--------------------------
(a) The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, Incur any Indebtedness, including,
without limitation, any Acquired Indebtedness (other than Permitted
Indebtedness).
(b) Notwithstanding the foregoing limitations, the Company and its
Subsidiaries may Incur Indebtedness (including, without limitation, Acquired
Indebtedness), in each case, if (i) no Default or Event of Default shall have
occurred and be continuing on the date of the proposed Incurrence thereof or
would result as a consequence of such proposed Incurrence and (ii) immediately
after giving effect to such proposed Incurrence on a pro forma basis , the
--- -----
Consolidated Fixed Charge Coverage Ratio of the Company is at least equal to 2.0
to 1.0 if such proposed Incurrence is on or prior to December 31, 1998; and at
least equal to 3.0 to 1.0 if such proposed Incurrence is thereafter.
(c) Neither the Company nor any Subsidiary Guarantor will, directly
or indirectly, in any event Incur any Indebtedness which by its terms (or by the
terms of any agreement governing such Indebtedness) is subordinated to any other
Indebtedness of the Company or such Subsidiary Guarantor, as the case may be,
unless such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly
-40-
subordinate to the Securities or the Subsidiary Guarantee of such Subsidiary
Guarantor, as the case may be, to the same extent and in the same manner as such
Indebtedness is subordinated pursuant to subordination provisions that are most
favorable to the holders of any other Indebtedness of the Company or such
Subsidiary Guarantor, as the case may be.
(d) Notwithstanding the foregoing limitations, the Company and its
Subsidiaries may Incur no more than $15 million of secured Indebtedness.
SECTION 4.05. Corporate Existence.
-------------------
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other existence
of each of its Subsidiaries and the rights (charter and statutory) and material
franchises of the Company and each of its Subsidiaries; provided, however, that
-------- -------
the Company shall not be required to preserve any such right or franchise, or
the corporate, partnership or other existence of any Subsidiary, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and each of its
Subsidiaries, taken as a whole, and that the loss thereof is not, and will not
be, disadvantageous in any material respect to the Holders.
SECTION 4.06. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon it or any of its Subsidiaries or
upon the income, profits or property of it or any of its Subsidiaries and (ii)
all lawful claims for labor, materials and supplies which, in each case, if
unpaid, might by law become a Lien upon the property of it or any of its
Subsidiaries; provided, however, that the Company shall not be required to pay
-------- -------
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which appropriate provision has been
made.
SECTION 4.07. Maintenance of Properties and Insurance.
---------------------------------------
(a) The Company shall cause all material properties owned by or
leased by it or any of its Subsidiaries used or useful to the conduct of its
business or the business of any of its Subsidiaries to be improved or maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment may
be necessary, s o that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section 4.07 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors or of the board of directors of any
Subsidiary of the Company concerned, or of an officer (or other agent
-41-
employed by the Company or of any of its Subsidiaries) of the Company or any of
its Subsidiaries having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Subsidiary of the
Company, and if such discontinuance or disposal is not adverse in any material
respect to the Holders.
(b) The Company shall maintain, and shall cause its Subsidiaries to
maintain, insurance with responsible carriers against such risks and in such
amounts, and with such deductibles, retentions, self-insured amounts and co-
insurance provisions, as are customarily carried by similar businesses of
similar size.
SECTION 4.08. Compliance Certificate: Notice of Default; Tax Information.
-----------------------------------------------------------
(a) For so long as any of the Securities are outstanding or any
obligation of the Company or the Subsidiary Guarantors with respect thereto
remains unpaid finally and in full, the Company shall deliver to the Trustee,
within 120 days after the close of each fiscal year an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries 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 knowledge the Company during
such preceding fiscal year has kept, observed, performed and fulfilled each and
every such covenant and no Default or Event of Default occurred during such year
and at the date of such certificate there is no Default or Event of Default has
occurred and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe its status with particularity. The
Officers' Certificate shall also notify the Trustee should the Company elect to
change the manner in which it fixes its fiscal year end. Upon the
qualifications of this Indenture under the TIA, such Officer's Certificate shall
comply with TIA (S)314(a)(4).
(b) So long as (and to the extent) not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 4.10 shall be
accompanied by a written report of the Company's independent accountants (who
shall be a firm of established national reputation) that in conducting their
audit 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 5 of this Indenture insofar as they relate to accounting matters
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 deliver to the Trustee, promptly upon any
Officer becoming aware of any Default or Event of Default in the performance of
any covenant, agreement or condition contained in this Indenture, an Officers'
Certificate specifying the Default or Event of Default and describing its status
with particularity.
(d) The Company shall calculate and deliver to the Trustee all
original issue discount information to be reported by the Trustee to Holders as
required by law.
-42-
SECTION 4.09. Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
SECTION 4.10. SEC Reports.
-----------
(a) For so long as any of the Securities remain outstanding or any
obligation of the Company or the Subsidiary Guarantors with respect thereto
remains unpaid finally and in full, the Company will file with the SEC all
information, documents and reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act, whether or not the Company is subject
to such filing requirements so long as the SEC will accept such filings. The
Company will file with the Trustee within 15 days after it files them with the
SEC, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe), without exhibits, which the Company files with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification
of this Indenture under the TIA, the Company shall also comply with the
provisions of TIA (S) 314(a).
(b) Regardless of whether the Company is required to furnish such
reports to its stockholders pursuant to the Exchange Act, the Company shall
cause its consolidated financial statements, comparable to that which would have
been required to appear in annual or quarterly reports, to be delivered to the
Trustee and the Holders. The Company will also make such reports available to
prospective purchasers of the Securities, securities analysts and broker-dealers
upon their request.
(c) For so long as any of the Securities remain outstanding or any
obligation of the Company or the Subsidiary Guarantors with respect thereto
remains unpaid finally and in full, the Company will make available to any
prospective purchaser of the Securities or beneficial owner of the Securities in
connection with any sale thereof the information required by Rule 144A(d)(4)
under the Securities Act, until such time as the Company has consummated the
exchange offer the Series A Securities for Series B Securities which have been
registered under the Securities Act or until such time as the holders thereof
have disposed of such Securities pursuant to an effective registration statement
filed by the Company.
SECTION 4.11. Waiver of Stay, Extension or 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 or extension law or any usury law
or other law that would prohibit or
-43-
forgive the Company from paying all or any portion of the principal of and/or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 4.12. Limitation on Transactions with Affiliates.
------------------------------------------
(a) The Company shall not, and shall not cause or permit any of its
Subsidiaries to, conduct any business or enter into any transaction or series of
transactions with or for the benefit of any of their Affiliates (each an
"Affiliate Transaction") but excluding Specified Affiliate Transactions, except
- ----------------------
in good faith and on terms that are no less favorable to the Company or such
Subsidiary, as the case may be, than those that could have been obtained in a
comparable transaction on an arm's-length basis from a Person not an Affiliate
of the Company or such Subsidiary. All Affiliate Transactions (and each series
of related Affiliate Transactions which are similar or part of a common plan)
involving aggregate payments or other property with a Fair Market Value in
excess of $250,000 shall be approved by a majority of the independent members of
the Board of Directors of the Company, such approval to be evidenced by a Board
Resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions. If the Company or any
Subsidiary of the Company enters into an Affiliate Transaction (or a series of
related Affiliate Transactions related to a common plan) that involves an
aggregate Fair Market Value of more than $5,000,000, the Company or such
Subsidiary shall, prior to the consummation thereof, obtain a favorable opinion
as to the fairness of such transaction or series of related transactions to the
Company or the relevant Subsidiary, as the case may be, from a financial point
of view, from an Independent Financial Advisor and file the same with the
Trustee. Notwithstanding the foregoing, the restrictions set forth in this
Section 4.12 shall not apply to (i) transactions between the Company and any
Subsidiary Guarantor or between Subsidiary Guarantors, (ii) reasonable fees and
compensation paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary as determined in good
faith by the Company's Board of Directors or senior management, or (iii)
Restricted Payments not prohibited by Section 4.03.
SECTION 4.13. Limitation on Conduct of Business.
---------------------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, engage in the conduct of any business other than the Business on a basis
consistent with the conduct of such business as it is conducted on the Issue
Date.
SECTION 4.14. Limitation on Dividend and Other
Payment Restrictions Affecting Subsidiaries.
-------------------------------------------
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or permit or
suffer to exist or become effective
-44-
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its Capital Stock; (b) make loans
or advances or pay any Indebtedness or other obligation owed to the Company or
to any Subsidiary of the Company; or (c) transfer any of its property or assets
to the Company or to any Subsidiary of the Company (each such encumbrance or
restriction in clause (a), (b), or (c) a "Payment Restriction"), except for such
-------------------
encumbrances or restrictions existing under or by reason of: (1) applicable law;
(2) this Indenture; (3) customary non-assignment provisions of any lease or
license agreements or similar agreements entered into the ordinary course of
business of any Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness Incurred in accordance with paragraph (b) of Section 4.04; provided
--------
that such encumbrance or restriction is not, and will not be, applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, becoming a Subsidiary of the Company; (5)
agreements existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date; (6) any restriction or encumbrance
contained in contracts for the sale of assets to be consummated in accordance
with this Indenture solely in respect of the assets to be sold pursuant to such
contract; (7) any restrictions on the sale or other disposition or encumbrance
of any property securing Indebtedness as a result of a Permitted Lien on such
property; (8) any agreement relating to an acquisition of property, so long as
the encumbrances or restrictions in any such agreement relate solely to the
property so acquired and are not or were not created in anticipation of or in
connection with the acquisition thereof; (9) the Senior Credit Facility; or (10)
any encumbrance or restriction contained in Permitted Indebtedness or Permitted
Refinancing Indebtedness Incurred to Refinance the Indebtedness Incurred
pursuant to an agreement referred to in clauses (4), (5) or (9) above; provided,
--------
that the provisions relating to such encumbrance or restriction contained in any
such Permitted Refinancing Indebtedness are no less favorable to the Company or
to the Holders in any material respect in the reasonable and good faith judgment
of the Board of Directors of the Company than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such clause
(4), (5) or (9).
SECTION 4.15. Limitation on Liens.
-------------------
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume, affirm or suffer
to exist or become effective any Lien of any kind except for Permitted Liens,
upon any of their respective property or assets, whether now owned or acquired
after the Issue Date, or any income, profits or proceeds therefrom, or convey
any right to receive income therefrom. The foregoing covenant will not apply to
any Lien securing Acquired Indebtedness incurred in accordance with the
provisions of Section 4.04, provided that any such Lien extends only to the
--------
property or assets that were subject to such Lien prior to the related
acquisition by the Company or such Subsidiary and was not created, incurred or
assumed in contemplation of such transaction. The incurrence of additional
secured Indebtedness by the Company and its Subsidiaries is subject to further
limitations on the incurrence of Indebtedness as described under Section 4.04.
-45-
SECTION 4.16. Offer to Repurchase Upon Change of Control.
------------------------------------------
(a) Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to repurchase all or any
part (equal to $ 1,000 or an integral multiple thereof) of such Holder's
Securities on a Business Day (the "Change of Control Payment Date") not more
------------------------------
than 60 nor less than 30 days following such Change of Control, pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
-----------------------
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase (the "Change of Control Payment").
-------------------------
Within 30 days following any Change of Control, the Trustee, at the written
direction of the Company, shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and the
Company's offer to repurchase Securities pursuant to the procedures required by
Section 3.08 and 4.16 and described in such notice. The Company shall 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 Securities
as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment all Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Securities or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Securities so accepted, together with an Officers'
Certificate stating the aggregate principal amount of Securities or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail or
otherwise deliver to each Holder of Securities so tendered the Change of Control
Payment for such Securities, and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Security
equal in principal amount to any unpurchased portion of the Securities
surrendered, if any; provided that each such new Security shall be in a
--------
principal amount of $ 1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(c) The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Indenture are applicable.
(d) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.17. Asset Sales.
-----------
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, engage in an Asset Sale unless (i) the Company or
the Subsidiary, as the case
-46-
may be, receives consideration at the time of such Asset Sale at least equal to
the Fair Market Value (evidenced by a resolution of the Board of Directors of
the Company set forth in an Officers' Certificate delivered to the Trustee) of
the assets or Properties issued or sold or otherwise disposed of and (ii) at
least 85% of the consideration therefor received by the Company or such
Subsidiary is in the form of cash or Cash Equivalents; provided that the amount
--------
of (x) any liabilities (as shown on the Company's or such Subsidiary's most
recent balance sheet) of the Company or any Subsidiary (other than contingent
liabilities and liabilities that are Subordinated Indebtedness or otherwise by
their terms subordinated to the Securities or the Subsidiary Guarantees) that
are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or such Subsidiary from further
liability and (y) any notes or other obligations received by the Company or any
such Subsidiary from such transferee that are converted by the Company or such
Subsidiary into cash within 180 days of closing such Asset Sale (to the extent
of the cash received), shall be deemed to be cash for purposes of this
provision.
Within 180 days after the receipt of any Net Cash Proceeds from any
Asset Sale, the Company may (i) apply all or any of the Net Cash Proceeds
therefrom to repay Indebtedness (other than Subordinated Indebtedness) of the
Company or any Subsidiary, provided, in each case, that the related loan
commitment of any revolving credit facility or other borrowing (if any) is
thereby permanently reduced by the amount of such Indebtedness so repaid, or
(ii) invest all or any part of the Net Cash Proceeds thereof in properties and
other capital assets that replace the properties or other capital assets that
were the subject of such Asset Sale or in other properties or other capital
assets that will be used in the Business. Pending the final application of any
such Net Cash Proceeds, the Company may temporarily reduce borrowings under any
revolving credit facility or otherwise invest such Net Cash Proceeds in any
manner that is not prohibited by this Indenture. Any Net Cash Proceeds from an
Asset Sale that are not applied or invested as provided in the first sentence of
this paragraph will be deemed to constitute "Available Proceeds Amount." When
-------------------------
the aggregate Available Proceeds Amount exceeds $2,500,000, the Company shall
make an offer to purchase, from all Holders of the Securities and any then
outstanding Pari Passu Indebtedness required to be repurchased or repaid on a
permanent basis in connection with an Asset Sale, an aggregate principal amount
of Securities and any such Pari Passu Indebtedness equal to such Available
Proceeds Amount as follows:
(i) (A) The Company shall make an offer to purchase (an "Asset
-----
Proceeds Offer") from all Holders of the Securities in accordance with the
--------------
procedures set forth in this Indenture the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out
of an amount (the "Payment Amount") equal to the product of such Available
--------------
Proceeds Amount multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Securities and the denominator of which
is the sum of the outstanding principal amount of the Securities and such
Pari Passu Indebtedness, if any (subject to probation in the event such
amount is less than the aggregate Offered Price (as defined in clause (ii)
below) of all Securities tendered), and (B) to the extent required by any
such Pari Passu Indebtedness and provided there is a permanent reduction in
the principal amount of such Pari Passu Indebtedness, the
-47-
Company shall make an offer to purchase such Pari Passu Indebtedness (a
"Pari Passu Offer") in an amount (the "Pari Passu Indebtedness Amount")
---------------- ------------------------------
equal to the excess of the Available Proceeds Amount over the Payment
Amount.
(ii) The offer price for the Securities shall be payable in cash in
an amount equal to 100% of the principal amount of the Securities tendered
pursuant to an Asset Proceeds Offer, plus accrued and unpaid interest, if
any, to the date such Asset Proceeds Offer is consummated (the "Offered
-------
Price"), in accordance with the procedures set forth in this Indenture. To
-----
the extent that the aggregate Offered Price of the Securities tendered
pursuant to an Asset Proceeds Offer is less than the Payment Amount
relating thereto or the aggregate amount of the Pari Passu Indebtedness
that is purchased or repaid pursuant to the Pari Passu Offer is less than
the Pari Passu Indebtedness Amount (such shortfall constituting an "Asset
-----
Proceeds Deficiency"), the Company may use such Asset Proceeds Deficiency,
-------------------
or a portion thereof, for general corporate purposes, subject to the
limitations of Section 4.03.
(iii) If the aggregate Offered Price of Securities validly tendered
and not withdrawn by Holders thereof exceeds the Payment Amount, Securities
to be purchased will be selected on a pro rata basis. Upon completion of
--- ----
such Net Proceeds Offer and Pari Passu Offer, the amount of Available
Proceeds Amount shall be reset to zero.
The Company shall not permit any Subsidiary to enter into or suffer to
exist any agreement (excluding Permitted Liens) that would place any restriction
of any kind (other than pursuant to law or regulation) on the ability of the
Company to make an Asset Proceeds Offer following any Asset Sale. The Company
will comply with Rule 14e-1 under the Exchange Act, and any other securities
laws and regulations thereunder, if applicable, in the event that an Asset Sale
occurs and the Company is required to purchase Securities as described above.
Any amounts remaining after the purchase of Securities pursuant to an
Asset Proceeds Offer shall be returned by the Trustee to the Company.
SECTION 4.18. Limitation on Issuances and Sales of Capital Stock of
-----------------------------------------------------
Subsidiaries.
- ------------
The Company shall not cause or permit any of its Subsidiaries to issue
or sell any Capital Stock (other than to the Company or to a wholly-owned
Subsidiary of the Company) or permit any Person (other than the Company or a
wholly-owned Subsidiary of the Company) to own or hold any Capital Stock of any
Subsidiary of the Company or any Lien or security interest therein; provided,
--------
however, that this Section 4.18 shall not prohibit the disposition (by sale,
- -------
merger or otherwise) of all of the Capital Stock of a Subsidiary provided any
Net Cash Proceeds therefrom are applied in accordance with Section 4.17.
SECTION 4.19. Limitation on Status as Investment Company.
------------------------------------------
The Company shall not, nor shall it permit any Subsidiary Guarantor
to, register as an "investment company" (as that term is defined in the
Investment Company Act
-48-
of 1940, as amended), or otherwise become subject to regulation under the
Investment Company Act of 1940.
SECTION 4.20. Sale and Leaseback Transactions.
-------------------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, enter into any sale and leaseback transaction; provided that the Company or
--------
any Subsidiary, as applicable, may enter into a sale and leaseback transaction
if (i) the Company could have (a) incurred Indebtedness in an amount equal to
the Attributable Indebtedness relating to such sale and leaseback transaction
pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in
clause (b) of Section 4.04 and (b) incurred a Lien to secure such Indebtedness
pursuant to the covenant described above under Section 4.15, (ii) the gross cash
proceeds of such sale and leaseback transaction are at least equal to the Fair
Market Value (as determined in good faith by the Board of Directors of the
Company and set forth in an Officers' Certificate delivered to the Trustee) of
the property that is the subject of such sale and leaseback transaction and
(iii) the transfer of assets in such sale and leaseback transaction is permitted
by, and the Company applies the proceeds of such transaction in compliance with,
the covenant described under Section 4.17.
SECTION 4.21. Additional Subsidiary Guarantees.
--------------------------------
If the Company or any of its Subsidiaries transfers or causes to be
transferred, in one transaction or a series of related transactions, any
property to any Subsidiary that is not a Subsidiary Guarantor, or if the Company
or any of its Subsidiaries shall organize, acquire or otherwise invest in
another Subsidiary having total assets with a book value in excess of $50,000,
then such transferee or acquired or other Subsidiary shall (i) execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory
to the Trustee pursuant to which such Subsidiary shall fully and unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms set forth in the Indenture and (ii) deliver to the Trustee an Opinion
of Counsel that such supplemental indenture has been duly authorized, executed
and delivered by such Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Subsidiary. Thereafter, such Subsidiary shall be
a Subsidiary Guarantor for all purposes of the Indenture.
SECTION 4.22. Limitation on Dividends.
-----------------------
The Company will not declare or pay any dividend or make any
distribution (other than dividends or distributions payable solely in Qualified
Capital Stock of the Company) on shares of the Company's Capital Stock to
holders of such Capital Stock.
-49-
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sale of Assets.
------------------------------------------
(a) The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the Company's assets (determined on a consolidated basis for the Company and
the Company's Subsidiaries) whether as an entirety or substantially as an
entirety to any Person unless: (i) either (1) the Company shall be the
surviving or continuing corporation or (2) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or the
Person which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and of the Company's
Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be
----------------
a corporation organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia and (y) shall expressly assume,
by supplemental indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Securities and the
performance of every covenant of the Securities, this Indenture and the
Registration Rights Agreement on the part of the Company to be performed or
observed; (ii) immediately after giving effect to such transaction and, if
applicable, the assumption contemplated by clause (i)(2)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness Incurred or
anticipated to be Incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, (1)
shall have a Consolidated Net Worth equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction and (2) shall be
able to Incur at least $1.00 of additional Indebtedness pursuant to paragraph
(b) of Section 4.04 hereof; provided that in determining the Consolidated Fixed
--------
Charge Coverage Ratio of the Company or such Surviving Entity, as the case may
be, such ratio shall be calculated on a pro forma basis as if the transaction
---------
(including the Incurrence of any Indebtedness or Acquired Indebtedness) took
place on the first day of the Four Quarter Period; (iii) immediately before and
immediately after giving effect to such transaction and, if applicable, the
assumption contemplated by clause (i)(2)(y) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness Incurred
or anticipated to be Incurred and any Lien granted in connection with or in
respect of the transaction) no Default and no Event of Default shall have
occurred or be continuing; and (iv) the Company or the Surviving Entity shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.
(b) Upon any such consolidation, merger, conveyance, lease or
transfer in accordance with the foregoing, the successor Person formed by such
consolidation or into
-50-
which the Company is merged or to which such conveyance, lease or transfer is
made will succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company therein, and thereafter (except in the
case of a sale, assignment, transfer, lease, conveyance or other disposition)
the predecessor corporation will be relieved of all further obligations and
covenants under this Indenture and the Securities.
(c) Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Subsidiary Guarantee is to be released in accordance with the terms of the
Guarantee and this Indenture in connection with any transaction complying with
the provisions of Section 4.17) will not, and the Company will not cause or
permit any Subsidiary Guarantor to, consolidate with or merge with or into any
Person or sell, assign, transfer, care, convey or otherwise dispose of all or
substantially all of its assets, other than the Company or any other Subsidiary
Guarantor unless: (i) the entity formed by or surviving any such consolidation
or merger (if other than the Subsidiary Guarantor), or to which such disposition
shall have been made, is a corporation organized and existing under the laws of
the United States, any state thereof or the District of Columbia; (ii) such
entity assumes by supplemental indenture all of the obligations of the
Subsidiary Guarantor on the Subsidiary Guarantee; (iii) immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing; and (iv) immediately after giving effect to such transaction
and the use of any net proceeds therefrom on a pro forma basis, the Company
--- -----
could satisfy the provisions of clause (a)(ii) of this Section 5.01. Any merger
or consolidation of a Subsidiary Guarantor with and into the Company (with the
Company being the surviving entity) or another Subsidiary Guarantor need only
comply with clauses (a)(iii) and (a)(iv) of this Section 5.01.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
----------------
(1) the Company fails to pay interest on any Security when the same
becomes due and payable and such failure continues for a period of 30 days
or more; or
(2) the Company fails to pay the principal of or premium on any
Security, when such principal or premium becomes due and payable, whether
at maturity, upon redemption or otherwise (including the failure to make a
payment to purchase securities properly tendered pursuant to a Change of
Control Offer or an Asset Proceeds Offer); or
(3) the Company defaults in the observance or performance of any
other covenant or agreement contained in this Indenture or any Security
Document which default continues for a period of 30 days after the Company
receives written notice
-51-
specifying the default from the Trustee or from Holders of at least 25% in
principal amount of outstanding Securities (except in the case of a default
with respect to Section 5.01 hereof, which will constitute an Event of
Default with notice but without passage of time); or
(4) the Company defaults under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or of any Subsidiary of the
Company (or the payment of which is guaranteed by the Company or any
Subsidiary of the Company) which default (a) is caused by a failure to pay
principal of, interest or premium, if any, on such Indebtedness after any
applicable grace period provided in such Indebtedness on the date of such
default (a "Payment Default"), or (b) results in the acceleration of such
---------------
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $1,000,000; or
(5) one or more judgments in an aggregate amount in excess of
$1,000,000 (which are not covered by third-party insurance as to which a
financially sound insurer has not disclaimed coverage) being rendered
against the Company or any of its Subsidiaries and such judgments remain
undischarged, or unstayed or unsatisfied for a period of 60 days after such
judgment or judgments become final and non-appealable; or
(6) the Company or any of its Subsidiaries (A) admits in writing its
inability to pay its debts generally as they become due, (B) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (C) consents to the entry of a judgment, decree or order for relief
against it in an involuntary case or proceeding under any Bankruptcy Law,
(D) consents to the appointment of a Custodian of it or for substantially
all of its property, (E) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, (F) makes a general
assignment for the benefit of its creditors, or (G) takes any corporate
action to authorize or effect any of the foregoing;
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any of its Subsidiaries in an
involuntary case or proceeding under any Bankruptcy Law, which shall (A)
approve as properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any of its
Subsidiaries, (B) appoint a Custodian of the Company or any of its
Subsidiaries or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs, and such judgment, decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(8) any of the Subsidiary Guarantees ceases to be in full force and
effect, or any of the Subsidiary Guarantees is declared to be null and void
and unenforceable or
-52-
any of the Subsidiary Guarantees is found to be invalid or any of the
Subsidiary Guarantors denies its liability under its Subsidiary Guarantee
(other than by reason of release of a Subsidiary Guarantor in accordance
with the terms of this Indenture).
The Trustee shall, within 90 days after the occurrence of any Default
actually known to it, give to the Holders notice of such Default; provided that,
--------
except in the case of a Default in the payment of principal of or interest on
any of the Securities, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers, of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders.
Notwithstanding the foregoing, if an Event of Default specified in
Section 6.01(4) shall have occurred and be continuing, such Event of Default and
any consequential acceleration shall be automatically rescinded if the
Indebtedness that is the subject of such Event of Default has been repaid, or if
the default relating to such Indebtedness is waived or cured and if such
Indebtedness has been accelerated, the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness (provided, in each
--------
case, that such repayment, waiver, cure or rescission is effected within a
period of 10 days from the continuation of such default beyond the applicable
grace period or the occurrence of such acceleration).
SECTION 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default specified in
clauses (6) or (7) above with respect to the Company) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the then outstanding Securities may declare the
unpaid principal of, premium, if any, and accrued and unpaid interest on, all
the Securities then outstanding to be due and payable, by a notice in writing to
the Company (and to the Trustee, if given by Holders) and upon such declaration
such principal amount, premium, if any, and accrued and unpaid interest will
become immediately due and payable. If an Event of Default with respect to the
Company specified in clauses (6) or (7) above occurs, all unpaid principal of,
and premium, if any, and accrued and unpaid interest on, the Securities then
outstanding will ipso facto become due and payable without any declaration or
---- -----
other act on the part of the Trustee or any Holder. The Holders of a majority
in principal amount of the Securities then outstanding by notice to the Trustee
may rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the non-payment of the principal and premium, if any, and
interest of the Securities which has become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
-53-
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Security holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 2.09, 6.02, 6.07 and 9.02, the Holders of not less
than a majority in principal amount of the outstanding Securities by notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (1) and (2) of Section 6.01. The Company shall
deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents. When a Default or Event of Default is waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of not less than a majority in
principal amount of the outstanding Securities 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. Subject to Section 7.01,
however, the Trustee may refuse to follow any direction that conflicts with any
law or this Indenture that the Trustee determines may be unduly prejudicial to
the rights of another Security holder, or that may involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed
--------
proper by the Trustee which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture or any Security Document the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
any loss or expense caused by taking such action or following such direction.
SECTION 6.06. Limitation on Suits.
-------------------
Subject to Section 6.07 below, a Security holder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
-54-
(3) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holder or Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Security holder may not use this Indenture to prejudice the rights
of another Security holder or to obtain a preference or priority over such other
Security holder.
SECTION 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, 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 the Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of principal
and accrued interest and fees remaining unpaid, together with interest on
overdue principal, in each case at the rate per annum borne by the Securities
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 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Security holders allowed in any judicial proceedings relating to the Company or
the Subsidiary Guarantors, its creditors or its property and shall be entitled
and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Security 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 Security 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
-55-
the Trustee under Section 7.07. The Trustee may also take any other action with
respect to such claims as it deems necessary or advisable, including
participating as a member of any official committee of creditors appointed in
such proceeding. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Security
holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Security holder in any such
proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Company or the Subsidiary Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Security holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
SECTION 6.12. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
-56-
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default actually known to the Trustee has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs. The Trustee will be under no
obligation to exercise any of its rights or powers under this Indenture at the
request of any of the holders of Securities, unless they shall have offered and,
if requested, provided to the Trustee security and indemnity satisfactory to it.
(b) Except during the continuance of an Event of Default actually
known to the Trustee:
(1) The Trustee need perform only those duties as are specifically
set forth herein and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions and such
other documents delivered to it and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform, on their face, to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment
-57-
of such funds is not assured to it or it does not receive security or indemnity
reasonably satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance with
such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(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 or
any Subsidiary Guarantor. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may conclusively rely on 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 require
an Officers' Certificate and an Opinion of Counsel, which shall conform to the
provisions of Section 11.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(e) The Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered and, if requested, provided to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of the Company or such
Subsidiary Guarantor.
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(h) Except with respect to Section 4.01 and 4.08 hereof, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article 4 hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any event of Default
occurring pursuant to Sections 6.01(1) and 6.01(2) hereof or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Securities or the
Subsidiary Guarantees, it shall not be accountable for the Company's use of the
proceeds from the Securities, it shall not be responsible for the use or
application of any money by a Paying Agent other than the Trustee and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Securities or any statement in
the Securities other than the Trustee's certificate of authentication. The
Trustee makes no representations with respect to the effectiveness or adequacy
of this Indenture or the validity or perfection, if any, of Liens granted under
this Indenture. The Trustee shall not be responsible for independently
ascertaining or maintaining such validity or perfection, if any, and shall be
fully protected in relying upon certificates and opinions delivered to it in
accordance with the terms of this Indenture.
SECTION 7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and the
Trustee receives actual notice of such event, the Trustee shall mail to each
Security holder, as their names and addresses appear on the Securityholder list
described in Section 2.05, notice of the uncured Default or Event of Default
within 90 days after the Trustee receives such notice. Except in the case of a
Default or an Event of Default in payment of principal of, or interest on, any
Security, including the failure to make any payment due on (i) the Change of
Control Payment Date pursuant to a Change of Control Offer or (ii) the Purchase
Date pursuant to a Purchase Offer, the Trustee may withhold the notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Trustee in good faith determines
that withholding the notice is in the interest of the Securityholders.
-59-
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
This Section 7.06 shall not be operative as a part of this Indenture
until this Indenture is qualified under the TIA, and, until such qualification,
this Indenture shall be construed as if this Section 7.06 were not contained
herein.
Within 60 days after each May 15 beginning with May 15, 1998, the
Trustee shall, to the extent that any of the events described in TIA (S) 313(a)
occurred within the previous twelve months, but not otherwise, mail to each
Securityholder a brief report dated as of such June 15 that complies with TIA
(S) 313(a). The Trustee also shall comply with TIA (S)(S) 313(b), 313(c) and
313(d).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each securities
exchange, if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become listed
on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder (which shall be agreed to from time to
time by the Company and the Trustee). The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall promptly reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel and any taxes or other expenses
incurred by a trust created pursuant to Section 8.01 hereof.
The Company shall indemnify the Trustee and each predecessor trustee
for, and hold it harmless against, any loss, liability, claim, damage or expense
incurred by the Trustee without negligence or willful misconduct on its part
arising out of or in connection with the administration of this trust and its
duties under this Indenture, including the reasonable expenses and attorneys'
fees of defending itself against any claim of liability arising hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. However, the failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate
in the defense (and may employ its own counsel) at the Company's expense. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation of this Indenture
by the Trustee if such violation arose from the Trustee's negligence or bad
faith.
-60-
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a senior claim prior to the Securities against all money or
property held or collected by the Trustee, in its capacity as Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (6) or (7) of Section 6.01 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute expenses
of administration under any Bankruptcy Law. The Company's obligations under
this Section 7.07 and any claim arising hereunder shall survive the resignation
or removal of any Trustee, the discharge of the Company's obligations pursuant
to Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee 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 notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to its rights under Section 7.07, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Security holder.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least
-61-
10% in principal amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Security holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the resulting, surviving or transferee corporation without any further
act shall, if such resulting, surviving or transferee Person is otherwise
eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA (S)(S) 310(a)(1) and 310(a)(5). The Trustee and/or its
ultimate parent entity shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition.
The Trustee shall have a combined capital and surplus of at least
$150,000 as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA (S) 310(b); provided, however, that there
-------- -------
shall be excluded from the operation of TIA (S) 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA (S) 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee, in its capacity as Trustee hereunder shall comply with
TIA (S) 311(a), excluding, in accordance with TIA (S)(S) 311(a) and 311(b), any
creditor relationship listed in TIA (S) 311(b). A Trustee who has resigned or
been removed shall be subject to TIA (S) 31I(a) to the extent indicated.
-62-
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
----------------------------------------
(a) The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Securities upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and the Subsidiary Guarantors
shall be deemed to have been released and discharged from their respective
obligations with respect to the outstanding Securities and the Subsidiary
Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
----------------
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of the Sections and matters
-----------
under this Indenture referred to in (i) and (ii) below, and to have satisfied
all their respective obligations under such Securities, the Subsidiary
Guarantees and this Indenture, except for the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders
of outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of and interest on such Securities when such payments
are due and (ii) obligations listed in Section 8.03, subject to compliance with
this Section 8.01. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company and the Subsidiary Guarantors
shall be released and discharged from their respective obligations under any
covenant contained in Article 5 and in Sections 4.03 through 4.22 with respect
to the outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities
-------------------
shall thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Company and any Subsidiary Guarantor 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 6.01(3), nor shall any event referred to in Section 6.01(4) or (5)
thereafter constitute a Default or an Event of Default thereunder but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby.
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(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(1) The Company shall have irrevocably deposited or caused to be
deposited, in trust, with the Trustee, for the benefit of the Holders, U.S.
Legal Tender or direct non-callable obligations of, or non-callable
obligations guaranteed by, the United States of America for the payment of
which obligation or guarantee the full faith and credit of the United
States of America is pledged ("U.S. Government Obligations") maturing as to
---------------------------
principal and interest in such amounts and at such times as are sufficient,
without consideration of the reinvestment of such interest and after
payment of all Federal, state and local taxes or other charges or
assessments in respect thereof payable by the Trustee, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof (in form and substance reasonably
satisfactory to the Trustee) delivered to the Trustee, to pay the principal
of, premium, if any, and interest on all the outstanding Securities on the
dates on which any such payments are due and payable in accordance with the
terms of this Indenture and of the Securities (whether at stated maturity
or on the applicable redemption date);
(2) Such deposits shall not cause the Trustee to have a conflicting
interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating
that no Default or Event of Default or event which with notice or lapse of
time or both would become a Default or an Event of Default with respect to
the Securities shall have occurred and be continuing on the date of such
deposit or, insofar as Section 6.01(6) or (7) is concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating
that such deposit will not result in a Default under this Indenture or a
breach or violation of, or constitute a default under, any other material
instrument or agreement to which the Company or any of its Subsidiaries is
a party or by which it or its property is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the Trustee to the
effect that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the Issue Date,
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
state that Holders of the Securities will not recognize income gain or loss
for Federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to Federal income taxes
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred, or (ii) in the event the
Company elects paragraph (c) hereof, the Company shall deliver to the
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Trustee an Opinion of Counsel in the United States, in form and substance
reasonably satisfactory to the Trustee, to the effect that Holders of the
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and the defeasance contemplated hereby
and will be subject to Federal income tax in the same amounts and in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(6) The deposit shall not result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(7) The Company shall have delivered to the Trustee an Officer's
Certificate, in form and substance reasonably satisfactory to the Trustee,
stating that the deposit under clause (1) was not made by the Company or
any Subsidiary with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or any Subsidiary or others;
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel, in form and substance reasonably satisfactory to the Trustee, to
the effect that, (A) the trust funds will not be subject to any rights of
holders of Indebtedness, including, without limitation, those rights
arising under this Indenture, and (B) the 91st day following the deposit
after the trust funds will not be subject to any applicable Bankruptcy Law;
provided, however, that if a court were to rule under any such law in any
-------- -------
case or proceeding that the trust funds remained property of the Company,
no opinion needs to be given as to the effect of such laws on the trust
funds except the following: (A) assuming such trust funds remained in the
Trustee's possession prior to such court ruling to the extent not paid to
Holders of Securities, the Trustee will hold, for the benefit of the
Holders of Securities, a valid and enforceable security interest in such
trust funds that is not avoidable in bankruptcy or otherwise, subject only
to principles of equitable subordination, (B) the Holders of Securities
will be entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used, and (C) no property, rights in
property or other interests granted to the Trustee or the Holders of
Securities in exchange for or with respect to any of such funds will be
subject to any prior rights of any other person, subject only to prior
Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or
any section of any other Bankruptcy Law having the same effect), but still
subject to the foregoing clause (B); and
(9) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
specified herein relating to the defeasance contemplated by this Section
8.01 have been complied with.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time
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of such deposit, for the giving of the notice of such redemption or redemptions
by the Trustee in the name and at the expense of the Company.
SECTION 8.02. Satisfaction and Discharge.
--------------------------
This Indenture shall upon the request of the Company cease to be of
further effect (except as provided in Section 8.03) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07 and (B) Securities
for whose payment money has been deposited in trust with the Trustee or any
Paying Agent and thereafter paid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their maturity within one
year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (A), (B) or (C) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose money or U.S. Government Obligations in an amount sufficient (as
certified by an independent public accountant designated by the Company) to pay
and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities which have
become due and payable) or the stated maturity or Redemption Date, as the case
may be;
(b) the Company has paid or caused to paid all other sums then due
and payable hereunder by the Company;
(c) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit and after
giving effect to such deposit; and
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(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
SECTION 8.03. Survival of Certain Obligations.
-------------------------------
Notwithstanding the satisfaction and discharge of this Indenture and
of the Securities referred to in Section 8.01 or 8.02, the respective
obligations of the Company and the Trustee under Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.08. 2.10, 2.12, 3.01, 3.02, 3.03, 3.04, 3.05, 3.06, 3.07(a),
4.02, 6.07, Article Seven, Sections 8.04, 8.05, 8.06 and 8.07 shall survive
until the Securities are no longer outstanding, and thereafter the obligations
of the Company and the Trustee under Sections 7.07, 8.04, 8.05, 8.06 and 8.07
shall survive. Nothing contained in this Article Eight shall abrogate any of
the obligations or duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
--------------------------------------
Subject to Section 8.07, after (i) the conditions of Section 8.01 or
8.02 have been satisfied, (ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company and (iii) the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
---------------------------
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it pursuant to this Article Eight in the irrevocable
trust established pursuant to Section 8.01 or 8.02. The Trustee shall apply the
deposited U.S. Legal Tender or the U.S. Government Obligations, together with
earnings thereon, either directly or through the Paying Agent, in accordance
with this Indenture to the payment of principal of and interest on the
Securities. The U.S. Legal Tender or U.S. Government Obligations so held in
trust and deposited with the Trustee in compliance with Section 8.01 or 8.02
shall not be part of the trust estate under this Indenture, but shall constitute
a separate trust fund for the benefit of all Holders entitled thereto.
SECTION 8.06. Repayment to the Company or Subsidiary Guarantors: Unclaimed
-------------------------------------------------------------
Money.
-----
Subject to Sections 7.07 and 8.01, the Trustee shall promptly pay to
the Company, or if deposited with the Trustee by any Subsidiary Guarantor, to
such Subsidiary Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section 8.01, held
by it at any time. The Trustee and the Paying Agent shall pay to the Company or
any Subsidiary Guarantor, as the case may be,
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upon receipt by the Trustee or the Paying Agent, as the case may be, of an
Officers' Certificate, any money held by it for the payment of principal,
premium, if any, or interest that remains unclaimed for one year after payment
to the Holders is required; provided, however, that the Trustee and the Paying
-------- -------
Agent before being required to make any payment may, but need not, at the
expense of the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company of any Subsidiary Guarantor, as the
case may be, Security holders entitled to money must look solely to the Company
for payment as general creditors unless an applicable abandoned property law
designates another person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
SECTION 8.07. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
and only then the Company's and each Subsidiary Guarantor's, if any, obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture until such time as
the Trustee is permitted to apply all such money or U.S. Government Obligations
in accordance with this Indenture provided, however, that if the Company or the
-------- -------
Subsidiary Guarantors, as the case may be, have made any payment of principal
of, premium, if any, or interest on any Securities because of the reinstatement
of its obligations, the Company or the Subsidiary Guarantors, as the case may
be, shall be, subrogated to the rights of the holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
--------------------------
The Company and each Subsidiary Guarantor, when authorized by a Board
Resolution, and the Trustee, together, may amend or supplement this Indenture or
the Securities without notice to or consent of any Security holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to evidence the succession in accordance with Article V hereof of
another Person to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
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(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any other change that does not materially adversely
affect the rights of any Securityholders hereunder; or
(5) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA; or
(6) to add or release any Subsidiary Guarantor pursuant to the terms
of this Indenture; or
(7) to evidence and provide for the acceptance or appointment
hereunder by a successor Trustee with respect to the Securities.
provided that the Company has delivered to the Trustee an Opinion of Counsel and
- --------
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
-----------------------
Subject to Section 6.07, the Company and each Subsidiary Guarantor,
when authorized by a Board Resolution, and the Trustee, together, with the
written consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Securities, may amend or supplement this
Indenture, or the Securities, without notice to any other Securityholders.
Subject to Section 6.07, the Holder or Holders of a majority in aggregate
principal amount of the outstanding Securities may waive compliance by the
Company with any provision of this Indenture, or the Securities without notice
to any other Securityholder. Without the consent of each Securityholder
affected hereby, however, no amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Subsidiary Guarantees;
(2) reduce the rate or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal amount of any Security;
(4) change the Maturity Date of any Security, or change the date on
which any Securities may be subject to redemption or repurchase or reduce
the redemption price or repurchase price therefor;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Security on or after
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the due date thereof or to bring suit to enforce such payment, or
permitting Holders of a majority in principal amount of the Securities to
waive Defaults or Events of Default;
(6) make any changes in Section 6.04, 6.07 or this Section 9.02;
(7) make the principal of, or the interest on any Security payable in
money other than as provided for in this Indenture, the Securities and the
Guarantees as in effect on the date hereof,
(8) affect the ranking of the Securities or the Guarantees, in each
case in a manner adverse to the Holders;
(9) amend, modify or change the obligation of the Company to make or
consummate a Change of Control Offer, or an Asset Proceeds Offer or waive
any default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers; or
(10) release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or the Indenture otherwise than in
accordance with the terms of the Indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders 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 supplemental indenture.
SECTION 9.03. Compliance with TIA.
-------------------
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by notice to the Trustee
or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have
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consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
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 revoke any consent previously given, whether or not such
persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 120 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (10) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new security shall not
affect the validity of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine provided that the Trustee may, but
--------
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and constituted the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion of Counsel shall
be at the expense of the Company, and the Trustee shall have a lien under
Section 7.07 for any such expense.
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ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
-----------------------
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as the
"Subsidiary Guarantee") to each Holder of a Security authenticated and delivered
- ---------------------
by the Trustee and to the Trustee and its successors and assigns, the Securities
or the Obligations of the Company hereunder or thereunder, that: (i) the
principal of and interest on the Securities will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue principal, if any, and
interest on any interest, to the extent lawful, of the Securities and all other
Obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Securities or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration or otherwise, subject, however, in the case of clauses
(i) and (ii) above, to the limitations set forth in Section 10.03. Each
Subsidiary Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, and action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and in this Subsidiary Guarantee. If any
Securityholder or the Trustee is required by any court or otherwise to return to
the Company, any Subsidiary Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Subsidiary
Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the
Trustee or such Securityholder, the Subsidiary Guarantees, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purposes of the Subsidiary Guarantees, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any acceleration of
such obligations as provided in Article Six, such obligations (whether or not
due and payable) shall forthwith become due and payable by each Subsidiary
Guarantor for the purpose of the Subsidiary Guarantees. A Subsidiary Guarantee
shall not become valid or obligatory for any purpose with respect to a Security
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unless the certificate of authentication on such Security shall have been signed
by or on behalf of the Trustee.
SECTION 10.02. Severability.
------------
In case any provision of the Subsidiary Guarantees 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 10.03. Limitation of Subsidiary Guarantor's Liability.
----------------------------------------------
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under the Subsidiary Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to Section 10.05, result in
the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not
constituting such fraudulent transfer or conveyance under federal or state law.
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
-------------------------------------------------------------
(a) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor or shall prevent any sale of assets
or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to the Company or another Subsidiary Guarantor.
Upon any such consolidation, merger, sale or conveyance, the Subsidiary
Guarantee given by such Subsidiary Guarantor shall no longer have any force or
effect.
(b) Except as set forth in Article Four, Article Five hereof and
Section 10.04(c), nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into other Persons other than the Company or another Subsidiary
Guarantor (whether or not affiliated with the Subsidiary Guarantor) or shall
prevent any sale of assets, or conveyance of the property, of a Subsidiary
Guarantor as an entirety or substantially as an entirety, to Persons other than
the Company or another Subsidiary Guarantor (whether or not affiliated with the
Subsidiary Guarantor); provided, however, that, (i) immediately after such
-----------------
transaction, and giving effect thereto such transaction does not (a) violate any
covenants set forth herein or (b) result in a Default or Event of Default under
this Indenture that is continuing, and (ii) upon any such consolidation, merger,
sale or conveyance, the Subsidiary Guarantee set forth in this Article Ten, and
the due
-73-
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by such Subsidiary Guarantor, shall be
expressly assumed (in the event that the Subsidiary Guarantor is not the
surviving Person in the merger), by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee, by the Person formed by
such consolidation, or into which the Subsidiary Guarantor shall have merged, or
by the Person that shall have acquired such assets or property. In the case of
any such consolidation, merger, sale or conveyance and upon the assumption by
the successor corporation, by supplemental indenture executed and delivered to
the Trustee and satisfactory in form to the Trustee of the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor; provided, however, that solely
-------- -------
for purposes of computing amounts described in subclause (iii) of the first
paragraph of Section 4.03 any such successor Person shall only be deemed to have
succeeded to and be substituted for any Subsidiary Guarantor with respect to
periods subsequent to the effective time of such merger, consolidation or
transfer of assets.
(c) Upon the sale or disposition (whether by merger, stock purchase,
asset sale or otherwise) of a Subsidiary Guarantor (or all or substantially all
its assets) to an entity which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of this Indenture
(including, without limitation, Sections 4.17, 4.20 and 4.21), such Subsidiary
Guarantor shall be deemed released from all obligations under this Article Ten
without any further action required on the part of the Trustee or any Holder;
provided, however, that any such termination shall occur only to the extent that
- -------- -------
all obligations of such Subsidiary Guarantor under all of its Guarantees of, and
under all of its pledges of assets or other security interests which secure, any
other Indebtedness of the Company shall also terminate upon such release, sale
or transfer.
The Trustee shall deliver an appropriate instrument or instruments
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate and Opinion of Counsel certifying as to the compliance
with this Section 10.04. Any Subsidiary Guarantor not so released remains liable
for the full amount of principal of and interest on the Securities as provided
in this Article Twelve.
SECTION 10.05. Contribution.
------------
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
----- --
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Subsidiary Guarantee, such Funding Guarantor
- ------------------
shall be entitled to a contribution from all other Subsidiary Guarantors in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
- --- ----
(including the Funding Guarantor) for all payments, damages and expenses
incurred by that Funding Guarantor in discharging the Company's obligations with
respect to the Securities or any other Subsidiary Guarantor's obligations with
respect to the Subsidiary Guarantee. "Adjusted Net Assets" of such Subsidiary
-------------------
Guarantor at any date shall
-74-
mean the lesser of the amount by which (x) the Fair Value of the property of
such Subsidiary Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date (other than
liabilities of such Subsidiary Guarantor under Indebtedness Subordinated to such
Subsidiary Guarantor's Subsidiary Guarantee)), but excluding liabilities under
the Subsidiary Guarantee, of such Subsidiary Guarantor at such date and (y) the
present fair salable value of the assets of such Subsidiary Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Subsidiary Guarantor in
respect of the obligations of such Subsidiary under the Subsidiary Guarantee),
excluding debt in respect of the Subsidiary Guarantee of such Subsidiary
Guarantor, as they become absolute and matured.
SECTION 10.06. Waiver of Subrogation.
---------------------
Until all Subsidiary Guarantee Obligations are paid in full each
Subsidiary Guarantor hereby irrevocably waives any claims or other rights which
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Subsidiary Guarantor's
obligations under the Subsidiary Guarantee and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall,
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Subsidiary Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
10.06 is knowingly made in contemplation of such benefits.
SECTION 10.07. Execution of Subsidiary Guarantee.
---------------------------------
To evidence their guarantee to the Securityholders set forth in this
Article Ten, the Subsidiary Guarantors hereby agree to execute the Subsidiary
Guarantee in substantially the form included in Exhibit A-1 and A-2, which shall
be endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee
set forth in this Article Ten shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Subsidiary Guarantee. Each such Subsidiary Guarantee shall be signed on behalf
of each Subsidiary
-75-
Guarantor by an Officer (who shall, in each case, have been duly authorized by
all requisite corporate actions) prior to the authentication of the Security on
which it is endorsed, and the delivery of such Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of such
Subsidiary Guarantee on behalf of such Subsidiary Guarantor. Such signature upon
the Subsidiary Guarantee may be by manual or facsimile signature of such Officer
and may be imprinted or otherwise reproduced on the Subsidiary Guarantee, and in
case any such Officer who shall have signed the Subsidiary Guarantee shall cease
to be such officer before the Security on which such Subsidiary Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Security nevertheless may be authenticated and delivered
or disposed of as though the person who signed the Subsidiary Guarantee had not
ceased to be such Officer of the Subsidiary Guarantor.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive each
such Subsidiary Guarantor from performing its Subsidiary Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each such Subsidiary Guarantor hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of Sections 310 to 318, inclusively of the
TIA, the imposed duties shall control.
SECTION 11.02. Notices.
-------
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
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if to the Company or any Subsidiary Guarantor:
VIALOG Corporation
Ten New England Business Center, Suite 302
Andover, Massachusetts 01810
Attention: President
Facsimile: (978) 975-7208
Telephone: (978) 975-3700
with copies to:
Mirick, O'Connell, DeMallie & Lougee, LLP
1700 Bank of Boston Tower
100 Front Street
Worcester, MA 01608
Attention: David L. Lougee
Facsimile: (508) 752-7305
Telephone: (508) 799-0541
if to the Trustee:
State Street Bank and Trust Company
Corporate Trust Division
Two International Place
Boston, Massachusetts 02110
Attention: Mr. Roland Gustafsen
Facsimile: (617) 664-5371
Telephone: (617) 664-5665
with copies to:
Peabody & Arnold
50 Rowes Wharf
Boston, Massachusetts 02110
Attention: Robert J. Coughlin
Facsimile: (617) 951-2125
Telephone: (617) 951-2100
Each of the Company, the Subsidiary Guarantors and the Trustee by
written notice to each other such person may designate additional or different
addresses for notices to such person. Any notice or communication to the Company
and the Trustee, shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered
-77-
back, if telexed; when receipt is acknowledged, if telecopied; and five (5)
calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any notice or communication mailed to a Security holder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture, the
Securities or the Subsidiary Guarantees. The Company, the Trustee, the
Registrar and any other person shall have the protection of TIA (S) 312(c).
SECTION 11.04. 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 at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. 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 the Officers'
Certificate required by Section 4.08, shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
-78-
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
--------
however, that with respect to matters of fact an Opinion of Counsel may
-------
rely on an Officers' Certificate or certificates of public officials.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such Person
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to such other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee, Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 11.07. Legal Holidays.
--------------
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day and no interest shall accrue for the
period from such Redemption Date to such succeeding Business Day.
SECTION 11.08. Governing Law.
-------------
THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
-79-
SECTION 11.10. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder, partner or incorporator,
as such, of the Company or any Subsidiary Guarantor whether past, present or
future shall not have any liability for any obligations of the Company or such
Subsidiary Guarantor under the Securities, this Indenture or the Subsidiary
Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 11.11. Successors.
----------
This Agreement shall inure to the benefit of and be binding upon the
successors and assignees of the Company, the Subsidiary Guarantees and the
Trustee.
SECTION 11.12. Counterparts.
------------
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
SECTION 11.13. Severability.
------------
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
SECTION 11.14. Entire Agreement.
----------------
This Agreement is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, warranties, contracts, understandings,
correspondence, conversations and memoranda between the parties hereto, any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
-80-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
VIALOG CORPORATION
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: President and Chief Executive Officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Roland S. Gustafsen
-------------------------------
Name: Roland S. Gustafsen
Title: Assistant Vice President
THE SUBSIDIARY GUARANTORS:
TELEPHONE BUSINESS MEETINGS, INC.
d/b/a ACCESS CONFERENCE CALL SERVICE
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: Authorized Signatory
CONFERENCE SOURCE INTERNATIONAL,
INC.
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: Authorized Signatory
CALL POINTS, INC.
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: Authorized Signatory
-81-
KENDALL SQUARE TELECONFERENCING,
INC. d/b/a THE CONFERENCE CENTER
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: Authorized Signatory
AMERICAN CONFERENCING COMPANY,
INC. d/b/a AMERICO
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: Authorized Signatory
COMMUNICATION DEVELOPMENT
CORPORATION
By: /s/ Glenn D. Bolduc
------------------------------
Name: Glenn D. Bolduc
Title: Authorized Signatory
-82-
SCHEDULE I
Specified Affiliate Transactions
The following are Specified Affiliate Transactions:
[To be completed.]
-83-
EXHIBIT A-1
-----------
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1993, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
--------------
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
PROMULGATED UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) PROMULGATED UNDER THE
SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
-------------------
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
PROMULGATED UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER THEREOF OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A PROMULGATED UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHED (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-
DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY, (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
PROMULGATED UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 PROMULGATED UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, WRITTEN LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
-------------------- ------------- ----
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
- ------
-84-
[THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING OF
SECTION 1273(a) OF THE INTERNAL REVENUE CODE OF 1986. THE ISSUE PRICE IS
$1,000.00 FOR EACH $1,000.00 OF STATED PRINCIPAL AMOUNT. THE ORIGINAL ISSUE
DISCOUNT IS $57.93 FOR EACH $1,000.00 OF STATED PRINCIPAL AMOUNT. THE ISSUE
DATE IS NOVEMBER 12, 1997. THE YIELD TO MATURITY IS APPROXIMATELY 14.7%
COMPOUNDED SEMIANNUALLY. ORIGINAL ISSUE DISCOUNT WILL BE ALLOCATED BASED ON
ACCRUAL PERIODS ENDING ON EACH DATE ON WHICH AN INTEREST PAYMENT IS DUE AND THE
360 DAYS PER YEAR CONVENTION.]
-85-
CUSIP No. [ ]
VIALOG CORPORATION
12 3/4% Senior Note
due November 15, 2001
No. $
VIALOG CORPORATION, a Massachusetts corporation (the "Company", which term
includes any successor corporation), for value received promises to pay to
or registered assigns, the principal sum of Dollars, on November 15,
2001.
Interest Payment Dates: May 15 and November 15 commencing May 15, 1998
Record Dates: May 1 and November 15
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
VIALOG CORPORATION
[SEAL] By:
-----------------------------------
Name:
Title:
Attest:
- ------------------------------
Secretary
-86-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated: STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-----------------------------------
Authorized Signatory
-87-
VIALOG CORPORATION
12 3/4% Senior Note
due November 15, 2001
1. Interest.
--------
VIALOG CORPORATION, a Massachusetts corporation (the "Company"),
-------
promises to pay interest on the principal amount of this Security at the rate
per annum shown above, which rate is subject to increase of up to 1.50% per
annum in certain circumstances described in the Registration Rights Agreement
dated November 12, 1997 between the Company, the Initial Purchaser and the
Subsidiary Guarantors. The Company will pay interest semi-annually on May 15
and November 15 of each year (the "Interest Payment Date"), commencing May 15,
---------------------
1998. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from November 12, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment.
-----------------
On each Interest Payment Date, the Company shall pay interest on the
Securities (except defaulted interest) to the persons who are the registered
Holders at the close of business on the Record Date immediately preceding such
Interest Payment Date even if the Securities are canceled on registration of
transfer or registration of exchange after such Record Date, except as provided
in Section 2.17 of the Indenture with respect to defaulted interest. Holders
must surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest at the location of the principal office
of the Paying Agent in money of the United States that at the time of payment is
legal tender for payment of public and private debts ("U.S. Legal Tender").
-----------------
However, the Company may pay principal and interest by wire transfer in same day
funds, or, in the case of Physical Securities, by check payable in such U.S.
Legal Tender.
3. Paying Agent and Registrar.
--------------------------
Initially, State Street Bank and Trust Company (the "Trustee") will
-------
act as Paying Agent and Registrar. The Company may charge any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may act as Registrar or co-Registrar.
4. Indenture and Guarantees.
------------------------
The Company issued the Securities under an Indenture, dated as of
November 12, 1997 (the "Indenture"), among the Company, the Subsidiary
---------
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"),
---
as in effect on the date of the Indenture until such time as the Indenture is
qualified
-88-
under the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are referred
to the Indenture and said Act for a statement of them. The Securities are
general unsecured obligations of the Company limited in aggregate principal
amount to $75,000,000. Payment on each Security is guaranteed on a senior basis,
jointly and severally, by the Subsidiary Guarantors pursuant to Article Ten of
the Indenture.
5. Optional Redemption.
-------------------
The Securities will be redeemable, at the Company's option, in whole
at any time or in part from time to time, on and after November 15, 1999 at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the twelve-month period commencing on November 15 of the year
set forth below (but not including the date of maturity), plus, in each case,
accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
1999........................... 110%
2001........................... 105%
Notwithstanding the foregoing, at any time on or prior to November 15,
1999, the Company may redeem up to an aggregate of 35% of the original principal
amount of Securities at a redemption price of 112.75% of the principal amount
thereof, plus accrued and unpaid interest thereon, to the redemption date with
the net proceeds of any Public Equity Offering; provided that at least 65% in
--------
aggregate of the original principal amount of Securities remain outstanding
immediately after the occurrence of such redemption; and provided, further, that
-------- -------
such redemption occurs within 90 days of the date of the closing of such Public
Equity Offering.
In addition, prior to November 15, 1999, the Securities will be
redeemable at the Company's option, in whole or in part, at any time or from
time to time, upon not less than 30 nor more than 60 days' prior notice mailed
by first-class mail to each Holder's registered address, at a redemption price
(expressed as a percentage of principal amount) equal to the sum of the
principal amount of such Securities plus the applicable Make-Whole Premium
thereon at the time of redemption (subject to the right of Holders of record on
the relevant record date to receive interest due to the relevant interest
payment date).
The following definitions are used to determine the applicable Make-
Whole Premium:
"Applicable Make-Whole Premium" means, with respect to a Security at
the redemption date, the greater of (i) 1.0% of the principal amount of such
Security and (ii) the excess of (A) the present value of such time of (1) the
redemption price of such Security at November 15, 1999 plus (2) all required
interest payments (excluding accrued but unpaid interest) due on such Security
through November 1, 1999, computed using a discount rate
-89-
equal to the Treasury Rate plus 100 basis points, over (B) the principal amount
of such Security at such time.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two business days prior to the date fixed
for repayment (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the then
Weighted Average Life to Maturity) of the Securities; provided, however, that if
the Weighted Average Life to Maturity of the Securities is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given.
6. Repurchase at Option of Holder.
------------------------------
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
-----------------------
to $1,000 or an integral multiple thereof) of each Holder's Securities at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and any unpaid interest thereon, if any, to the Change of Control
Payment Date (as hereinafter defined) (the "Change of Control Payment"). Within
-------------------------
30 days following the occurrence of a Change of Control, the Company shall mail
a notice to each Holder describing the transaction or transactions and setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales, the
Indenture requires that certain proceeds be used, subject to the limitations
contained therein, to make an offer to all Holders of Securities (an "Asset
-----
Proceeds Offer") pursuant to Section 4.17 of the Indenture to purchase certain
- --------------
amounts of Securities in accordance with the procedures set forth in the
Indenture.
7. Notice of Redemption.
--------------------
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at such Holder's registered address. Securities in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption
date, interest will cease to accrue on Securities or portions thereof called for
redemption.
-90-
8. Sinking- Fund.
-------------
There will be no mandatory sinking fund payments for the Securities.
9. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith. The
Registrar need not register the transfer of or exchange any securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
10. Persons Deemed Owners.
---------------------
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
11. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain unclaimed for
one year, the Trustee and the Paying Agents will repay the funds to the Company
at its request subject to terms of the Indenture. After that, all liability of
the Trustee and such Paying Agents with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
----------------------------------------
The Company may be discharged from its obligations under the Indenture
and the Securities except for certain provisions thereof ("Legal Defeasance"),
----------------
and may be discharged from its obligations to comply with certain covenants
contained in the Indenture and the Securities ("Covenant Defeasance"), in each
-------------------
case upon satisfaction of certain conditions specified in the Indenture.
13. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA,
-91-
or make any other change that does not materially adversely affect the rights of
any Holder of a Security.
14. Restrictive Covenants.
---------------------
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to issue preferred or other
capital stock of subsidiaries, to sell assets, to permit restrictions on
dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets, to engage in transactions
with affiliates or to engage in certain businesses. The limitations are subject
to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
---------------------
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Sections 6.01(6) or (7) of
the Indenture with respect to the Company) occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest, including an accelerated
payment) if it determines that withholding notice is in their interest.
16. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
17. No Recourse Against Others.
--------------------------
No stockholder, director, officer, employee or incorporator, as such,
of the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the securities.
-92-
18. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
19. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security 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).
20. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
VIALOG Corporation, 3 Riverside Drive, Andover, MA 01810, Attn.: President.
-93-
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor Person under the Indenture) have unconditionally
guaranteed on a senior basis (such guarantee by each Subsidiary Guarantor being
referred to herein as the "Guarantee") (i) the due and punctual payment of the
principal of and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms set forth in Article
Ten of the Indenture and (ii) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, that the same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of any Subsidiary Guarantor shall have any liability under
the Guarantee by reason of his or its status as such stockholder, officer,
director or incorporator.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
SUBSIDIARY GUARANTORS:
TELEPHONE BUSINESS MEETINGS, INC.
d/b/a ACCESS CONFERENCE CALL SERVICE
By:
-----------------------------------
Name:
Title:
CONFERENCE SOURCE INTERNATIONAL,
INC.
By:
-----------------------------------
Name:
Title:
CALL POINTS, INC.
By:
-----------------------------------
-94-
Name:
Title:
KENDALL SQUARE TELECONFERENCING,
INC. d/b/a THE CONFERENCE CENTER
By:
-----------------------------------
Name:
Title:
AMERICAN CONFERENCING COMPANY,
INC. d/b/a AMERICO
By:
-----------------------------------
Name:
Title:
COMMUNICATION DEVELOPMENT
CORPORATION
By:
-----------------------------------
Name:
Title:
-95-
ASSIGNMENT FORM
I or we assign and transfer this Security to
______________________________________________________________________________
______________________________________________________________________________
(Print or type name, address and zip code of assignee)
______________________________________________________________________________
(Insert Social Security or other identifying number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act") covering resales of this Security (which
--------------
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) _____________, 1999, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that:
[Check One]
-----------
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by
Rule 144A thereunder.
or
--
[ ] (b) this Security is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.15 of the Indenture shall have
been satisfied.
Dated: Signed:
-------------------------- ---------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
-96-
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
--------------------- ------------------------------------
NOTICE: To be executed by an
executive officer
-97-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Sections 4.16 or 4.17 of the Indenture, check the appropriate box:
Section 4.16 [ ] Section 4.17 [ ]
If you want to elect to have only part of this Security purchased by the Company
pursuant to Sections 4.16 or 4.17 of the Indenture, state this amount:
$ ____________________________
(multiple of $1,000)
Date: Your Signature:
--------------------------- ----------------------------
(Sign exactly as your name
appears on the other side of
this Security )
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
-98-
EXHIBIT A-2
-----------
[FORM OF SERIES B SECURITY]
THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING OF
SECTION 1273(a) OF THE INTERNAL REVENUE CODE OF 1986. THE ISSUE PRICE IS
$1,000.00 FOR EACH $1,000 OF STATED PRINCIPAL AMOUNT. THE ORIGINAL ISSUE
DISCOUNT IS $57.93 FOR EACH $1,000.00 OF STATED PRINCIPAL AMOUNT. THE ISSUE
DATE IS NOVEMBER 12, 1997. THE YIELD TO MATURITY IS APPROXIMATELY 14.7%
COMPOUNDED SEMIANNUALLY. ORIGINAL ISSUE DISCOUNT WILL BE ALLOCATED BASED ON
ACCRUAL PERIODS ENDING ON EACH DATE ON WHICH AN INTEREST PAYMENT IS DUE AND THE
360 DAYS PER YEAR CONVENTION.
VIALOG CORPORATION CUSIP No. [ ]
12 3/4% Senior Note
due November 15, 2001
No. $
VIALOG CORPORATION, a Massachusetts corporation (the "Company", which
term includes any successor corporation), for value received promises to pay to
or registered assigns, the principal sum of Dollars, on November
15, 2001.
Interest Payment Dates: May 15 and November 15 commencing May 15,
1997
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
VIALOG CORPORATION
[SEAL]
By:
-------------------------------
Name:
Attest: Title:
- -------------------------------
Secretary
-99-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
Dated: STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-----------------------------------
Authorized Signatory
-100-
VIALOG CORPORATION
12 3/4% Senior Note
due November 15, 2001
1. Interest.
--------
VIALOG CORPORATION, a Massachusetts corporation (the "Company"),
-------
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semi-annually on May 15
and November 15 of each year (the "Interest Payment Date"), commencing May 15,
1998. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from November 12, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment.
-----------------
On each Interest Payment Date, the Company shall pay interest on the
Securities (except defaulted interest) to the persons who are the registered
Holders at the close of business on the Record Date immediately preceding such
Interest Payment Date even if the Securities are canceled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest at the location of the principal office
of the Paying Agent in money of the United States that at the time of payment is
legal tender for payment of public and private debts ("U.S. Legal Tender").
-----------------
However, the Company may pay principal and interest by wire transfer in same day
funds, or, in the case of Physical Securities, by check payable in such U.S.
Legal Tender.
3. Paying Agent and Registrar.
--------------------------
Initially, State Street Bank and Trust Company (the "Trustee") will
-------
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may act as Registrar or co-Registrar.
4. Indenture and Guarantees.
------------------------
The Company issued the Securities under an Indenture, dated as of
November 12, 1997 (the "Indenture"), among the Company, the Subsidiary
---------
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"),
---
as in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and said Act for a statement
-101-
of them. The Securities are general unsecured obligations of the Company limited
in aggregate principal amount to $75,000,000. Payment on each Security is
guaranteed on a senior basis, jointly and severally, by the Subsidiary
Guarantors pursuant to Article Ten of the Indenture.
5. Optional Redemption.
-------------------
The Securities will be redeemable, at the Company's option, in whole
at any time or in part from time to time, on and after November 15, 1999 at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the twelve-month period commencing on November 15 of the year
set forth below (but not including the date of maturity), plus, in each case,
accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
1999........................ 110%
2000........................ 105%
Notwithstanding the foregoing, at any time on or prior to November 15,
1999, the Company may redeem up to an aggregate of 35% of the original principal
amount of Securities at a redemption price of 112.75% of the original principal
amount thereof, plus accrued and unpaid interest thereon, to the redemption date
with the net proceeds of any Public Equity Offering; provided that at least 65%
--------
in aggregate of the original principal amount of Securities remain outstanding
immediately after the occurrence of such redemption; and provided, further, that
-------- -------
such redemption occurs within 90 days of the date of the closing of such Public
Equity Offering.
In addition, prior to November 15, 1999, the Notes will be redeemable
at the Company's option, in whole or in part, at any time or from time to time,
upon not less than 30 nor more than 60 days' prior notice mailed by first-class
mail to each Holder's registered address, at a redemption price (expressed as a
percentage of principal amount) equal to the sum of the principal amount of such
Notes plus the applicable Make-Whole Premium thereon at the time of redemption
(subject to the right of Holders of record on the relevant record date to
receive interest due to the relevant interest payment date).
The following definitions are used to determine the applicable Make-
Whole Premium:
"Applicable Make-Whole Premium" means, with respect to a Note at the
redemption date, the greater of (i) 1.0% of the principal amount of such Note
and (ii) the excess of (A) the present value of such time of (1) the redemption
price of such Note at November 15, 1999 plus (2) all required interest payments
(excluding accrued but unpaid interest) due on such Note through November 1,
1999, computed using a discount rate equal to the Treasury Rate plus 100 basis
points, over (B) the principal amount of such Note at such time.
-102-
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two business days prior to the date fixed
for repayment (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the then
remaining average life to Stated Maturity) of the Notes; provided, however, that
if the average life to Stated Maturity of the Notes is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given.
6. Repurchase at option of Holder.
------------------------------
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
-----------------------
to $1,000 or an integral multiple thereof) of each Holder's Securities at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and any unpaid interest thereon, if any, to the Change of Control
Payment Date (as hereinafter defined) (the "Change of Control Payment"). Within
-------------------------
30 days following the occurrence of a Change of Control, the Company shall mail
a notice to each Holder describing the transaction or transactions and setting
forth the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales, the
Indenture requires that certain proceeds be used, subject to the limitations
contained therein, to make an offer to all Holders of Securities (an "Asset
-----
Proceeds Offer") pursuant to Section 4.17 of the Indenture to purchase certain
- --------------
amounts of Securities in accordance with the procedures set forth in the
Indenture.
7. Notice of Redemption.
--------------------
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at such Holder's registered address. Securities in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption
date, interest will cease to accrue on Securities or portions thereof called for
redemption.
8. Sinking-Fund.
------------
There will be no mandatory sinking fund payments for the Securities.
-103-
9. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection not register the
transfer of or exchange any securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in
part.
10. Persons Deemed Owners.
---------------------
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
11. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain unclaimed for
one year, the Trustee and the Paying Agents will repay the funds to the Company
at its request subject to terms of the Indenture. After that, all liability of
the Trustee and such Paying Agents with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
----------------------------------------
The Company may be discharged from its obligations under the Indenture
and the Securities except for certain provisions thereof ("Legal Defeasance"),
----------------
and may be discharged from its obligations to comply with certain covenants
contained in the Indenture and the Securities ("Covenant Defeasance"), in each
-------------------
case upon satisfaction of certain conditions specified in the Indenture.
13. Amendment; Supplements; Waiver.
------------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
-104-
14. Restrictive Covenants.
---------------------
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to issue preferred or other
capital stock of subsidiaries, to sell assets, to permit restrictions on
dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets, to engage in transactions
with affiliates or to engage in certain businesses. The limitations are subject
to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
15. Defaults and Remedies.
---------------------
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Sections 6.01(6) or (7) of
the Indenture with respect to the Company) occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest, including an accelerated
payment) if it determines that withholding notice is in their interest.
16. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
17. No Recourse Against Others.
--------------------------
No stockholder, director, officer, employee or incorporator, as such,
of the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the securities.
18. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
-105-
19. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security 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).
20. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
VIALOG Corporation, 3 Riverside Drive, Andover, MA 01810, Attn.: President.
-106-
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor Person under the Indenture) have unconditionally
guaranteed on a senior basis (such guarantee by each Subsidiary Guarantor being
referred to herein as the "Guarantee") (i) the due and punctual payment of the
principal of and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms set forth in Article
Ten of the Indenture and (ii) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, that the same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of any Subsidiary Guarantor shall have any liability under
the Guarantee by reason of his or its status as such stockholder, officer,
director or incorporator.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
SUBSIDIARY GUARANTORS:
TELEPHONE BUSINESS MEETINGS, INC.
d/b/a ACCESS CONFERENCE CALL SERVICE
By:
-------------------------------------
Name:
Title:
CONFERENCE SOURCE INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
CALL POINTS, INC.
By:
-------------------------------------
-107-
Name:
Title:
KENDALL SQUARE TELECONFERENCING,
INC. d/b/a THE CONFERENCE CENTER
By:
-------------------------------------
Name:
Title:
AMERICAN CONFERENCING COMPANY,
INC. d/b/a AMERICO
By:
-------------------------------------
Name:
Title:
COMMUNICATION DEVELOPMENT
CORPORATION
By:
-------------------------------------
Name:
Title:
-108-
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
--------------------------- ------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Sections 4.16 or 4.17 of the Indenture, check the appropriate box:
Section 4.16 [ ] Section 4.17 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Sections 4.16 or 4.17 of the Indenture, state the
amount: $
Dated: Signed:
-------------------------- ----------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
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EXHIBIT B
---------
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR
BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
---
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT C
---------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 12 3/4% Senior Notes due 2001, (the "Securities") of VIALOG Corporation.
----------
This Certificate relates to Securities held in* _______ book-entry or*
_______ certificated form by ____________ (the "Transferor").
----------
The Transferor:*
[_] has requested that the Registrar by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Security (or the portion thereof indicated above); or
[_] has requested that the Registrar by written order to exchange or register
the transfer of a Security or Securities.
[_] In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.15 of such Indenture, and that the
transfer of this Securities does not require registration under the Securities
Act of 1933, as amended (the "Securities Act") because[*]:
--------------
[_] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.15(a)(II)(A) or Section
2.15(d)(i)(A) of the Indenture).
[_] Such Security is being transferred to a qualified institutional buyer
(as defined in Rule 144A promulgated under the Act), in reliance on Rule
144A or in accordance with Regulation S promulgated under the Act.
[_] Such Security is being transferred in accordance with Rule 144
promulgated under the Securities Act.
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[_] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act,
other than Rule 144A or Rule 144 or Regulation S promulgated under the
Securities Act. An opinion of counsel to the effect that such transfer
does not require registration under the Securities Act accompanies this
Certificate.
------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------------
Date:
------------------------
*Check applicable box.
-113-
EXHIBIT D
---------
Transferee Letter of Representation
VIALOG Corporation
3 Riverside Drive
Andover, MA 01810
Ladies and Gentlemen:
In connection with our proposed purchase of 12 3/4% Senior Notes due
2001, (the "Securities") of VIALOG Corporation (the "Company") we confirm that:
---------- -------
1. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act") and, unless so
--------------
registered, may not be sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are
purchasing Securities to offer, sell or otherwise transfer such Securities prior
to the date which is two years after the later of the date of original issue and
the last date on which the Company or any affiliate of the Company was the owner
of such Securities, or any predecessor thereto (the "Resale Restriction
------------------
Termination Date") only (a) to the Company, (b) pursuant to a registration
- ----------------
statement which has been declared effective under the Securities Act, (c) so
long as the Securities are eligible for resale pursuant to Rule 144A, under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
---
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the
United States within the meaning of Regulation S promulgated under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act
that is purchasing for his own account or for the account of such an
institutional "accredited investor," or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in
each of the foregoing cases to any requirement of law that the disposition of
our property or the property of such investor account or accounts be at all
times within our or their control and to compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer of
the Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the registrar under
the Indenture pursuant to which the Securities were issued (the "Registrar")
---------
which shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 promulgated under the Securities Act and that it is acquiring such
Securities for investment purposes and not for distribution in violation of the
Securities Act. The Registrar and the Company reserve the right prior to any
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the Securities pursuant to clause (e) or (f) above to require the
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delivery of a written opinion of counsel, certifications, and or other
information satisfactory to the Company and the Registrar.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act)
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Securities for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act and we have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Securities, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment for an indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise sole
investment discretion.
4. You and your counsel are entitled to rely upon this letter and
you are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By:
-----------------------------------
Date:
---------------------------------
Upon transfer the Securities would be registered in the name of the new
beneficial owner as follows:
Name:
--------------------
Address:
-----------------
Taxpayer ID Number:
------
-115-
CROSS-REFERENCE TABLE
TIA Section Indenture Section
- ----------- -----------------
310(a)(1).............................................................7.10
(a)(2).............................................................7.10
(a)(3).............................................................N.A.
(a)(4).............................................................N.A.
(a)(5).......................................................7.08; 7.10
(b)...................................................7.08; 7.10; 11.02
(c)................................................................N.A.
311(a)................................................................7.11
(b)................................................................7.11
(c)................................................................N.A.
312(a)................................................................2.05
(b)...............................................................11.03
(c)...............................................................11.03
313(a)................................................................7.06
(b)................................................................7.06
(c).........................................................7.06; 11.02
(d)................................................................7.06
314(a)...................................................4.08; 4.10; 11.02
(b)................................................................N.A.
(c)(1)......................................................7.02; 11.04
(c)(2)......................................................7.02; 11.04
(c)(3).............................................................N.A.
(d)................................................................N.A.
(e)...............................................................11.05
(f)................................................................N.A.
315(a).............................................................7.01(b)
(b).........................................................7.05; 11.02
(c).............................................................7.01(a)
(d).......................................................6.05; 7.01(c)
(e)................................................................6.11
316(a)(last sentence).................................................2.09
(a)(1)(A)..........................................................6.05
(a)(1)(B)..........................................................6.04
(a)(2).............................................................N.A.
(b)................................................................6.07
317(a)(1).............................................................6.08
(a)(2).............................................................6.09
(b)................................................................2.04
318(a)...............................................................11.01
(c)...............................................................11.01
-116-
- -----------------------
N.A. means Not Applicable
-117-