Exhibit 4 (t)
EXECUTED COPY
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SIX FLAGS THEME PARKS INC.
12-1/4% Senior Subordinated Discount Notes due 2005
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INDENTURE
Dated as of June 23, 1995
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United States Trust Company of New York,
Trustee
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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.
(b) . . . . . . . . . . . . . . . 7.08;
7.10
(c) . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . 12.03
(c) . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . 12.02
(d) . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . 4.02;
4.09;
12.02
(b) . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . 4.10
315(a) . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . 7.05;
12.02
(c) . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . 6.11
316(a)(last . . . . . . . . . . . . . . . 12.06
sentence)
(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
N.A. means Not Applicable
_________________________
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . 26
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . 26
SECTION 1.04. Rules of Construction . . . . . . . . . 27
ARTICLE 2
The Securities
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SECTION 2.01. Form and Dating . . . . . . . . . . . . 28
SECTION 2.02. Execution and Authentication . . . . . 29
SECTION 2.03. Registrar and Paying Agent . . . . . . 30
SECTION 2.04. Paying Agent To Hold Money in Trust . . 30
SECTION 2.05. Securityholder Lists . . . . . . . . . 31
SECTION 2.06. Transfer and Exchange . . . . . . . . . 31
SECTION 2.07. Replacement Securities . . . . . . . . 39
SECTION 2.08. Outstanding Securities . . . . . . . . 39
SECTION 2.09. Temporary Securities . . . . . . . . . 39
SECTION 2.10. Cancellation . . . . . . . . . . . . . 40
SECTION 2.11. Defaulted Interest . . . . . . . . . . 41
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . 41
ARTICLE 3
Redemption
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SECTION 3.01. Notices to Trustee . . . . . . . . . . 42
SECTION 3.02. Selection of Securities To Be Redeemed 42
SECTION 3.03. Notice of Redemption . . . . . . . . . 42
SECTION 3.04. Effect of Notice of Redemption . . . . 43
SECTION 3.05. Deposit of Redemption Price . . . . . . 43
SECTION 3.06. Securities Redeemed in Part . . . . . . 44
ARTICLE 4
Covenants
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SECTION 4.01. Payment of Securities . . . . . . . . . 44
SECTION 4.02. SEC Reports . . . . . . . . . . . . . . 44
SECTION 4.03. Limitation on Indebtedness . . . . . . 45
SECTION 4.04. Limitation on Restricted Payments . . . 47
SECTION 4.05. Limitation on Restrictions on
Distributions from Subsidiaries . . . 51
SECTION 4.06. Limitation on Sales of Assets and
Subsidiary Stock . . . . . . . . . . 53
SECTION 4.07. Limitation on Transactions with
Affiliates . . . . . . . . . . . . . 56
SECTION 4.08. Change of Control . . . . . . . . . . . 57
SECTION 4.09. Compliance Certificate . . . . . . . . 58
SECTION 4.10. Further Instruments and Acts . . . . . 59
SECTION 4.11. Limitation on Liens . . . . . . . . . . 59
SECTION 4.12. Limitation on Sale/Leaseback
Transactions . . . . . . . . . . . . 59
SECTION 4.13. Limitation on Lines of Business . . . . 59
SECTION 4.14. Future Note Guarantors . . . . . . . . 59
ARTICLE 5
Successor Company
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SECTION 5.01. When Company May Merge or Transfer
Assets . . . . . . . . . . . . . . . 60
ARTICLE 6
Defaults and Remedies
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SECTION 6.01. Events of Default . . . . . . . . . . . 61
SECTION 6.02. Acceleration . . . . . . . . . . . . . 63
SECTION 6.03. Other Remedies . . . . . . . . . . . . 64
SECTION 6.04. Waiver of Past Defaults . . . . . . . . 64
SECTION 6.05. Control by Majority . . . . . . . . . . 64
SECTION 6.06. Limitation on Suits . . . . . . . . . . 64
SECTION 6.07. Rights of Holders to Receive Payment . 65
SECTION 6.08. Collection Suit by Trustee . . . . . . 65
SECTION 6.09. Trustee May File Proofs of Claim . . . 65
SECTION 6.10. Priorities . . . . . . . . . . . . . . 66
SECTION 6.11. Undertaking for Costs . . . . . . . . . 66
SECTION 6.12. Waiver of Stay or Extension Laws . . . 66
ARTICLE 7
Trustee
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SECTION 7.01. Duties of Trustee . . . . . . . . . . . 67
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SECTION 7.02. Rights of Trustee . . . . . . . . . . . 68
SECTION 7.03. Individual Rights of Trustee . . . . . 69
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . 69
SECTION 7.05. Notice of Defaults . . . . . . . . . . 69
SECTION 7.06. Reports by Trustee to Holders . . . . . 69
SECTION 7.07. Compensation and Indemnity . . . . . . 70
SECTION 7.08. Replacement of Trustee . . . . . . . . 70
SECTION 7.09. Successor Trustee by Merger . . . . . . 71
SECTION 7.10. Eligibility; Disqualification . . . . . 72
SECTION 7.11. Preferential Collection of Claims
Against Company . . . . . . . . . . . 72
ARTICLE 8
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities;
Defeasance . . . . . . . . . . . . . 72
SECTION 8.02. Conditions to Defeasance . . . . . . . 73
SECTION 8.03. Application of Trust Money . . . . . . 75
SECTION 8.04. Repayment to Company . . . . . . . . . 75
SECTION 8.05. Indemnity for Government Obligations . 75
SECTION 8.06. Reinstatement . . . . . . . . . . . . . 75
ARTICLE 9
Amendments
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SECTION 9.01. Without Consent of Holders . . . . . . 75
SECTION 9.02. With Consent of Holders . . . . . . . . 77
SECTION 9.03. Compliance with Trust Indenture Act . . 78
SECTION 9.04. Revocation and Effect of Consents and
Waivers . . . . . . . . . . . . . . . 78
SECTION 9.05. Notation on or Exchange of Securities . 78
SECTION 9.06. Trustee To Sign Amendments . . . . . . 78
SECTION 9.07. Payment for Consent . . . . . . . . . . 79
ARTICLE 10
Subordination
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SECTION 10.01. Agreement To Subordinate . . . . . . . 79
SECTION 10.02. Liquidation, Dissolution, Bankruptcy . 79
SECTION 10.03. Default on Senior Indebtedness . . . . 80
SECTION 10.04. Acceleration of Payment of Securities . 81
SECTION 10.05. When Distribution Must Be Paid Over . . 81
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SECTION 10.06. Subrogation . . . . . . . . . . . . . . 81
SECTION 10.07. Relative Rights . . . . . . . . . . . . 82
SECTION 10.08. Subordination May Be Company or any Note
Guarantor . . . . . . . . . . . . . . 82
SECTION 10.09. Rights of Trustee and Paying Agent . . 82
SECTION 10.10. Distribution or Notice to
Representative . . . . . . . . . . . 82
SECTION 10.11. Article 10 Not To Prevent Events of
Default or Limit Right To Accelerate 83
SECTION 10.12. Trust Moneys Not Subordinated . . . . . 83
SECTION 10.13. Trustee Entitled To Rely . . . . . . . 83
SECTION 10.14. Trustee To Effectuate Subordination . . 84
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness . . . . . . . . . 84
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions . . . . . . . . . . . . . 84
ARTICLE 11
Note Guarantees
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SECTION 11.01. Note Guarantees . . . . . . . . . . . . 84
SECTION 11.02. Limitation on Liability . . . . . . . . 86
SECTION 11.03. Successors and Assigns . . . . . . . . 87
SECTION 11.04. No Waiver . . . . . . . . . . . . . . . 87
SECTION 11.05. Modification . . . . . . . . . . . . . 87
SECTION 11.06. Execution of Supplemental Indenture for
Future Note Guarantors . . . . . . . 87
ARTICLE 12
Miscellaneous
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SECTION 12.01. Trust Indenture Act Controls . . . . . 88
SECTION 12.02. Notices . . . . . . . . . . . . . . . . 88
SECTION 12.03. Communication by Holders with Other
Holders . . . . . . . . . . . . . . . 89
SECTION 12.04. Certificate and opinion as to Conditions
Precedent . . . . . . . . . . . . . . 89
SECTION 12.05. Statements Required in Certificate or
Opinion . . . . . . . . . . . . . . . 89
SECTION 12.06. When Securities Disregarded . . . . . . 90
SECTION 12.07. Rules by Trustee, Paying Agent and
Registrar . . . . . . . . . . . . . . 90
SECTION 12.08. Legal Holidays . . . . . . . . . . . . 90
SECTION 12.09. Governing Law . . . . . . . . . . . . . 90
SECTION 12.10. No Recourse Against Others . . . . . . 90
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SECTION 12.11. Successors . . . . . . . . . . . . . . 90
SECTION 12.12. Multiple Originals . . . . . . . . . . 91
SECTION 12.13. Table of Contents; Headings . . . . . . 91
Exhibit A Form of Initial Note
Exhibit B Form of Exchange Note
Exhibit C Form of Transferee Letter of Representation
Exhibit D Form of Supplemental Indenture
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EXECUTED COPY
INDENTURE dated as of June 23, 1995,
among SIX FLAGS THEME PARKS INC., a Delaware
corporation (the "Company"); SIX FLAGS OVER
GEORGIA, INC., a Delaware corporation, SIX
FLAGS OVER TEXAS, INC., a Delaware
corporation, and S.F. Partnership
(collectively, the "Note Guarantors"); and
United States Trust Company of New York, a
New York corporation (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the
Company's 12-1/4% Senior Subordinated Discount Notes due 2005
(the "Initial Notes") and, if and when issued in exchange for
Initial Notes, the Company's 12-1/4% Series A Senior Subordinated
Discount Notes due 2005 (the "Exchange Notes" and, together with
the Initial Notes, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Accreted Value" as of any date of determination prior
to and including June 15, 1998, means the sum of (a) the initial
offering price of the Securities and (b) the portion of the
original issue discount per Security (which for this purpose
shall be deemed to be the excess of the principal amount over the
initial offering price of the Initial Notes) which shall be
amortized with respect to such Security through such date, such
original issue discount to be so amortized at the rate of 12-1/4%
per annum (such percentage being applied to the sum of the
initial offering price plus previously amortized original issue
discount) using semi-annual compounding of such rate on each June
15 and December 15, commencing December 15, 1995, from the date
of issuance of the Initial Notes through the date of
determination.
"Additional Assets" means (i) any property or assets
(other than Indebtedness and Capital Stock) to be used by the
Company or a Restricted Subsidiary in a Related Business; (ii)
the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock
by the Company or another Restricted Subsidiary; or (iii) Capital
Stock constituting a minority interest in any Person that at such
time is a Restricted Subsidiary; provided, however, that, in the
case of clauses (ii) and (iii), such Restricted Subsidiary is
primarily engaged in a Related Business.
"Affiliate" of any specified Person means (i) any other
Person, directly or indirectly, controlling or controlled by or
under direct or indirect common control with such specified
Person or (ii) any Person who is a director or executive officer
(a) of such Person, (b) of any Subsidiary of such Person or (c)
of any Person described in clause (i) above. For the purposes of
this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Sections 4.06 and 4.07 only,
"Affiliate" shall also mean (x) any beneficial owner of shares
representing 5% or more or, for purposes of the definition of
"Affiliate Transaction" as applied in clauses (a) (ii) and (iii)
of Section 4.07, 10% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of the Company or of
rights or warrants to purchase such Voting Stock (whether or not
currently exercisable) and (y) any Person who would be an
Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Amortization Expense" means, for any period, amounts
recognized during such period as amortization of all goodwill and
other assets classified as intangible assets in accordance with
generally accepted accounting principles.
"Approved Time Warner Affiliate" shall mean (a) any
directly or indirectly wholly owned subsidiary of Time Warner
that is organized under the laws of any State of the United
States of America or the District of Columbia; (b) Time Warner
Entertainment or any directly or indirectly wholly owned
subsidiary of Time Warner Entertainment, so long as each of the
following criteria is satisfied: (i) Time Warner and/or one or
more companies controlled by (as defined in the definition of the
term "Affiliate") Time Warner constitute all the managing general
partners of Time Warner Entertainment and there have been no
amendments to Article XII of the Time Warner Entertainment
Partnership Agreement that materially adversely affect the
authority granted to the managing general partners and the Class
B Representatives (as defined in the Time Warner Entertainment
Partnership Agreement) with respect to the ownership or
management of SFEC, (ii) Time Warner owns, directly or
indirectly, a Participating Percentage Share (as defined in the
Time Warner Entertainment Partnership Agreement) of at least
43.75% until December 31, 1997, and of at least 35% thereafter,
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(iii) no person owns, directly or indirectly, a greater interest
in Time Warner Entertainment than that owned, directly or
indirectly, by Time Warner and (iv) the businesses owned by Time
Warner Entertainment include (subject to certain exceptions set
forth in the Time Warner Entertainment Partnership Agreement) the
filmed entertainment business owned by Time Warner Entertainment
and the programming business now owned and operated as the Home
Box Office Division of Time Warner Entertainment; and (c) any
other entity, so long as each of the following criteria is
satisfied: (i) Time Warner owns, directly or indirectly, at least
43.75% of the equity of such entity until December 31, 1997, and
at least 35% thereafter, (ii) no person owns, directly or
indirectly, a greater interest in such entity than that owned,
directly or indirectly, by Time Warner, (iii) the businesses
owned by such entity include the filmed entertainment business
owned by Time Warner Entertainment and the programming business
now owned and operated as the Home Box office Division of Time
Warner Entertainment and (iv) Time Warner and/or one or more
companies controlled by Time Warner exercise control over such
entity comparable to the control currently exercised by Time
Warner over Time Warner Entertainment.
"Asset Disposition" means any sale, lease, transfer or
other disposition (or series of related sales, leases, transfers
or dispositions) of shares of Capital Stock of a Restricted
Subsidiary (other than directors' qualifying shares), property or
other assets (each referred to for the purposes of this
definition as a "disposition") by the Company or any of its
Restricted Subsidiaries (including any disposition by means of a
merger, consolidation or similar transaction) other than (i) a
disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Wholly Owned Subsidiary,
(ii) a disposition of inventory or obsolete property or assets at
fair market value in the ordinary course of business, (iii) the
sale, lease, transfer, assignment or other disposition of assets
of a Co-Venture Subsidiary to the relevant Co-Venture Partnership
pursuant to a Capital Expenditure of a Co-Venture Partnership at
a price and on other terms no less favorable to such Co-Venture
Subsidiary than those upon which such Co-Venture Subsidiary
acquired such assets on behalf of such Co-Venture Partnership,
(iv) transfers of certain real property located in Georgia and
having a value (at cost) not in excess of $2,500,000 by Six Flags
Over Georgia, Inc. to Six Flags Over Georgia, Ltd., in connection
with the extension of the partnership agreement of Six Flags Over
Georgia, Ltd., (v) for purposes of Section 4.06 only, a
disposition subject to Section 4.04 and (vi) the disposition of
all or substantially all the assets of the Company permitted by
Section 5.01.
"Attributable Indebtedness" in respect of a
Sale/Leaseback Transaction means, as at the time of
determination, the present value (discounted at the interest rate
-3-
borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been
extended).
"Average Life" means, as of the date of determination,
with respect to any Indebtedness or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the numbers
of years from the date of determination to the dates of each
successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred
Stock multiplied by the amount of such payment by (ii) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable under
or in respect of the Senior Bank Facility and the other Senior
Bank Documents, as amended, refinanced or replaced from time to
time, including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether
or not a claim for post filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations,
guarantees and all other amounts payable thereunder or in respect
thereof.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized to act on
behalf of such Board.
"Business Day" means a day other than a Saturday,
Sunday or other day on which commercial banks in New York City
are authorized or required by law to close.
"Capital Expenditures" shall mean, for purposes of
Section 4.04, the sum of (a) the aggregate of all expenditures
incurred by the Company and its Restricted Subsidiaries during
such period that, in accordance with GAAP, are or should be
included in "additions to property, plant or equipment" or
similar items reflected in the statement of cash flows of the
Company and its Restricted Subsidiaries and (b) to the extent not
covered by clause (a) above, the aggregate of all expenditures by
the Company and its Restricted Subsidiaries to acquire by
purchase or otherwise the business, property or fixed assets of,
or stock or other evidence of beneficial ownership of, any other
person; provided, however, that the term "Capital Expenditures"
shall not include expenditures of proceeds of insurance
settlements in respect of lost, destroyed or damaged assets,
equipment or other property to the extent such expenditures are
made to replace or repair such lost, destroyed or damaged assets,
equipment or other property within 12 months of receipt of such
proceeds.
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"Capitalized Lease Obligations" of a person means an
obligation that is required to be classified and accounted for as
a capitalized lease for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented
by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated
Maturity thereof shall be the date of the last payment of rent or
any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations
or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.
"Change of Control" means the occurrence of either of
the following events:
(i) (a) the Permitted Holders cease to be the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of, in
the aggregate, 35% or more of the total voting power of
the Voting Stock of the Company, whether as a result of
issuance of securities of the Company, Holdings or
SFEC, as the case may be, any merger, consolidation,
liquidation or dissolution of the Company, Holdings or
SFEC, as the case may be, any direct or indirect
transfer of securities by any Permitted Holder or
otherwise (for purposes of this clause (i), the
Permitted Holders will be deemed to beneficially own
any Voting Stock of a corporation (the "specified
corporation") held by any other corporation (the
"parent corporation") so long as the Permitted Holders
beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the Voting
Stock of the parent corporation)); and (b) any "Person"
(as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted
Holders, is or becomes the beneficial owner (as defined
in clause (a) above, except that a person shall be
deemed to have "beneficial ownership" of all shares
that any such person has the right to acquire, whether
such right is exercisable immediately or only after the
passage of time, unless such right is exercisable only
after the Stated Maturity of the Securities) directly
or indirectly, of a greater percentage of the total
voting power of the Voting Stock of the Company than
the Permitted Holders beneficially own (as defined in
clause (a) above); or
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(ii) the failure of Time Warner and Approved Time
Warner Affiliates to collectively own, directly or
indirectly, at least 20% of the outstanding Voting
Stock of SFEC.
"Code" means the Internal Revenue Code of 1986, as
amended.
Company" means Six Flags Theme Parks Inc. until a
successor replaces it and succeeds to and assumes its obligations
under this Indenture and thereafter means the successor and, for
purposes of any provision contained herein and required by the
TIA, each other obligor on the indenture securities.
"Consolidated Coverage Ratio" as of any date of
determination means the ratio of (i) the aggregate amount of
EBITDA for the period of the most recent four consecutive fiscal
quarters ending at least 45 days prior to the date of such
determination to (ii) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that (1) if the Company or
any Restricted Subsidiary has Incurred any Indebtedness since the
beginning of such period that remains outstanding on such date of
determination or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving effect on a pro
forma basis to such Indebtedness as if such Indebtedness had been
Incurred on the first day of such period and the discharge of any
other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period, (2) if
since the beginning of such period the Company or any Restricted
Subsidiary shall have made any Asset Disposition or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Asset Disposition, the EBITDA for such
period shall be reduced by an amount equal to the EBITDA (if
positive) directly attributable to the assets which are the
subject of such Asset Disposition for such period, or increased
by an amount equal to the EBITDA (if negative), directly
attributable thereto for such period, and Consolidated Interest
Expense for such period shall be reduced by an amount equal to
the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection
with such Asset Disposition for such period (or, if the Capital
Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer
liable for such Indebtedness after such sale), (3) if since the
beginning of such period the Company or any Restricted Subsidiary
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(by merger or otherwise) shall have made an Investment in any
Restricted Subsidiary (or any Person which becomes a Restricted
Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction
causing a calculation to be made hereunder, which constitutes all
or substantially all of an operating unit of a business, EBITDA
and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period, and (4) if
since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition or any Investment
that would have required an adjustment pursuant to clause (2) or
(3) above if made by the Company or a Restricted Subsidiary
during such period, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect
thereto as if such Asset Disposition or Investment occurred on
the first day of such period. For purposes of this definition,
whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto, and
the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest expense on such Indebtedness shall
be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period
(taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining
term as of the date of determination in excess of 12 months).
"Consolidated Interest Expense" means, for any period,
the total interest expense of the Company and its consolidated
Subsidiaries, plus, to the extent Incurred by the Company and its
consolidated Subsidiaries in such period but not included in such
interest expense (i) interest expense attributable to (A)
Capitalized Lease Obligations or (B) obligations for rental
payments in respect of any lease in a Sale/Leaseback Transaction,
(ii) amortization of debt discount and debt issuance cost, (iii)
capitalized interest, (iv) noncash interest expense, (v)
commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(vi) interest actually paid by the Company or any such Subsidiary
under any Guarantee of Indebtedness or other obligation of any
other Person, (vii) net costs associated with Hedging Obligations
(including amortization of fees), (viii) Preferred Stock
dividends in respect of all Preferred Stock of Subsidiaries of
the Company and Disqualified Stock of the Company held by Persons
other than the Company or a Wholly Owned Subsidiary and (ix) the
-7-
cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than
the Company) in connection with Indebtedness Incurred by such
plan or trust; provided, however, that there shall be excluded
therefrom any such interest expense of any Unrestricted
Subsidiary to the extent the related Indebtedness is not
Guaranteed or paid by the Company or any Restricted Subsidiary.
"Consolidated Net Income" means, for any period, the
net income (loss) of the Company and its consolidated
Subsidiaries; provided, however, that there shall not be included
in such Consolidated Net Income:
(i) any net income (loss) of any Person if such
Person is not a Restricted Subsidiary, except that (A)
subject to the limitations contained in clause (iv)
below the Company's equity in the net income of any
such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of
a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause
(iii) below) and (B) the Company's equity in a net loss
of any such Person (other than an Unrestricted
Subsidiary) for such period shall be included in
determining such Consolidated Net Income;
(ii) any net income (loss) of any person acquired
by the Company or a Subsidiary in a pooling of
interests transaction for any period prior to the date
of such acquisition;
(iii) any net income (loss) of any Restricted
Subsidiary if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such
Restricted Subsidiary, directly or indirectly, to the
Company, except that (A) subject to the limitations
contained in (iv) below the Company's equity in the net
income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Net
Income up to the aggregate amount of cash that could
have been distributed by such Restricted Subsidiary
during such period to the Company or another Restricted
Subsidiary as a dividend (subject, in the case of a
dividend that could have been made to another
Restricted Subsidiary, to the limitation contained in
this clause) and (B) the Company's equity in a net loss
of any such Restricted Subsidiary for such period shall
-8-
be included in determining such Consolidated Net
Income;
(iv) any gain (but not loss) realized upon the
sale or other disposition of any property, plant or
equipment of the Company or its consolidated
Subsidiaries (including pursuant to any Sale/Leaseback
Transaction) which is not sold or otherwise disposed of
in the ordinary course of business and any gain (but
not loss) realized upon the sale or other disposition
of any Capital Stock of any Person;
(v) any extraordinary gain or loss; and
(vi) the cumulative effect of a change in
accounting principles.
Notwithstanding the foregoing, for the purposes of Section 4.04
only, there shall be excluded from Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of
assets from Unrestricted Subsidiaries to the Company or a
Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted
pursuant to clause (a)(3)(E) thereof.
"Consolidated Net Worth" means the total of the amounts
shown on the balance sheet of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of
the end of the most recent fiscal quarter of the Company ending
at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par
or stated value of all outstanding Capital Stock of the Company
plus (ii) paid-in capital or capital surplus relating to such
Capital Stock plus (iii) any retained earnings or earned surplus
less (A) any accumulated deficit and (B) any amounts attributable
to Disqualified Stock.
"Co-Venture Partnerships" shall mean Six Flags Over
Georgia, Ltd., a Georgia Limited Partnership and Texas Flags,
Ltd., a Texas Limited Partnership.
"Co-Venture Subsidiaries" shall mean Six Flags Over
Georgia, Inc., a Delaware Corporation, and Six Flags Over Texas,
Inc., a Delaware Corporation.
"Currency Agreement" means in respect of a Person any
foreign exchange contract, currency swap agreement or other
similar agreement as to which such Person is a party or a
beneficiary.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
-9-
"Definitive Securities" means certificated Securities
in the form of Exhibit A or Exhibit B attached hereto that do not
include the Global Securities Legend thereon.
"Depository" means, with respect to the Securities
issuable or issued in whole or in part in global form, The
Depository Trust Company, until a successor shall have been
appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "Depository" shall mean or
include such successor.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness which, at the
date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the
holders thereof are committed to lend up to, at least $25,000,000
and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person,
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 exercisable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise, (ii) is convertible or exchangeable
for Indebtedness or Disqualified Stock or (iii) is redeemable at
the option of the holder thereof, in whole or in part, in each
case on or prior to the first anniversary of the Stated Maturity
of the Securities.
"EBITDA" means, for any period, (a) the sum of (i)
Consolidated Net Income for such period (but without giving
effect to extraordinary losses or gains, any gains or losses from
any Asset Dispositions, any non-cash foreign currency gains or
losses and any other non-cash charges or credits (other than any
non-cash charge to the extent that it requires an accrual of or a
reserve for cash disbursements for any future period)), plus (ii)
the following (to the extent deducted in calculating such
Consolidated Net Income): (A) Federal, state and local income and
franchise taxes, (B) Consolidated Interest Expense, (C)
depreciation expense and (D) Amortization Expense, in each case
for such period, plus (iii) any decrease in the deferred off-
season balance for such period, plus (iv) to the extent that
EBITDA is being calculated for the first or second quarter of any
fiscal year, 1.5% of revenues for the four immediately preceding
quarters, minus (b) any increase in the deferred off-season
balance for such period (it being understood that the treatment
of the Co-Venture Partnerships for purposes of determination of
EBITDA shall at all times remain consistent with the
corresponding treatment of such Co-Venture Partnership as of the
Issue Date, but giving effect to changes in allocation
-10-
percentages that may change from time to time pursuant to
negotiations among the Company or the applicable Co-Venture
Subsidiary and the limited partner or partners of such Co-Venture
Partnership). Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and
amortization of, a Subsidiary of the Company shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and
in the same proportion) that the Net Income of such Subsidiary
was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of
determination to be paid or distributed as a dividend to the
Company by such Subsidiary without prior approval (that has not
been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statuses,
rules and governmental regulations applicable to such Subsidiary
or its stockholders.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect as of the Issue
Date, including those 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 approved by a
significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP as in effect as of the Issue
Date.
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of
such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary
course of business; provided further, that the amount of the
obligations of any Person with respect to an agreement to keep-
well shall be as reasonably determined in good faith by the Board
of Directors of the Company. The term "Guarantee" used as a verb
has a corresponding meaning.
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"Hedging Obligations" of any Person means the
obligations of such Person pursuant to any Interest Rate
Agreement or Currency Agreement.
"Holder" or "Securityholder means the Person in whose
name a Security is registered on the Registrar's books.
"Holdings" means S.F. Holdings, Inc., a Delaware
corporation and the Company's direct parent.
"Incur" means issue, assume, Guarantee, incur or
otherwise become liable for; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time
such person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Subsidiary at the time it becomes a Subsidiary.
"Indebtedness" means, with respect to any Person on any
date of determination (without duplication):
(i) the principal of and premium (if any) in
respect of indebtedness of such Person for borrowed
money;
(ii) the principal of and premium (if any) in
respect of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(iii) all obligations of such Person in
respect of letters of credit or other similar
instruments (including reimbursement obligations with
respect thereto);
(iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or
services (except Trade Payables), which purchase price
is due more than six months after the date of placing
such property in service or taking delivery and title
thereto or the completion of such services;
(v) all Capitalized Lease Obligations and all
Attributable Indebtedness of such Person;
(vi) the amount of all obligations of such Person
with respect to the redemption, repayment or other
repurchase of any Disqualified Stock or, with respect
to any Subsidiary, any Preferred Stock (but excluding,
in each case, any accrued dividends);
(vii) all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;
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provided, however, that the amount of Indebtedness of
such Person shall be the lesser of (A) the fair market
value of such asset at such date of determination and
(B) the amount of such Indebtedness of such other
Persons;
(viii) all Indebtedness of other Persons to the
extent Guaranteed by such Person; and
(ix) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
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.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Interest Rate Agreement" means with respect to any
Person any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar
agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary
course of business that are recorded as accounts receivable on
the balance sheet of such Person) or other extension of credit
(including by way of Guarantee or similar arrangement) or capital
contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for
the account or use of others), or any purchase or acquisition of
Capital Stock, Indebtedness or other similar instruments issued
by such Person. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.04, (i) "Investment" shall include the
portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company.at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that
upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount
(if positive) equal to (x) the Company's "Investment" in such
Subsidiary at the time of such redesignation less (y) the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and (ii) any
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property transferred to or from an Unrestricted Subsidiary shall
be valued at its fair market value at the time of such transfer,
in each case as determined in good faith by the Board of
Directors.
"Issue Date" means the date on which the Initial Notes
are originally issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any
conditional sale or other title retention agreement or lease in
the nature thereof).
"Net Available Cash" from an Asset Disposition means
cash payments received (including any cash payments received by
way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and any cash realized upon
the conversion into cash by the Company or any Restricted
Subsidiary of any securities received by the Company or any
Restricted Subsidiary from the transferee in connection with an
Asset Disposition, in either case only as and when received, but
excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other
obligations relating to the properties or assets that are the
subject of such Asset Disposition or received in any other
noncash form) therefrom, in each case net of (i) all legal, title
and recording tax expenses, commissions and other fees and
expenses Incurred, and all Federal, state, provincial, foreign
and local taxes required or estimated in good faith to be
required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (ii) all payments made on
any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon
such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law
be repaid out of the proceeds from such Asset Disposition, (iii)
all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition and (iv) the deduction of
appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the
assets disposed of in such Asset Disposition and retained by the
Company or any Restricted Subsidiary after such Asset
Disposition.
"Net Cash Proceeds" means, with respect to any issuance
or sale of Capital Stock, the cash proceeds of such issuance or
sale net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually Incurred in connection with
such issuance or sale and net of taxes paid or payable as a
result thereof.
-14-
"Non-Recourse Indebtedness" means Indebtedness (a) as
to which neither the Company nor any of its Restricted
Subsidiaries (i) provides credit support (including any
undertaking, agreement or instrument which would constitute
Indebtedness), (ii) is directly or indirectly liable or (iii)
constitutes the lender and (b) no default with respect to which
(including any rights which the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any Restricted Subsidiary to
declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its Stated
Maturity.
"Note Guarantee" means any guarantee which may from
time to time be executed and delivered by a Subsidiary of the
Company pursuant to the terms of this Indenture. Each such Note
Guarantee will be in the form prescribed in this Indenture.
"Note Guarantor" means the parties named as such in
this Indenture and any other Subsidiary that has issued a Note
Guarantee, until a successor replaces it and thereafter, means
such successor.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the Secretary of
the Company or the Note Guarantors, as applicable.
"Officers' Certificate" means a certificate signed by
two Officers.
"Opinion of Counsel" means a written opinion from legal
counsel which and who is acceptable to the Trustee. The counsel
may be an employee of or counsel to the Company or the Trustee.
An Opinion of Counsel may assume compliance with or satisfaction
of any financial tests, factual conditions or factual
requirements that may relate to the subject matter of such
opinion, and may state that as to factual matters counsel
rendering such opinion has relied without independent
investigation on statements contained in any Officers'
Certificate required to be delivered to the Trustee under this
Indenture or in such other officer's certificate as such counsel
may deem appropriate in connection with rendering such Opinion of
Counsel.
"Permitted Holders" means Time Warner (or any
successor, by spin-off or other corporate reorganization, to all
or substantially all of the business of Time Warner and its
wholly-owned subsidiaries) and each of Time Warner Entertainment,
Boston Ventures Limited Partnership IV, Boston Ventures Limited
Partnership IVA, Aetna Casualty and Surety Company, BancBoston
Capital Inc., Brinson Partners, Inc., Chemical Equity Associates,
-15-
Macfadden Publishing, Inc. and Westpool Investment Trust PLC, or
any Person, directly or indirectly, controlling or controlled by
or under common control with any of the foregoing Persons.
"Permitted Investment" means an Investment by the
Company or any Restricted Subsidiary in (i) a Restricted
Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary; provided, however,
that the primary business of such Restricted Subsidiary is a
Related Business; (ii) another Person if as a result of such
Investment such other Person is merged or consolidated with or
into, or transfers or conveys all or substantially all its assets
to, the Company or a Restricted Subsidiary; provided, however,
that such Person's primary business is a Related Business; (iii)
Temporary Cash Investments; (iv) receivables owing to the Company
or any Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as
the Company or any such Restricted Subsidiary deems reasonable
under the circumstances; (v) payroll, travel and similar advances
to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business; (vi) loans or
advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Restricted
Subsidiary; (vii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business
and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments; and (viii) Capital Stock of a
Permitted Joint Venture Entity, provided that the maximum amount
of all Investments in Permitted Joint Venture Entities made
subsequent to the Issue Date shall not exceed $50,000,000, and
provided further, however, that any subsequent issuance or
transfer of any Capital Stock or any other event which results in
any such Permitted Joint Venture Entity ceasing to be a Permitted
Joint Venture Entity shall be deemed, in each case, to constitute
the making of an Investment by the Company or applicable
Restricted Subsidiary.
"Permitted Joint Venture Entity" means a Person other
than a Subsidiary of the Company if, immediately after giving
effect to the Investment by the Company or a Restricted
Subsidiary in such Person and for so long as the Company,
directly or indirectly, shall hold such Investment (i) such
Person is engaged in, or is being organized for the purpose of
engaging in, the business of owning, operating or supplying
equipment or services to amusement or theme parks, (ii) such
Person is not a Subsidiary of any other Person, no person (as
such term is used in Sections 13(d) and 14(d) of the Exchange
Act) owns, directly or indirectly, a percentage of the Capital
Stock or Voting Stock of such Person greater than the percentage
-16-
thereof owned, directly or indirectly, by the Company, (iv) no
class or series of the Capital Stock of such Person has a
preference as to distributions or upon liquidation over the class
or series of Capital Stock held, directly or indirectly, by the
Company, (v) the governing or constitutive documents of such
Person (the "Governing Documents") provide that all shares or
units of the class or series of Capital Stock held, directly or
indirectly, by the Company are entitled to share equally and
ratably with all other shares or units of such class or series in
respect of distributions from such Person and upon liquidation
thereof, and the Company or one or more of its Restricted
Subsidiaries is entitled to receive at least annually
distributions from such Person in accordance with the Governing
Documents, and (vi) the Governing Documents of such Person may
not be amended without the consent or approval of the Company (or
the Restricted Subsidiary or Restricted Subsidiaries of the
Company that hold or holds such Capital Stock). The foregoing
notwithstanding, a Person shall not be a Permitted Joint Venture
Entity for any purpose unless, within 30 days following the later
of (x) the date of the initial Investment in such Person by the
Company or a Restricted Subsidiary of the Company, or (y) the
date as of which the Company or a Restricted Subsidiary of the
Company wish to have such Investment first treated as an
Investment in a Permitted Joint Venture Entity, the Company shall
have caused to be delivered to the Trustee an officers'
Certificate to the effect set forth in clauses (i), (ii) and
(iii) of the preceding sentence and an Opinion of Counsel to the
effect set forth in clauses (iv), (v) and (vi) of the preceding
sentence.
"Permitted Liens" means, with respect to any Person,
(a) pledges or deposits by such Person under workmen's
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness)
or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits or
cash or United States government bonds to secure surety or appeal
bonds to which such Person is a party, or deposits as security
for contested taxes or import duties or for the payment of rent,
in each case Incurred in the ordinary course of business; (b)
Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with
----
respect to which such Person shall then be proceeding with an
appeal or other proceedings for review; (c) Liens for property
taxes not yet due or payable or subject to penalties for
nonpayment and which are being contested in good faith by
appropriate proceedings; (d) Liens in favor of issuers of surety
bonds or letters of credit issued pursuant to the request of and
for the account of such Person in the ordinary course of its
-17-
business; (e) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses,
rights of way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions
as to the use of real properties or Liens incidental to the
conduct of the business of such Person Dr to the ownership of its
properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially
impair their use in the operation of the business of such Person;
(f) Liens existing on the Issue Date; (g) Liens on property or
shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, that such Liens are not created,
incurred or assumed in connection with, or in contemplation of,
such other Person becoming a Subsidiary; provided further,
however, that any such Lien may not extend to any other property
owned by the Company or any Restricted Subsidiary; (h) Liens on
property at the time the Company or a Subsidiary acquired the
property, including any acquisition by means of a merger or
consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that such Liens are not created,
incurred or assumed in connection with, or in contemplation of,
such acquisition; provided further, however, that such Liens may
not extend to any other property owned by the Company or any
Restricted Subsidiary; (i) Liens securing Indebtedness or other
obligations of a Subsidiary owing to the Company or a Wholly
Owned Subsidiary; (j) Liens securing Hedging Obligations so long
as the related Indebtedness is, and is permitted to be under this
Indenture, secured by a Lien on the same property securing such
Hedging Obligations; (k) Liens securing Senior Indebtedness; (1)
Liens to secure the payment of all or a part of the purchase
price of, or Capitalized Lease Obligations with respect to,
assets or property acquired or constructed after the Issue Date;
provided, however, that (i) the Indebtedness secured by such
Liens is otherwise permitted to be Incurred under this Indenture,
(ii) such Liens only extend to or cover such acquired or
constructed property and do not encumber any other assets or
property of the Company or any Restricted Subsidiary, (iii) such
Liens are created within 180 days of construction or acquisition
of such assets or property, (iv) the principal amount of any
Indebtedness secured by any such Lien does not exceed the cost of
assets or property so acquired or constructed and (v) the amount
of Indebtedness secured by any such Lien is not subsequently
increased; (m) Liens not giving rise to any Event of Default
arising by reason of any judgment, decree or order of any court
or arbitrator, so long as such judgment, decree or order is being
contested in good faith and any appropriate legal proceedings
which may have been duly initiated for the review of such
judgment, decree or order will not have been finally terminated
and the period within which such proceedings may be initiated
will not have expired; (n) Liens restricting the ability of a Co-
Venture Subsidiary to transfer or otherwise dispose of general
-18-
partnership interests in a Co-Venture Partnership pursuant to an
agreement between the Company (or applicable Co-Venture
Subsidiary) and the limited partner or partners of a Co-Venture
Partnership; and (o) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings,
refundings, extensions, renewals or replacements) as a whole, or
in part, of any Indebtedness secured by any Lien referred to in
the foregoing clauses (f), (g), (h) and (1); provided, however,
that (x) such new Lien shall be limited to all or part of the
same property that secured the original Lien (plus improvements
on such property) and (y) the Indebtedness secured by such Lien
at such time is not increased to any amount greater than the sum
of (A) the outstanding principal amount or, if greater, committed
amount of the Indebtedness described under clauses (f), (g), (h)
and (1) at the time the original Lien became a Permitted Lien
under this Indenture and (B) an amount necessary to pay any fees
and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement. Notwithstanding
the foregoing, "Permitted Liens" will not include any Lien
described in clauses (g) and (h) above if such Lien applies to
any Additional Assets acquired directly or indirectly from Net
Available Cash pursuant to Section 4.06.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of
any corporation, means Capital Stock of any class or classes
(however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such corporation,
over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the
Security payable at its Stated Maturity plus the premium, if any,
payable on the Security which is due or overdue or is to become
due at the relevant time.
"Public Equity Offering" means an underwritten primary
public offering of common stock (or other voting stock) of the
Company, Holdings or SFEC pursuant to an effective registration
statement (other than a registration statement on Form S-4, S-8
or any successor or similar forms) under the Securities Act.
"Public Market" means any time after (x) a Public
Equity Offering has been consummated and (y) at least 15% of the
total issued and outstanding common stock of the Company,
Holdings or SFEC (as applicable) has been distributed by means of
-19-
an effective registration statement under the Securities Act or
sales pursuant to Rule 144 under the Securities Act.
"Qualified SFEC Replacement Notes" means any notes or
debentures of SFEC Incurred to refinance the Zero Coupon Notes;
provided, that Qualified SFEC Replacement Notes shall not include
--------
any notes or debentures Incurred in excess of the principal
amount (or if issued with original issue discount, an aggregate
issue price) required to refinance the Zero Coupon Notes
(including payment by SFEC of reasonable and customary fees and
expenses (including underwriting fees, discounts and commissions)
incurred in connection therewith) at such time as the Zero Coupon
Notes are refinanced.
"Registered Exchange Offer" shall have the meaning set
forth in the Registration Rights Agreement.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated June 23, 1995 among the
Company, the Note Guarantors and Chemical Securities Inc.
"Refinancing Indebtedness" means Indebtedness that
refunds, refinances, replaces, renews, repays or extends
(including pursuant to any defeasance or discharge mechanism)
(collectively, "refinances", and "refinanced" shall have a
correlative meaning) any Indebtedness existing on the date of
this Indenture or Incurred in compliance with this Indenture
(including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary (to the extent
permitted by this Indenture) and Indebtedness of any Restricted
Subsidiary that refinances Indebtedness of another Restricted
Subsidiary (to the extent permitted by this Indenture)) including
Indebtedness that refinances Refinancing Indebtedness; provided,
however, that (i) the Refinancing Indebtedness has a Stated
Maturity no earlier than the Stated Maturity of the Indebtedness
being refinanced, (ii) the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the
Indebtedness being refinanced and (iii) such Refinancing
Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or
if issued with original issue discount, the aggregate accreted
value) then outstanding of the Indebtedness being refinanced;
provided further, however, that Refinancing Indebtedness shall
not include (x) Indebtedness of a Subsidiary that refinances
Indebtedness of the Company or (y) Indebtedness of the Company or
a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
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"Related Business" means any business related,
ancillary or complementary to the businesses of the Company and
the Restricted Subsidiaries on the date of this Indenture.
"Representative" means the trustee, agent or
representative (if any) for an issue of Senior Indebtedness.
"Restricted Subsidiary" means any Subsidiary of the
Company other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement
relating to property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such property to a
Person and the Company or a Restricted Subsidiary leases it from
such Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Notes
and, when and if issued as provided in the Registration Rights
Agreement, the Exchange Notes.
"Securities Custodian" means the custodian with respect
to the Global Security (as appointed by the Depository), or any
successor entity thereto and shall initially be the Trustee.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Bank Facility" means the $600,000,000 senior
secured credit facility among the Company, the financial
institutions party thereto and Chemical Bank, as agent for such
financial institutions, as such facility is in effect on the
Issue Date.
"Senior Bank Documents" means the collective reference
to the Senior Bank Facility, the notes issued pursuant thereto
and the Guarantees thereof and the Security Documents, the
Indemnity, Subrogation and Contribution Agreement and the Pledge
Agreement (each as defined in the Senior Bank Facility and as in
effect on the Issue Date).
"Senior Indebtedness" means all Indebtedness of the
Company, including interest and fees thereon, whether outstanding
on the Issue Date or thereafter Incurred, unless in the
instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such obligations are
not superior in right of payment to the Securities; provided,
however, that Senior Indebtedness shall not include (1) any
obligation of the Company to any Subsidiary, (2) any liability
for Federal, state, local or other taxes owed or owing by the
Company, (3) any accounts payable or other liability to trade
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creditors arising in the ordinary course of business (including
Guarantees thereof or instruments evidencing such liabilities),
(4) any Indebtedness or obligation of the Company which is
expressly subordinate or junior in any respect to any other
Indebtedness or obligation of the Company, including any Senior
Subordinated Indebtedness and any Subordinated Obligations, (5)
any obligations in respect of any Capital Stock, or (6) any
Indebtedness Incurred in violation of this Indenture. Senior
Indebtedness of any Note Guarantor shall have a correlative
meaning.
"Senior Subordinated Indebtedness" means the Securities
and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to rank pari passu with the
Securities and is not subordinated by its terms to any
Indebtedness or other obligation of the Company which is not
Senior Indebtedness.
"SFEC" means Six Flags Entertainment Corporation, a
Delaware corporation, and the Company's indirect parent.
"S.F. Partnership" means the general partnership
between the Company and SFTP Inc., a Subsidiary of the Company,
which partnership, as of the Issue Date, owns a substantial
portion of the assets of the Company's theme parks located in
California, Missouri and New Jersey.
"Shelf Registration Statement" has the meaning given to
that term in the Registration Rights Agreement.
"Significant Subsidiary" means (i) any domestic
Subsidiary of the Company which at the time of determination
either (A) had assets which, as of the date of the Company's most
recent quarterly consolidated balance sheet, constituted at least
5% of the Company's total assets on a consolidated basis as of
such date, or (B) had revenues for the 12-month period ending on
the date of the Company's most recent quarterly consolidated
statement of income which constituted at least 5% of the
Company's total revenues on a consolidated basis for such period,
(ii) any foreign Subsidiary of the Company which at the time of
determination either (A) had assets which, as of the date of the
Company's most recent quarterly consolidated balance sheet,
constituted at least 5% of the Company's total assets on a
consolidated basis as of such date, in each case determined in
accordance with generally accepted accounting principles, or (B)
had revenues for the 12-month period ending on the date of the
Company's most recent quarterly consolidated statement of income
which constituted at least 5% of the Company's total revenues on
a consolidated basis for such period, or (iii) any Subsidiary of
the Company which, if merged with all Defaulting Subsidiaries of
the Company, would at the time of determination either (A) have
had assets which, as of the date of the Company's most recent
-22-
quarterly consolidated balance sheet, would have constituted at
least 10% of the Company's total assets on a consolidated basis
as of such date or (B) have had revenues for the 12-month period
ending on the date of the Company's most recent quarterly
consolidated statement of income which would have constituted at
least 10% of the Company's total revenues on a consolidated basis
for such period (each such determination being made in accordance
with generally accepted accounting principles). "Defaulting
Subsidiary" means any Subsidiary of the Company with respect to
which a Default has occurred.
"Stated Maturity" means, with respect to any security,
the date specified in such security as the fixed date on which
the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening
of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to
the Securities pursuant to a written agreement.
"Subsidiary" of any Person means any corporation,
association, partnership or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such
Person or (iii) one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the
following: (i) any Investment in direct obligations of the United
States of America or any agency thereof or obligations Guaranteed
by the United States of America or any agency thereof, (ii)
Investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United
States of America having capital, surplus and undivided profits
aggregating in excess of $300,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt is rated "All (or
such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organized (as defined in
Rule 436 under the Securities Act), (iii) 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 a
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bank meeting the qualifications described in clause (ii) above,
(iv) Investments in commercial paper, maturing not more than six
months after the date of acquisition, issued by a corporation
(other than an Affiliate of the Company) organized and in
existence under the laws of the United States of America or any
foreign country recognized by the United States of America with a
rating at the time as of which any investment therein is made of
"P-111 (or higher) according to Moody's Investors Service, Inc.
or "A-1" (or higher) according to Standard and Poor's
Corporation, and (v) Investments in securities with maturities of
six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by Standard & Poor's
Corporation or "All by Moody's Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
(Section) 77aaa-77bbbb) as in effect on the date of this
Indenture.
"Time Warner" means Time Warner Inc., a Delaware
corporation.
"Time Warner Entertainment" means Time Warner
Entertainment Company, L.P., a Delaware limited partnership.
"Time Warner Entertainment Partnership Agreement" means
the Agreement dated as of October 29, 1991, among C. Itoh & Co.,
Ltd., a Japanese corporation, Toshiba Corporation, a Japanese
corporation, Time Warner, Home Box Office, Inc., a Delaware
corporation, Warner Bros. Inc., a Delaware corporation, Warner
Cable Communications Inc., a Delaware corporation, and Warner
Communications Inc., a Delaware corporation, as amended.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to
trade creditors created, assumed or Guaranteed by such Person
arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Transfer Restricted Securities" means Securities that
bear or are required to bear the legend set forth in Section 2.06
hereof.
"Trustee" means the party named as such in this
Indenture until a successor replaces it and, thereafter, means
the successor.
"Trust officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Division (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
-24-
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 knowledge of and familiarity with the particular
subject.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of
the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any
Capital Stock or Indebtedness of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to
be so designated has total consolidated assets of $1,000 or less
or (B) if such Subsidiary has consolidated assets greater than
$1,000, then such designation would be permitted under the
provisions of Section 4.04. The Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that immediately after giving effect to such
designation (x) the Company could Incur $1.00 of additional
Indebtedness under Section 4.03(a) and (y) no Default shall have
occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations
(or certificates representing an ownership interest in such
obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged
and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a corporation means all classes of
Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary
of the Company, all the Capital Stock of which (other than
-25-
directors' qualifying shares) is owned by the Company or another
Wholly Owned Subsidiary.
"Zero Coupon Notes" means the Zero Coupon Senior Notes
of SFEC due December 19, 1999.
SECTION 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- ----------
"Affiliate Transaction" . . . . . . . . . . . 4.07
"Agent Members" . . . . . . . . . . . . . . . 2.01(b)
"Bankruptcy Law" . . . . . . . . . . . . . . 6.01
"Blockage Notice" . . . . . . . . . . . . . . 10.03
"covenant defeasance option" . . . . . . . . 8.01(b)
"Custodian" . . . . . . . . . . . . . . . . . 6.01
"Domestic Corporation" . . . . . . . . . . . 5.01
"Event of Default" . . . . . . . . . . . . . 6.01
"Global Security" . . . . . . . . . . . . . . 2.01(a)
"legal defeasance option" . . . . . . . . . . 8.01(b)
"Legal Holiday" . . . . . . . . . . . . . . . 12.08
"Non Global Purchaser" . . . . . . . . . . . 2.01(c)
"Obligations" . . . . . . . . . . . . . . . . 11.01
"Offer" . . . . . . . . . . . . . . . . . . . 4.06(b)
"Offer Amount" . . . . . . . . . . . . . . . 4.06(c)
"Offer Period" . . . . . . . . . . . . . . . 4.06(c)
"pay the Securities" . . . . . . . . . . . . 10.03
"Paying Agent" . . . . . . . . . . . . . . . 2.03(a)
"Payment Blockage Period" . . . . . . . . . . 10.03
"Purchase Agreement" . . . . . . . . . . . . 2.01(a)
"Purchase Date" . . . . . . . . . . . . . . . 4.06(c)
"QIB" . . . . . . . . . . . . . . . . . . . . 2.01(a)
"Registrar" . . . . . . . . . . . . . . . . . 2.03
"Restricted Payment" . . . . . . . . . . . . 4.04
"Rule 144A" . . . . . . . . . . . . . . . . . 2.01(a)
"Scheduled Amount" . . . . . . . . . . . . . 4.03(b)
"Successor Company" . . . . . . . . . . . . . 5.01
SECTION 1.03. Incorporation by Reference of Trust
-----------------------------------
Indenture Act. This Indenture is subject to the mandatory
---------
provisions of the TIA which are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
-26-
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Company
and any other obligor on the indenture 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 have the meanings assigned to them by such
definitions.
SECTION 1.04. 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;
(4) "including" means including without
limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to
be subordinate or junior to secured Indebtedness merely
by virtue of its nature as unsecured Indebtedness;
(7) the principal amount of any noninterest
bearing or other discount security at any date shall be
the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in
accordance with GAAP and accretion of principal on such
security shall be deemed to be the Incurrence of
Indebtedness; and
(8) the principal amount of any Preferred Stock
shall be (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
-27-
ARTICLE 2
The Securities
--------------
SECTION 2.01. Form and Dating. The Initial Notes and
---------------
the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The
Exchange Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit B, which is hereby
incorporated by reference and expressly made a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any
----
such notation, legend or endorsement is in a form acceptable to
the Company). A copy of any such legends, notations or
endorsements shall be furnished to the Trustee in writing. Each
Security shall be dated the date of its authentication. The
terms of the Securities set forth in Exhibit A and Exhibit B are
part of the terms of this Indenture.
(a) Global Securities. The Initial Notes are being
-----------------
offered and sold by the Company pursuant to a Purchase Agreement,
dated June 16, 1995, among the Company, the Note Guarantors and
Chemical Securities Inc. (the "Purchase Agreement").
Initial Notes in the form of Exhibit A hereto and the
Exchange Notes in the form of Exhibit B hereto shall be issued
initially in the form of one or more permanent global Securities
in definitive, fully registered form without interest coupons,
with the Global Securities Legend and, in the case of the Initial
Notes, the Restricted Securities Legend, as set forth in such
Exhibits (each, a "Global Security"), which shall be deposited on
behalf of the purchasers of the Initial Notes and the Exchange
Notes, as the case may be, represented thereby with the Trustee,
at its New York office, as custodian for the Depository, and
registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount
of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee and
the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.01(b) shall
---------------------
apply only to the Global Security deposited with or on behalf of
the Depository.
The Company shall execute and the Trustee shall, upon
receipt of an Officers' Certificate, in accordance with this
Section 2.01(b) and Section 2.02, authenticate and deliver
initially one or more Global Securities that (a) shall be
-28-
registered in the name of the Depository for such Global Security
or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant
to such Depository's instructions or held by the Trustee as
custodian for the Depository.
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
by the Trustee as the custodian of the Depository or under such
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 such 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 of such Depository governing the
exercise of the rights of.a holder of a beneficial interest in
any Global Security.
(c) Certificated Securities. Except as provided in
-----------------------
Section 2.06(f) and 2.09, owners of beneficial interests in
Global Securities will not be entitled to receive physical
delivery of Definitive Securities.
SECTION 2.02. Execution and Authentication. Two
----------------------------
Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be impressed,
affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee authenticates
the Security, the Security shall be valid nevertheless.
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.
The Trustee shall authenticate and deliver: (1) Initial
Notes for original issue in an aggregate principal amount of
$285,000,000 and (2) Exchange Notes for issue only in a
Registered Exchange Offer, pursuant to the Registration Rights
Agreement, for Initial Notes for a like principal amount of
Initial Notes exchanged pursuant thereto, in each case upon a
written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company. Such order shall specify the amount of
-29-
the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated and whether
the Securities are to be Initial Notes or Exchange Notes and
whether or not such notes shall bear the Restricted Securities
Legend (and if not, confirmation that a registration statement
with respect to such notes has been declared effective by the
Commission). The aggregate principal amount of Securities
outstanding at any time may not exceed that amount except as
provided in Section 2.07.
The Trustee may appoint (at the expense of the Company)
an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Unless limited by the terms of such
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 any
Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03. Registrar and Paying Agent. The Company
--------------------------
shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be
presented for payment (the "Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and
exchange. The Company may have one or more additional paying
agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this
Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or transfer agent.
The Company initially appoints the Trustee as Registrar
and Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust.
-----------------------------------
Prior to each due date of the principal (or Accreted Value, as
the case may be) of and any liquidated damages and interest on
any Security, the Company shall deposit with the Paying Agent a
sum sufficient to pay such principal (or Accreted Value, as the
case may be), any liquidated damages and interest when so
becoming due. The Company shall require each Paying Agent (other
-30-
than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Securityholders or the Trustee
all money held by the Paying Agent for the payment of principal
(or Accreted Value, as the case may be) of or any liquidated
damages or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment.
If the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
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
Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. (a) Transfer
--------------------- --------
and Exchange of Definitive Securities. When Definitive
-------------------------------------
Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are
met; provided, however, that the Definitive Securities
-------- -------
surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar or
coregistrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted Securities
that are Definitive Securities, are being transferred
or exchanged pursuant to an effective registration
statement under the Securities Act or pursuant to
clause (A), (B) or (C) below, and are accompanied by
-31-
the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Securities
are 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 the form set forth on the
reverse of the Security); or
(B) if such Transfer Restricted Securities
are being transferred to the Company or to a QIB
in accordance with Rule 144A under the Securities
Act, a certification to that effect (in the form
set forth on the reverse of the Security); or
(C) if such Transfer Restricted Securities
are being transferred (w) pursuant to an exemption
from registration in accordance with Rule 144 or
Regulation S under the Securities Act; or (x) to
an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act that is acquiring the security
for its own account, or for the account of such an
institutional accredited investor, in each case in
a minimum principal amount of the Securities of
$250,000 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; or (y) in reliance on another exemption from
the registration requirements of the Securities
Act: (i) a certification to that effect (in the
form set forth on the reverse of the Security),
(ii) if the Company or Registrar so requests, an
Opinion of Counsel, certifications and/or other
information reasonably acceptable to the Company
and to the Registrar to the effect that such
transfer is in compliance with the Securities Act
and (iii) in the case of clause (x), a signed
letter substantially in the form of Exhibit C
hereto.
(b) Restrictions on Transfer of a Definitive Security
-------------------------------------------------
for a Beneficial Interest in a Global Security. A Definitive
----------------------------------------------
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 Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer
Restricted Security, certification, in the form set forth on
-32-
the reverse of the Security, that such Definitive Security
is being transferred to a QIB in accordance with Rule 144A
under the Securities Act; and
(ii) whether or not such Definitive Security is a
Transfer Restricted Security, written instructions directing
the Trustee to make, or to direct the Securities Custodian
to make, an adjustment on its books and records with respect
to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by
the Global Security,
then the Trustee shall cancel such Definitive Security and cause,
or direct the Securities Custodian to cause, in accordance with
the standing instructions and procedures existing between the
Depository and the Securities Custodian, the aggregate principal
amount of Securities represented by the Global Security to be
increased accordingly. If no Global Securities are then
outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities. The
------------------------------------------
transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depository, in
accordance with this Indenture (including applicable restrictions
on transfer set forth herein, if any) and the procedures of the
Depository therefor.
(d) Transfer of a Beneficial Interest in a Global
---------------------------------------------
Security for a Definitive Security.
----------------------------------
(i) Subject to Section 2.01(c) any person having a
beneficial interest in a Global Security that is being
transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant
to clause (A),(B) or (C) below may upon request, and if
accompanied by the information specified below, exchange
such beneficial interest for a Definitive Security of the
same aggregate principal amount. Upon receipt by the
Trustee of written instructions or such other form
of.instructions as is customary for the Depository from the
Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Security and upon receipt by
the Trustee of a written order or such other form of
instructions as is customary for the Depository or the
Person designated by the Depository as having such a
beneficial interest in a Transfer Restricted Security only,
the following additional information and documents (all of
which may be submitted by facsimile);
-33-
(A) if such beneficial interest is being
transferred to the Person designated by the Depository
as being the owner of a beneficial interest in a Global
Security, a certification from such Person to that
effect (in the form set forth on the reverse of the
Security); or
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certification to that effect (in
the form set forth on the reverse of the Security); or
(C) if such beneficial interest is being
transferred (w) pursuant to an exemption from
registration in accordance with Rule 144 or Regulation
S under the Securities Act; or (x) to an institutional
"accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act
that is acquiring the security for its own account, or
for the account of such an institutional accredited
investor, in each case in a minimum principal amount of
the Securities of $250,000 for investment purposes and
not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities;
or (y) in reliance on another exemption from the
registration requirements of the Securities Act: (i) a
certification to that effect from the transferee or
transferor (in the form set forth on the reverse of the
Security), (ii) if the Company or Registrar so
requests, an opinion of Counsel, certifications and/or
other information from the transferee or transferor
reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in
compliance with the Securities Act, and (iii) in the
case of clause (x), a signed letter in the form of
Exhibit C hereto;
then the Trustee or the Securities Custodian, at the direction of
the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depository and
the Securities Custodian, the aggregate principal amount of the
Global Security to be reduced on its books and records and,
following such reduction, the Company will execute and the
Trustee will authenticate and deliver to the transferee a
Definitive Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section
2.06(d) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Definitive
-34-
Securities to the persons in whose names such Securities are so
registered in accordance with the instructions of the Depository.
(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 2.06), a Global Security may not be transferred
as a whole except 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 or by the Depository or any
such nominee to a successor Depository or a nominee of such
successor Depository.
(f) Authentication of Definitive Securities. If at
---------------------------------------
any time:
(i) the Depository notifies the Company that the
Depository is unwilling or unable to continue as Depository
for the Global Securities and a successor Depository for the
Global Securities is not appointed by the Company within 90
days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of
Definitive Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of a
written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company requesting the authentication and
delivery of Definitive Securities to the Persons designated by
the Company, will authenticate and deliver Definitive Securities,
in an aggregate principal amount equal to the principal amount of
Global Securities, in exchange for such Global Securities.
(g) Legend.
------
(i) Except as permitted by the following
paragraph (ii), each Security certificate evidencing
the Global Securities and the Definitive Securities
(and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
-35-
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH
IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY)I ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER 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 UNDER
THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, 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, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE IS
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D)i (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE
FOREGOING CLAUSES (A)-(F), A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER,AFTER THE RESALE RESTRICTION TERMINATION
DATE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Security) pursuant to Rule 144 under
the Securities Act or an effective registration statement
under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Security, the Registrar
shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Security
that does not bear the legend set forth above and
rescind any restriction on the transfer of such
Transfer Restricted Security; and
-36-
(B) any such Transfer Restricted Security
represented by a Global Security shall not be subject
to the provisions set forth in clause (i) of this
Section 2.06(g) (such sales or transfers being subject
only to the provisions of Section 2.06(e) hereof);
provided, however, that with respect to any request for
-------- -------
an exchange of a Transfer Restricted Security that is
represented by a Global Security for a Definitive
Security that does not bear a legend, which request is
made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such
certification to be in the form set forth on the
reverse of the Security).
(h) Cancellation or Adjustment of Global Security. At
---------------------------------------------
such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed,
repurchased or canceled, such Global Security shall be returned
to the Depository for cancellation or retained and canceled by
the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for
Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global
Security shall be reduced and an adjustment shall be made on the
books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect
such reduction.
(i) Obligations with Respect to Transfers and
-----------------------------------------
Exchanges of Securities.
-----------------------
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Definitive Securities and Global Securities at
the Registrar's or co-registrar's request.
(ii) 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, assessments, or similar governmental charge payable in
connection therewith.
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of (a) any
Definitive Security selected for redemption in whole or in
part pursuant to Article III, except the unredeemed portion
of any Definitive Security being redeemed in part, or (b)
any Security for a period beginning 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem
-37-
Securities or 15 Business Days before an interest payment
date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the
Paying Agent, the Registrar or any coregistrar may deem and
treat the person in whose name a Security is registered as
the absolute owner of such Security for the purpose of
receiving payment of principal (or Accreted Value, as the
case may be) of and any liquidated damages and interest on
such Security and for all other purposes whatsoever, whether
or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-
registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or
exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
(j) No Obligation of the Trustee. (i) The Trustee
----------------------------
shall have no responsibility or obligation to any beneficial
owner of a Global Security, a member of, or a participant in the
Depository or other Person with respect to the accuracy of the
records of the Depository or its nominee or of any participant or
member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption) or
the payment of any amount, under or with respect to such
Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the
Securities shall be given or made only to or upon the order of
the registered Holders (which shall be the Depository or its
nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only
through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be
fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
state or federal securities laws or any restrictions on
transfer imposed under this Indenture or under applicable
law with respect to any transfer of any interest in any
Security (including any transfers between or among
Depository participants, members or beneficial owners in any
Global Security) other than (to the extent the Securities
are held in definitive or certificated form, but not with
-38-
respect to any Global Security) to require delivery of such
certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.07. Replacement Securities. If a mutilated
----------------------
Security is surrendered to the Registrar 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 shall
authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Company, such Holder
shall furnish an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge the Holder for their expenses
in replacing a Security.
Every replacement Security is an additional obligation
of the Company.
SECTION 2.08. Outstanding Securities. Securities
----------------------
outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it
for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Security is
held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity
date money sufficient to pay all principal (or Accreted Value, as
the case may be) and any liquidated damages and interest payable
on that date with respect to the Securities (or portions thereof)
to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this
Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Temporary Securities. (a) Until
--------------------
Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities.
-39-
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 Definitive Securities and deliver them in
exchange for temporary Securities.
(b) A Global Security deposited with the Depository or
with the Trustee as custodian for the Depository pursuant to
Section 2.01 shall be transferred to the beneficial owners
thereof only if such transfer complies with Section 2.06 and (i)
the Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Security or if
at any time such Depository ceases to be a "clearing agency"
registered under the Exchange Act and a 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.
(c) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be
surrendered by the Depository to the Trustee located in the
Borough of Manhattan, The City of New York, to be so transferred,
in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Security, an equal aggregate
principal amount of Initial Notes of authorized denominations.
Any portion of a Global Security transferred pursuant to this
Section shall be executed, authenticated and delivered only in
principal denominations of $1,000 and any integral multiple
thereof and registered in such names as the Depository shall
direct. Any Initial Note delivered in exchange for an interest
in the Global Security shall, except as otherwise provided by
Section 2.06(b), bear the Restricted Securities Legend set forth
in Exhibit A hereto.
(d) Subject to the provisions of Section 2.09(c), the
registered Holder of a 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.
(e) In the event of the occurrence of either of the
events specified in Section 2.09(b), the Company will promptly
make available to the Trustee a reasonable supply of certificated
Securities in definitive, fully registered form without interest
coupons.
SECTION 2.10. 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 registration of transfer,
-40-
exchange or payment. The Trustee and no one else shall cancel
and destroy (subject to the record retention requirements of the
Exchange Act) all Securities surrendered for registration of
transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Company unless the
Company, prior to such cancellation or destruction, the Trustee
receives written directions from the Company to deliver canceled
Securities to the Company. The Company may not issue new
Securities to replace Securities it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company
------------------
defaults in a payment of interest or liquidated damages on the
Securities, the Company shall pay defaulted interest on such
interest or liquidated damages, as the case may be (plus interest
on such defaulted interest to the extent lawful), in any lawful
manner. The Company may pay the defaulted interest to the
persons who are Securityholders on a subsequent special record
date. The Company shall fix or cause to be fixed any such
special record date and payment date to the reasonable
satisfaction of the Trustee which specified record date shall not
be less than 10 days prior to the payment date for such defaulted
interest and shall promptly mail to each Securityholder a notice
that states the special record date, the payment date and the
amount of defaulted interest to be paid. 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, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Person entitled to such
defaulted interest as in this subsection provided.
SECTION 2.12. CUSIP Numbers. The Company in issuing
-------------
the Securities may use "CUSIP" numbers (if then generally in use)
and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided, however, that
-------- -------
any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
-41-
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Company
------------------
elects to redeem Securities pursuant to paragraph 5 of the
Securities, it shall notify the Trustee in writing of the
redemption date and the principal amount of Securities to be
redeemed.
The Company shall give each notice to the Trustee
provided for in this Section at least 60 days before the
redemption date unless the Trustee consents to a shorter period.
Such notice shall be accompanied by an Officers' Certificate and
an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
--------------------------------------
If fewer than all the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata or by lot or
by a method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee considers
fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from
outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in
amounts of $1,000 or a whole multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days
--------------------
but not more than 60 days before a date for redemption of
Securities, the Company shall mail a notice of redemption by
first-class mail to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
-42-
surrendered to the Paying Agent to collect the redemption
price;
(5) if fewer than all the outstanding Securities are
to be redeemed, the identification and principal amounts of
the particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture,
interest or liquidated damages, if any, on Securities (or
portion thereof) called for redemption ceases to accrue and
the Accreted Value of the Securities ceases to accrete on
and after the redemption date;
(7) the CUSIP number, if any, printed on the
Securities being redeemed; and
(8) that no representation is-made as to the
correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Securities.
At the Company's written request, the Trustee shall
give the notice of redemption in the Company's name and at the
Company's expense. In such event, the Company shall provide the
Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once
------------------------------
notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the
Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued and unpaid interest, if
any, to the redemption date; provided that if the redemption date
--------
is after a regular record date and on or prior to an interest
payment date, the accrued interest and liquidated damages, if
any, shall be payable to the Securityholder of the redeemed
Securities registered on the relevant record date. Failure to
give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to
---------------------------
the redemption date, the Company shall deposit with the Paying
Agent (or, if the Company or a Subsidiary is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest and liquidated damages,
if any, on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which
have been delivered by the Company to the Trustee for
cancellation.
-43-
SECTION 3.06. Securities Redeemed in Part. Upon
---------------------------
surrender of a Security teat is redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder
(at the Company's expense) a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
---------
SECTION 4.01. Payment of Securities. The Company shall
---------------------
promptly pay the principal (or the Accreted Value, as the case
may be) of, any liquidated damages and interest on the Securities
on the dates and in the manner provided in the Securities and in
this Indenture. Principal (or the Accreted Value, as the case
may be), any liquidated damages and interest shall be considered
paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to
pay all principal (or the Accreted Value, as the liquidated
damages and interest then due the Paying Agent, as the case may
be, is paying such money to the Securityholders pursuant to the
terms of this Indenture.
The Company shall pay interest on overdue principal (or
the Accreted Value, as the case may be) at the rate specified
therefor in the Securities, and it shall pay case may be), any
and the Trustee or not prohibited from on that date interest on
overdue installments of interest or liquidated damages at the
same rate to the extent lawful.
SECTION 4.02. SEC Reports. The Company shall file with
-----------
the Trustee and provide current (at their addresses as set forth
in the register of Securities), within 15 days after it files
them with the SEC, copies of its annual report and the
information, documents and other reports which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. Notwithstanding that the Company may not be
required to remain or be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall
provide the Trustee and current (at their addresses as set forth
in the register of Securities) and prospective Securityholders
with the annual, quarterly and other reports at the times and
containing in all material respects the information specified in
Sections 13 and 15(d) of the Exchange Act, except that the
Company shall not be required to disclose detailed management
remuneration information, such as the amount and nature of the
compensation received by individual executive officers of the
Company. The Company also shall comply with the other provisions
of TIA (Section) 314(a).
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SECTION 4.03. Limitation on Indebtedness. (a) The
--------------------------
Company shall not, and shall not permit any Restricted Subsidiary
to, Incur any Indebtedness; provided, however, that the Company
-------- -------
may Incur Indebtedness if on the date thereof the Consolidated
Coverage Ratio would be greater than 2.00:1.00 if such
Indebtedness is Incurred on or prior to June 15, 1999; and
2:50:1.00 if such Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a), the
Company and its Restricted Subsidiaries may Incur the following
Indebtedness:
(i) Indebtedness under the Senior Bank Facility (as
the same may be amended from time to time, without
increasing the committed amount outstanding, except as
otherwise permitted by this Section) and any Refinancing
Indebtedness with respect thereto or Indebtedness under any
other credit agreement, indenture or agreement in an
aggregate principal amount on the date of Incurrence which,
when added to all other Indebtedness Incurred pursuant to
this clause (i) and then outstanding, shall not exceed the
sum of the outstanding Indebtedness under the Senior Bank
Facility on the Issue Date and the unused commitments
thereunder on the Issue Date; provided, however, that the
-------- -------
aggregate principal amount of Indebtedness that may be
Incurred pursuant to this clause (i) may not cause the
aggregate principal amount of Indebtedness outstanding
pursuant to this clause (i) to exceed, as of the date of
such Incurrence, the Scheduled Amount. The "Scheduled
Amount" is equal to $600,000,000, as reduced from time to
time by an amount equal to (A) each scheduled principal
amortization payment and (B) each mandatory prepayment
(other than mandatory prepayments in respect of the
Company's consolidated excess cash flow) which the Company
is required to make pursuant to the terms of the Senior Bank
Facility as in effect on the Issue Date;
(ii) Indebtedness (A) of the Company owing to and held
by any Wholly Owned Subsidiary, (B) of any Restricted
Subsidiary owing to and held by the Company or any other
Wholly Owned Subsidiary, provided, however, that any
-------- -------
subsequent issuance or transfer of any Capital Stock or any
other event which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any
subsequent transfer of any such Indebtedness (other than to
the Company or a Wholly Owned Subsidiary) shall be deemed,
in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof;
(iii) Indebtedness represented by the Securities,
any Indebtedness (other than the Indebtedness described in
clauses (i) and (ii) above and Indebtedness of any of the
Co-Venture Subsidiaries or Co-Venture Partnerships)
-45-
outstanding on the date of this Indenture and any
Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (iii);
(iv) Indebtedness of the Company and its Restricted
Subsidiaries (A) in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the
Company and the Restricted Subsidiaries to their customers
in the ordinary course of their business, and (B) under
Currency Agreements and Interest Rate Agreements entered
into in the ordinary course of business consistent with past
practices; provided, however, that in the case of Currency
-------- -------
Agreements and Interest Rate Agreements, such Currency
Agreements and Interest Rate Agreements do not increase the
Indebtedness of the Company outstanding at any time other
than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder;
(v) Indebtedness of a Restricted Subsidiary issued and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than
Indebtedness Incurred (A) as consideration in, or to provide
all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the
Company or (B) otherwise in connection with, or in
contemplation of, such acquisition) and any Refinancing
Indebtedness with respect thereto;
(vi) additional Indebtedness of the Company, any of the
Co-Venture Subsidiaries or any of the Co-Venture
Partnerships in an aggregate principal amount outstanding at
any time not in excess of $30,000,000 which Indebtedness
may, but need not, be incurred under the Senior Bank
Facility or any Refinancing Indebtedness in respect thereof;
and
(vii) Indebtedness represented by the Note
Guarantees, Guarantees of Indebtedness Incurred pursuant to
clause (i) above and Guarantees of Indebtedness of the
Company Incurred pursuant to clause (vi) above.
(c) Notwithstanding any other provision of this
Section, the Company shall not Incur any Indebtedness (i) if the
proceeds thereof are used, directly or indirectly, to repay,
prepay, redeem, defease, retire, refund or refinance any
Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as
such Subordinated Obligations or (ii) if such Indebtedness is
subordinate or junior in ranking in any respect to any Senior
-46-
Indebtedness unless such Indebtedness is Senior Subordinated
Indebtedness or is expressly subordinated in right of payment to
Senior Subordinated Indebtedness. In addition, the Company shall
not Incur any secured Indebtedness (other than Senior
Indebtedness) unless contemporaneously therewith effective
provision is made to secure the Securities equally and ratably
with such secured Indebtedness for so long as such secured
Indebtedness is secured by a Lien.
SECTION 4.04. Limitation on Restricted Payments. (a)
---------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to (i) declare or pay any
dividend or make any distribution on or in respect of its Capital
Stock (including any payment in connection with any merger or
consolidation involving the Company) except dividends or
distributions payable solely in its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock and except dividends or distributions
payable to the Company or another Restricted Subsidiary (and, if
such Restricted Subsidiary is not a Wholly owned Subsidiary, to
its other shareholders on a pro rata basis or, with respect
solely to each of the Co-Venture Partnerships, or their
successors, in such proportion and in such order of priority as
may be provided for in the respective agreements in effect from
time to time between the Company (or the applicable Co-Venture
Subsidiary) and the limited partner or partners of such Co-
Venture Partnership relating to the theme park owned as of the
Issue Date by the applicable Co-Venture Partnership), (ii)
purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company or any Restricted Subsidiary held by
Persons other than the Company or another Restricted Subsidiary,
(iii) purchase, repurchase, redeem, defease or otherwise acquire
or retire for value, prior to scheduled maturity,.scheduled
repayment or scheduled sinking fund payment any Subordinated
Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation
of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due with'-@n one year of the date of
acquisition) or (iv) make any Investment (other than a Permitted
Investment) in any Person (any such dividend, distribution,
purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment being herein referred to as a
"Restricted Payment") if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing
(or would result therefrom);
(2) the Company could not Incur at least $1.00 of
additional Indebtedness pursuant to Section 4.03(a); or
-47-
(3) the aggregate amount of such Restricted Payment
and all other Restricted Payments (the amount so expended,
if other than in cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive
and evidenced by a resolution of the Board of Directors)
declared or made subsequent to the Issue Date would exceed
the sum of:
(A) 50% of an amount equal to EBITDA minus
Consolidated Interest Expense, Capital Expenditures and
the cash portion of income tax expense during the
period (treated as,one accounting period) from the
Issue Date to the end of the most recent fiscal quarter
ending at least 45 days prior to the date of such
Restricted Payment (or, in case such amount shall be a
deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by
the Company from the issue or sale of its Capital Stock
(other than Disqualified Stock) subsequent to the Issue
Date (other than an issuance or sale to a Subsidiary of
the Company or an employee stock ownership plan or
similar trust established by the Company or any of its
Restricted Subsidiaries) or voluntary cash capital
contributions made to the Company subsequent to the
Issue Date;
(C) the aggregate Net Cash Proceeds received by
the Company from the issue or sale of its Capital Stock
(other than Disqualified Stock) to an employee stock
ownership plan or similar trust established by the
Company or any of its Restricted Subsidiaries
subsequent to the Issue Date; provided, however, that
-------- -------
if such plan or trust Incurs any Indebtedness to or
Guaranteed by the Company to finance the acquisition of
such Capital Stock, such aggregate amount shall be
limited to any increase in the Consolidated Net Worth
of the Company resulting from principal repayments made
by such plan or trust with respect to Indebtedness
Incurred by it to finance the purchase of such Capital
Stock;
(D) the amount by which Indebtedness of the
Company is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Subsidiary)
subsequent to the Issue Date of any Indebtedness of the
Company into or for Capital Stock (other than
Disqualified Stock) of the Company (less the amount of
any cash or other property distributed by the Company
upon such conversion or exchange); and
-48-
(E) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from
(i) payments of dividends, repayments of loans or
advances or other transfers of assets to the Company or
any Restricted Subsidiary from Unrestricted
Subsidiaries or (ii) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each
case as provided in the definition of "Investment") not
to exceed, in the case of any Unrestricted Subsidiary,
the amount of Investments previously made by the
Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in
the calculation of the amount of Restricted Payments.
(b) The provisions of the foregoing paragraph (a)
shall not prohibit:
(i) any purchase or redemption of Capital Stock of the
Company or Subordinated Obligations of the Company made by
exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or
sold to a Subsidiary or an employee stock ownership plan or
similar trust established by the Company or any of its
Restricted Subsidiaries) or of a voluntary cash capital
contribution to the Company; provided, however, that (A)
-------- -------
such purchase or redemption shall be excluded in the
calculation of the amount of Restricted Payments and (B) the
Net Cash Proceeds from such sale shall be excluded from
Section 4.04(a)(3)(B);
(ii) any purchase or redemption of Subordinated
obligations made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Indebtedness of the
Company which is permitted to be Incurred pursuant to
Section 4.03; provided, however, that such Indebtedness (A)
-------- -------
shall be subordinated to the Securities and shall be
subordinated to Senior Indebtedness and Senior Subordinated
Indebtedness to at least the same extent as the Subordinated
obligations so exchanged, purchased or redeemed, (B) shall
have a Stated Maturity later than the Stated Maturity of the
Securities and (C) shall have an Average Life greater than
the remaining Average Life of the Securities; provided,
--------
further, however, that such purchase or redemption shall be
excluded in the calculation of the amount of Restricted
Payments;
(iii) any purchase or redemption of Subordinated
Obligations from Net Available Cash to the extent permitted
by Section 4.06; provided, however, that such purchase or
-------- -------
redemption shall be excluded in the calculation of the
amount of Restricted Payments;
-49-
(iv) dividends paid within 60 days after the date of
declaration thereof or Restricted Payments made within 60
days after the making of a binding commitment in respect
thereof, if at such date of declaration or commitment such
dividend or other Restricted Payment would have complied
with Section 4.04(a); provided, however, that at the time of
-------- -------
payment of such dividend or other Restricted Payment, no
other Default shall have occurred and be continuing (or
would result therefrom); provided, further, however, that
-------- ------- -------
such dividend or other Restricted Payment shall be included
in the calculation of the amount of Restricted Payments;
(v) payment of dividends or other distributions by the
Company for the purposes set forth in clauses (A) and (B)
below: (A) to SFEC and/or Holdings to the extent necessary
for SFEC and Holdings to pay (x) reasonable expenses in the
ordinary course of business in connection with preparing and
distributing annual reports, proxy statements and other
financial reports as may be required by applicable law or
stock exchange regulation, (y) state corporate franchise
taxes, directors' fees and directors' meeting expenses,
directors' and officers' insurance premiums, transfer agent
fees and expenses, stock exchange listing fees and expenses
and (z) other reasonable administrative expenses actually
incurred in the ordinary course of business; provided that
--------
the amount permitted to be paid or distributed pursuant to
this clause (z) shall not exceed $1,000,000 in any fiscal
year; and (B) to SFEC or Holdings for Federal, state and
local income taxes and related expenses attributable to 'the
income of the Company and its Restricted Subsidiaries
pursuant to the tax sharing agreement as in effect on the
Issue Date;
(vi) so long as no Event of Default or Default shall
have occurred and be continuing (or would result therefrom),
the declaration and payment of dividends (or the making of
loans or advances), directly or through Holdings, to SFEC
for the purpose of and in an amount which shall not exceed
the amount necessary for the payment in cash of the interest
expense on outstanding Qualified SFEC Replacement Notes as
such interest becomes due and payable in cash;
(vii) so long as no Event of Default or Default
shall have occurred and be continuing (or would result
therefrom), the one-time declaration and payment of a
dividend (or the one-time making of a loan or advance),
directly or through Holdings, to SFEC in an amount no
greater than the amount necessary for the redemption,
repurchase, defeasance or other acquisition or retirement
for value of all outstanding Zero Coupon Notes on or prior
to their Stated Maturity and the payment by SFEC of
-50-
reasonable and customary fees and expenses incurred in
connection therewith;
(viii) so long as no Event of Default or Default
shall have occurred and be continuing (or would result
therefrom), the purchase, redemption, retirement or other
acquisition by the Company or any Restricted Subsidiary of
limited partnership interests in the limited partners in the
Co-Venture Partnerships, or their successors, in accordance
with and in the manner required by the terms of any
agreement entered into by the Company or any Restricted
Subsidiary of the Company with either such partnership in
connection with the extension beyond December 31, 1997 of
the Company's management arrangements with respect to the
theme park owned as of the Issue Date by the applicable
partnership; or
(ix) dividends or distributions made by the Company to
the extent attributable to the net proceeds of any Non-
Recourse Indebtedness Incurred by Unrestricted Subsidiaries
of the Company. Notwithstanding the foregoing, a payment
made to SFEC or Holdings for any purpose described in clause
(v)(A) of this paragraph shall be deemed to be a payment
permitted by such clause only if, not later than 180 days
following the making of such payment, SFEC or Holdings, as
the case may be, shall either have (i) actually paid the
expenses in respect of which such payment was made, or (ii)
returned to the Company any portion of such payment made in
respect of an expense that has not been paid; provided, that
--------
the return of any such amount shall not prevent the Company
from making a later payment to SFEC or Holdings pursuant to
said clause (v)(A) to the extent then required by SFEC or
Holdings to pay such expense; and, provided further, that if
--------
any amount so returned to the Company pursuant to this
sentence is in respect of a payment made to SFEC or Holdings
in order to pay an expense contemplated by clause (v)(A)(z),
then the amount so returned shall not be included in
calculating the $1,000,000 annual limitation on such
payments set forth therein.
SECTION 4.05. Limitation on Restrictions on
-----------------------------
Distributions from Subsidiaries. The Company shall not, and
-------------------------------
shall not permit any Restricted Subsidiary to, create or
otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock or pay any Indebtedness or
other obligation owed to the Company, (ii) make any loans or
advances to the Company or (iii) transfer any of its property or
assets to the Company, except:
-51-
(1) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue Date,
including those arising under the Senior Bank Facility;
(2) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to
any Indebtedness Incurred by such Restricted Subsidiary on
or prior to the date on which such Restricted Subsidiary was
acquired by the Company (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company) and outstanding
on such date;
(3) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement effecting the
Incurrence of Refinancing Indebtedness with respect to
Indebtedness Incurred pursuant to an agreement referred to
in clause (1) or (2) of this Section or contained in any
amendment to an agreement referred to in clause (1) or (2)
of this Section; provided, however, that the encumbrances
-------- -------
and restrictions with respect to any Restricted Subsidiary
contained in any such Refinancing Indebtedness agreement or
amendment are no less favorable to the Securityholders than
encumbrances and restrictions contained in such agreements;
(4) in the case of clause (iii), any encumbrance or
restriction (A) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset
that is subject to a lease, license, conveyance or contract
or similar property or asset, (B) by virtue of any transfer
of, agreement to transfer, option or right with respect to,
or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this
Indenture, (C) arising or agreed to in the ordinary course
of business and that does not, individually or in the
aggregate, detract from the value of property or assets of
the Company or any Restricted Subsidiary in any manner
material to the Company or such Restricted Subsidiary or (D)
contained in security agreements securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or
restrictions restrict the transfer of the property subject
to such security agreements;
(5) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of all or substantially all the
Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and
-52-
(6) any encumbrance or restriction with respect to a
Co-Venture Partnership imposed pursuant to the applicable
agreement in effect from time to time between the Company
(or the applicable Co-Venture Subsidiary) and the limited
partner or partners of each Co-Venture Partnership.
SECTION 4.06. Limitation on Sales of Assets and
---------------------------------
Subsidiary Stock. (a) The Company shall not, and shall not permit
----------------
any Restricted Subsidiary to, make any Asset Disposition unless
(i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Disposition at least
equal to the fair market value, as determined in good faith by
the Board of Directors (including as to the value of all noncash
consideration), of the shares and assets subject to such Asset
Disposition, (ii) at least 75% of the consideration thereof
received by the Company or such Restricted Subsidiary is in the
form of cash or cash equivalents provided, however, that in
-------- -------
respect of an Asset Disposition, more than 25% of the
consideration may consist of consideration other than cash or
cash equivalents if (A) the portion of such consideration that
does not consist of cash or cash equivalents consists of assets
of a type ordinarily used in the operation of theme parks
(including Capital Stock of a Person that shall become a
Restricted Subsidiary and that holds such assets) to be used by
the Company or a Restricted Subsidiary in the conduct of the
Company's business, (B) the terms of such Asset Disposition have
been approved by a majority of the members of the Board of
Directors of the Company having no personal stake in such
transaction, and (C) the Board of Directors of the Company has
received a written opinion of a nationally recognized investment
banking firm to the effect that such Asset Disposition is fair,
from a financial point of view, to the Company and the Company
has delivered a copy of such opinion to the Trustee; provided,
--------
however, that no such opinion shall be required in connection
-------
with any such Asset Disposition unless the value of the assets
being disposed of by the Company or such Restricted Subsidiary in
such transaction (as determined in good faith by such members of
the Board of Directors of the Company) is at least $10,000,000,
and (iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or such
Restricted Subsidiary, as the case may be) (A) first, to the
extent the Company elects (or is required by the terms of any
Senior Indebtedness or Indebtedness (other than any Preferred
Stock) of a Wholly Owned Subsidiary), to prepay, repay or
purchase Senior Indebtedness or such Indebtedness (other than any
Preferred Stock) of a Wholly Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the
Company (other than Indebtedness Incurred pursuant to Section
4.03(b)(i))) within one year after the later of the date of such
Asset Disposition or the receipt of such Net Available Cash; (B)
second, to the extent of the balance of Net Available Cash after
application in accordance with clause (A), to the extent the
-53-
Company elects, to invest in Additional Assets within one year
from the later of the date of such Asset Disposition or the
receipt of such Net Available Cash; (C) third, to the extent of
the balance of such Net Available Cash (which, in the case of an
Asset Disposition by a Co-Venture Partnership, shall be deemed to
be the amount of such Net Available Cash distributed to the
applicable Co-venture Subsidiary, in which case the offer to
purchase the Notes shall be made by the applicable Co-Venture
Subsidiary or the Company) after application in accordance with
clauses (A) and (B), to make an offer to purchase Securities
pursuant and subject to the conditions of this Indenture to the
Securityholders at a purchase price of 100% of the principal
amount thereof, plus accrued and unpaid interest or, prior to the
third anniversary of the Issue Date, 100% of the Accreted Value
thereof, to and including the purchase date, and (D) fourth, to
the extent of the balance of such Net Available Cash after
application in accordance with clauses (A), (B) and (C), to (x)
acquire Additional Assets (other than Indebtedness and Capital
Stock) or (y) prepay, repay or purchase Indebtedness of the
Company (other than Indebtedness owed to an Affiliate of the
Company and other than Preferred Stock of the Company) or
Indebtedness of any Restricted Subsidiary (other than
Indebtedness owed to the Company or an Affiliate of the Company),
in each case described in this clause (D) within one year from
the receipt of such Net Available Cash or, if the Company has
made an Offer pursuant to clause (C), six months from the date
such offer is consummated; provided, however, that in connection
-------- -------
with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (A), (C) or (D) above, the Company or such
Restricted Subsidiary shall retire such Indebtedness and shall
cause the related loan commitment (if any) to be permanently
reduced in an amount equal to the principal amount so prepaid,
repaid or purchased.
Notwithstanding the foregoing provisions, the Company and the
Restricted Subsidiaries shall not be required (x) to comply with
the foregoing provisions relating to the application of proceeds
from Asset Dispositions consisting of sales or other dispositions
of rides and attractions (together with any related equipment) in
any fiscal year with an aggregate value not in excess of
$5,000,000; provided, however, that the aggregate amount of Asset
-------- -------
Dispositions exempted from such provisions subsequent to the
Issue Date shall not exceed $25,000,000, or (y) to apply any Net
Available Cash in accordance with this Section except to the
extent that the aggregate Net Available Cash from all Asset
Dispositions which is not applied in accordance with this Section
exceeds $500,000. The Company shall not be required to make an
Offer for Securities pursuant to this Section if the Net
Available Cash available therefor (after application of the
proceeds as provided in clauses (A) and (B) (exclusive of amounts
described in clause (x) of the preceding sentence) is less than
$5,000,000 for any particular Asset Disposition (which lesser
-54-
amount shall be carried forward for purposes of determining
whether an Offer is required with respect to the Net Available
Cash from any subsequent Asset Disposition). Pending application
of Net Available Cash pursuant to this provision, such Net
Available Cash shall be invested in Permitted Investments.
For the purposes of this Section, the following shall
be deemed to be cash: (x) the assumption of Indebtedness of the
Company (other than Disqualified Stock of the Company) or any
Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on such Indebtedness in
connection with such Asset Disposition and (y) securities
received by the Company or any Restricted Subsidiary from the
transferee that are promptly converted by the Company or such
Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires
the purchase of Securities pursuant to Section 4.06(a)(iii)(C),
the Company shall be required to purchase Securities tendered
pursuant to an offer by the Company for the Securities (the
"Offer") at a purchase price of 100% of their principal amount,
plus accrued interest or, prior to the third anniversary of the
Issue Date, 100% of their Accreted Value, to and including the
purchase date in accordance with the procedures (including pro-
rationing in the event of oversubscription) set forth in this
Indenture. If the aggregate purchase price of the Securities
tendered pursuant to the offer is less than the Net Available
Cash allotted to the purchase of the Securities, the Company
shall apply the remaining Net Available Cash in accordance with
Section 4.06(a)(iii)(D).
(c) (1) Promptly, and in any event within 10 days
after the Company becomes obligated to make an Offer, the Company
shall be obligated to deliver to the Trustee and send, by first-
class mail to each Holder, a written notice stating that the
Holder may elect to have his Securities purchased by the Company
either in whole or in part (subject to prorationing as
hereinafter described in the event the Offer is oversubscribed)
in integral multiples of $1,000 of principal amount, at the
applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date
of such notice (the "Purchase Date") and shall contain such
information concerning the business of the Company which the
Company in good faith believes will enable such Holders to make
an informed decision (which at a minimum will include (i) the
most recent annual report, quarterly reports, if any, subsequent
to such annual reports and any current reports subsequent to the
most recent annual or quarterly report, as the case may be,
required to be delivered pursuant to Section 4.02 hereof, other
than current reports describing Asset Dispositions otherwise
described in the offering materials (or corresponding successor
reports), (ii) a description of material developments in the
-55-
Company's business subsequent to the date of the latest of such
Reports, and (iii) if material, appropriate pro forma financial
information) and all instructions and materials necessary to
tender Securities pursuant to the Offer, together with the
information contained in clause (3).
(2) Not later than the date upon which written notice
of an Offer is delivered to the Trustee as provided below, the
Company shall deliver to the Trustee an Officers' Certificate as
to (i) the amount of the Offer (the "Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of Section
4.06(a). On such date, the Company shall also irrevocably deposit
with the Trustee or with a paying agent (or, if the Company is
acting as its own paying agent, segregate and hold in trust) in
Temporary Cash Investments an amount equal to the Offer Amount to
be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Company shall deliver to
the Trustee for cancellation the Securities or portions thereof
which have been properly tendered to and are to be accepted by
the Company. The Trustee shall, on the Purchase Date, mail or
deliver payment to each tendering Holder in the amount of the
purchase price. In the event that the aggregate purchase price
of the Securities delivered by the Company to the Trustee is less
than the Offer Amount, the Trustee shall deliver the excess to
the Company immediately after the expiration of the Offer Period
for application in accordance with this Section.
(3) Holders electing to have a Security purchased will
be required to surrender the Security, with an appropriate form
duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the Purchase Date.
Holders will be entitled to withdraw their election if the
Trustee or the Company 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 Security which was delivered for purchase
by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer 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 principal denominations of
$1,000, or integral multiples thereof, shall be purchased).
Holders whose Securities are purchased only in part will be
issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
-56-
(4) At the time the Company delivers Securities to the
Trustee which are to be accepted for purchase, the Company will
also deliver an officers' Certificate stating that such
Securities are to be accepted-by the Company pursuant to and in
accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with
-------------------------------
Affiliates. (a) The Company shall not, and shall not permit any
----------
Restricted Subsidiary to, directly or indirectly, enter into or
conduct any transaction or series of similar transactions
(including the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate of the
Company (an "Affiliate Transaction") unless: (i) the terms of
such Affiliate Transaction are no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than those
that could be obtained at the time of such transaction in arm's-
length dealings with a Person who is not such an Affiliate; (ii)
in the event such Affiliate Transaction involves an aggregate
amount in excess of $2,000,000, the terms of such Affiliate
Transaction have been approved by a majority of the members of
the Board of Directors having no personal stake (distinct from
the interest of the Company) in such Affiliate Transaction (and
such majority determines that such Affiliate Transaction
satisfies the criteria in (i) above); and (iii) in the event such
Affiliate Transaction involves an aggregate amount in excess of
$10,000,000, the Company has received a written opinion from an
independent investment banking firm that such transaction is fair
to the Company from a financial point of view.
(b) The provisions of Section 4.07(a) shall not
prohibit (i) any Restricted Payment permitted to be paid pursuant
to Section 4.04, (ii) any transaction between the Company and a
Wholly owned Subsidiary or between Wholly Owned Subsidiaries,
(iii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors, (iv) loans or
advances to employees in the ordinary course of business in
accordance with past practices of the Company or any Restricted
-57-
Subsidiary or (v) the payment of reasonable fees to directors of
the Company and its Subsidiaries who are not employees of the
Company or its Subsidiaries.
SECTION 4.08. Change of Control. (a) Upon a Change of
-----------------
Control, each Holder shall have the right to require that the
Company repurchase such Holder's Securities at a purchase price
in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, or, prior to the third
anniversary of the Issue Date, 101% of the Accreted Value
thereof, in either case to and including the date of purchase
(subject to the right of Holders of record on a record date to
receive interest on the relevant interest payment date), in
accordance with the terms contemplated in Section 4.08(b). In the
event that at the time of such Change of Control the terms of the
Bank Indebtedness restrict or prohibit the repurchase of
Securities pursuant to this Section, then prior to the mailing of
the notice to Holders provided for in Section 4.08(b) below but
in any event within 30 days following any Change of Control, the
Company shall (i) repay in full all Bank Indebtedness or offer to
repay in full all Bank Indebtedness and repay the Bank
Indebtedness of each lender who has accepted such offer or (ii)
obtain the requisite consent under the agreements governing the
Bank Indebtedness to permit the repurchase of the Securities as
provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder with a copy to the
Trustee stating:
(1) that a Change of Control has occurred and that
such Holder has the right to require the Company to purchase
such Holder's Securities at a purchase price in cash equal
to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, or, prior to the third anniversary
of the Issue Date, 101% of the Accreted Value thereof, in
either case to and including the date of purchase (subject
to the right of Holders of record on a record date to
receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding
such Change of Control (including information with respect
to pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control);
(3) the repurchase date (which shall be no earlier
than 30 days nor later than 60 days from the date such
notice is mailed); and
(4) the instructions determined by the Company,
consistent with this Section, that a Holder must follow in
order to have its Securities purchased.
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(c) Holders electing to have a Security purchased
shall be required to surrender the Security, with an appropriate
form duly completed, to the Company at the address specified in
the notice at least three Business Days prior to the purchase
date. Holders shall be entitled to withdraw their election if
the Trustee or the Company 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 Security which was delivered for purchase
by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased.
(d) on the purchase date, all Securities purchased by
the Company under this Section shall be delivered by the Trustee
for cancellation, and the Company shall pay the purchase price
plus accrued and unpaid interest, if any, to the Holders entitled
thereto.
(e) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company and
----------------------
each Note Guarantor shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company or such Note
Guarantor (as applicable) an Officers' Certificate stating that
in the course of the performance by the signers of their duties
as Officers of the Company or such Note Guarantor, as the case
may be, they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred
during such period. If they do, the certificate shall describe
the Default, its status and what action the Company or such Note
Guarantor (as applicable) is taking or proposes to take with
respect thereto. The Company also shall comply with TIA
(Section) 314(a)(4).
SECTION 4.10. Further Instruments and Acts. Upon
----------------------------
request of the Trustee, the Company shall execute and deliver
such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 4.11 Limitation on Liens. The Company shall
-------------------
not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, create or permit to exist any Lien on any of its
property or assets (including Capital Stock), whether owned on
-59-
the date of this Indenture or thereafter acquired, securing
anyobligation other than Permitted Liens unless contemporaneously
therewith effective provision is made to secure the Securities
equally and ratably with (or on a senior basis, in the case of
Indebtedness subordinated in right of payment to the Securities)
such obligation for so long as such obligation is so secured.
SECTION 4.12. Limitation on Sale/Leaseback
----------------------------
Transactions. The Company shall not, and shall not permit any
------------
Restricted Subsidiary to, enter into a Sale/Leaseback Transaction
unless: (a)(i) the Company or such Restricted Subsidiary would be
entitled to (A) Incur Indebtedness with respect to such
Sale/Leaseback Transaction pursuant to Section 4.03 and (B)
create a Lien on the property to secure Indebtedness in an amount
at least equal to the Attributable Indebtedness in respect of
such Sale/Leaseback Transaction without equally and ratably
securing the Securities as required under Section 4.11 and (ii)
the Sale/Leaseback Transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with,
Section 4.06; or (b) the net cash proceeds received by the
Company or any Restricted Subsidiary in connection with such
Sale/Leaseback Transaction are at least equal to the fair value
(as determined by the Board of Directors) of such property, and
the Company or such Restricted Subsidiary applies an amount in
cash equal to such net proceeds to the retirement, within one
year of the effective date of any such Sale/Leaseback
Transaction, of the Securities.
SECTION 4.13. Limitation on Lines of Business. The
-------------------------------
Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business, other than those businesses in which
the Company is engaged on the date of this Indenture, the theme
park business or those businesses directly related to either.
SECTION 4.14. Future Note Guarantors. The Company
----------------------
shall cause each Restricted Subsidiary (other than a Co-Venture
Partnership or a Subsidiary thereof) which Incurs Indebtedness or
which is a guarantor of Indebtedness Incurred pursuant to Section
4.03(b)(i) (unless such Subsidiary is a Note Guarantor) to
execute and deliver to the Trustee a supplemental indenture in
the form of Exhibit D hereto, pursuant to which such Restricted
Subsidiary will Guarantee payment of the Notes, as provided in
Section 11.06.
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer
----------------------------------
Assets. The Company shall not consolidate with or merge with or
------
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into, or convey, transfer or lease all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") is a corporation, partnership, limited
liability company or business trust organized and existing
under the laws of the United States of America, any State
thereof or the District of Columbia (a "Domestic Company")
and the Successor Company (if not the Company) expressly
assumes, by a supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this
Indenture;
(ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an
obligation of the Successor Company or any Restricted
Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default
shall have occurred and be continuing;
(iii) immediately after giving effect to such
transaction, the Consolidated Coverage Ratio of the
Successor Company is at least 2.00:1;
(iv) immediately after giving effect to such
transaction, the Successor Company shall have Consolidated
Net Worth in an amount which is not less than the
Consolidated Net Worth of the Company immediately prior to
such transaction; and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an opinion of Counsel, each
stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
The Successor Company shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture, but the predecessor Company in the
case of a lease of all or substantially all its assets shall not
be released from the obligation to pay the principal (or the
Accreted Value, as the case may be) of and interest on the
Securities.
Notwithstanding the foregoing clauses (ii), (iii) and
(iv), (1) any Restricted Subsidiary may consolidate with, merge
into or transfer all or part of its properties and assets to the
Company and (2) the Company may merge with any Affiliate which is
a Domestic Company incorporated for the purpose of
reincorporating the Company in another jurisdiction to realize
tax or other benefits.
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ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default"
-----------------
occurs if:
(1) the Company defaults in any payment of interest on
any Security when the same becomes due and payable, whether
or not such payment shall be prohibited by Article 10, and
such default continues for a period of 30 days;
(2) the Company (i) defaults in the payment of the
principal (or the Accreted Value, as the case may be) of any
Security when the same becomes due and payable at its Stated
Maturity, upon redemption, upon declaration or otherwise,
whether or not such payment shall be prohibited by Article
10 or (ii) fails to redeem or purchase Securities when
required pursuant to this Indenture or the Securities,
whether or not such redemption or purchase shall be
prohibited by Article 10;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02,
4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13 or 4.14
(other than a failure to purchase Securities when required
under Section 4.06 or 4.08) and such failure continues for
30 days after the notice specified below;
(5) the Company or any Note Guarantor fails to comply
with any of its agreements in the Securities or this
Indenture (other than those referred to in (1), (2), (3) or
(4) above) and such failure continues for 60 days after the
notice specified below;
(6) Indebtedness of the Company or any Significant
Subsidiary is not paid within any applicable grace period
after final maturity or is accelerated by the holders
thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $10,000,000 or
its foreign currency equivalent at the time and such default
continues for 10 days after the notice specified below;
(7) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
-62-
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of
its property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and
the order, decree or relief remains unstayed and in effect
for 60 days;
(9) any judgment or decree for the payment of money in
excess of $10,000,000 or its foreign currency equivalent at
the time is entered against the Company or any Significant
Subsidiary and is not discharged and either (A) an
enforcement proceeding has been commenced by any creditor
upon such judgment or decree or (B) there is a period of 60
days following the entry of such judgment or decree during
which such judgment or decree is not discharged, waived or
the execution thereof stayed; or
(10) any Note Guarantee shall cease to be in full force
and effect (except as contemplated by the terms thereof) or
any Note Guarantor shall deny or disaffirm its obligations
under this Indenture or any Note Guarantee and such Default
continues for 10 days.
The foregoing shall constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United States
-------------
Code, or any similar Federal or state law for the relief of
----
debtors. The term "Custodian" means any receiver, trustee,
-63-
assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (4), (5) or (6) is not an Event
of Default until the Trustee or the Holders of at least 25% in
principal amount of the Securities notify the Company of the
Default and the Company does not cure such Default within the
time specified after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of
an Officers' Certificate of any Event of Default under clause
(3), (6) and (7) and any event which with the giving of notice or
the lapse of time would become an Event of Default under clause
(4), (5), (8), (9) or (10), its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default
------------
(other than an Event of Default specified in Section 6.01(7) or
(8) with respect to the Company) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25%
in principal amount of the Securities by notice to the Company
and the Trustee, may declare the principal of, or if prior to the
third anniversary of the Issue Date the Accreted Value of, and
accrued and unpaid interest, if any, on all the Securities to be
due and payable. Upon such a declaration, such principal or
Accreted Value, as the case may be, and interest shall be due and
payable immediately. If an Event of Default specified in Section
6.01(7) or (8) with respect to the Company occurs, the principal
(or Accreted Value, as the case may be) of and interest on all
the Securities shall @so facto become and be immediately due and
payable without any declaration or other act on the part of the
Trustee or any Securityholders. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except
nonpayment of principal or Accreted Value, as the case may be, or
interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default
--------------
occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal (or Accreted Value, as
the case may be) of or interest on the Securities or to enforce
the performance of any provision of the Securities or this
Indenture.
-64-
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
Securityholder 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.
SECTION 6.04. Waiver of Past Defaults. The Holders of
-----------------------
a majority in principal amount to the Securities by notice to the
Trustee may waive an existing Default and its consequences except
(i) a Default in the payment of the principal (or Accreted Value,
as the case may be) of or interest on a Security or (ii) a
Default in respect of a provision that under Section 9.02 cannot
be amended without the consent of each Securityholder affected.
When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a
-------------------
majority in principal amount of the Securities may direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture
or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders or
would involve the Trustee in personal liability; provided,
--------
however, that the Trustee may take any other action deemed proper
-------
by the Trustee that is not inconsistent with such direction.
Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder
-------------------
may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of
the Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability
or expense;
-65-
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
security or indemnity; and
(5) the Holders of a majority in principal amount of
the Securities do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a
preference or priority over another Securityholder.
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 (or Accreted Value,
as the case may be) of and any liquidated damages and interest on
the Securities held by such Holder, on or after the respective
due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event
--------------------------
of Default specified in Section 6.01(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole
amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in
Section 7.07.
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 and the Securityholders allowed in any
judicial proceedings relative to the Company, any Note Guarantor,
their respective creditors or properties and, unless prohibited
by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any
such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and its counsel, and any other amounts
due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any
----------
money or property pursuant to this Article 6, it shall pay out
the money or property in the following order:
-66-
FIRST: to the Trustee for amounts due under Section
7.07;
SECOND: to holders of Senior Indebtedness to the extent
required by Article 10;
THIRD: to Securityholders for amounts due and unpaid
on the Securities for principal (or Accreted Value, as the
case may be), any liquidated damages and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal (or
Accreted Value, as the case may be), any liquidated damages
and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this Section. At
least 15 days before such record date, the Company shall mail to
each Securityholder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
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 does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.07 or a suit by Holders
of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws.
--------------------------------
Neither the Company nor any Note Guarantor (to the extent it may
lawfully do so) shall at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company and each Note
Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE 7
Trustee
-------
-67-
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
-----------------
has occurred and is continuing, the Trustee shall exercise 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
such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to.perform such duties and
only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform 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 wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(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; and
(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) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b),
(c) and (g) of this Section.
(e) 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.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
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(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions
of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may
-----------------
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 or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers' Certificate or
opinion of Counsel.
(c) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however,
-------- -------
that the Trustee's conduct does not constitute wilful misconduct
or negligence.
(e) The Trustee may consul@ with counsel, and the
advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect
to 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 not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond, debenture, or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney.
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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 or its Affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying 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 or the Securities, it
shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document
issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs
------------------
and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Securityholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment
of principal (or Accreted Value, as the case may be) of or
interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of
its Trust officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As
-----------------------------
promptly as practicable after each May 15 beginning with the May
15 following the date of this Indenture, and in any event prior
to July 15 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of May 15 that complies
with TIA (Section) 313(a). The Trustee also shall comply with
TIA (Section) 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange (if any) on which the Securities are listed. The
Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and 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 as the Company and the Trustee may
agree from time to time in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the
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compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances
of the Trustee's agents, counsel, accountants and experts. The
Company and each Note Guarantor, jointly and severally, shall
indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees, expenses, advances
and disbursements) incurred by it in connection with the
administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. 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 may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company
need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the
Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee other than
money or property held in trust to pay principal (or Accreted
Value, as the case may be) of and interest and any liquidated
damages on particular Securities.
The Company's payment obligations pursuant to this
Section shall survive the satisfaction or discharge of this
Indenture, any rejection or termination of this Indenture under
any bankruptcy law or the resignation or removal of the Trustee.
When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(7) or (8) with respect to the
Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may
----------------------
resign at any time by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the
Trustee by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by
the Holders of a majority in principal amount of the Securities
and such Holders do not reasonably promptly appoint a successor
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Trustee, or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to herein as the
retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section
7.07.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee or the Holders of 10% in principal amount of the
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
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding the replacement of the Trustee pursuant
to this Section, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. if the
---------------------------
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation or banking association, the resulting,
surviving or transferee corporation without any further act shall
be the successor Trustee.
In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities
shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor to
the Trustee; and in all such cases such certificates shall have
the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall
have.
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SECTION 7.10. Eligibility; Disqualification. The
-----------------------------
Trustee shall at all times satisfy the requirements of TIA
(Section) 310(a). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply
with TIA (Section) 310(b); provided, however, that there shall be
-------- -------
excluded from the operation of TIA (Section) 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 (Section) 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
-----------------------------------------
Company. The Trustee shall comply with TIA (Section) 311(a),
-------
excluding any creditor relationship listed in TIA (Section)
311(b). A Trustee who has resigned or been removed shall be
subject to TIA (Section) 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities;
------------------------------------
Defeasance. (a) When (i) the Company delivers to the Trustee all
----------
outstanding Securities (other than Securities replaced pursuant
to Section 2.07) for cancellation or (ii) all outstanding
Securities have become due and payable, whether at maturity or as
a result of the mailing of a notice of redemption pursuant to
Article 3 hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption
all outstanding Securities, including interest thereon to
maturity or such redemption date (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays
all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied
by an officers' Certificate and an opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company
at any time may terminate (i) all its obligations under the
Securities and this Indenture ("illegal defeasance option") or
(ii) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and 4.14 and the
operation of Section 6.01(4), 6.01(6), 6.01(7) (but only with
respect to a Significant Subsidiary), 6.01(8) (but only with
respect to a Significant Subsidiary) and 6.01(9) ("covenant
defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
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If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an
Event of Default. If the Company exercises its covenant
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in 6.01(4),
6.01(6), 6.01(7) (but only with respect to a Significant
Subsidiary), 6.01(8) (but only with respect to a Significant
Subsidiary) and 6.01(9) or because of the failure of the Company
to comply with clauses (iii) and (iv) of Section 5.01.
Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge in
writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding clauses (a) and (b) above, the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the
Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company
------------------------
may exercise its regal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Securities to maturity
or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited money without
investment shall provide cash at such times and in such
amounts as shall be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as
the case may be;
(3) 123 days pass after the deposit is made and during
the 123-day period no Default specified in Section 6.01(7)
or (8) with respect to the Company occurs which is
continuing at the end of the period;
(4) the deposit does not constitute a default under
any other agreement binding on the Company and is not
prohibited by Article 10;
(5) the Company delivers to the Trustee an opinion of
Counsel to the effect that the trust resulting from the
-74-
deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Securityholders
shall not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and shall be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Securityholders shall not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and shall
be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such covenant defeasance had not occurred; and
(8) the Company delivers to the Trustee an officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article 8 have been
complied with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee
--------------------------
shall hold in trust money or U.S. Government obligations
deposited with it pursuant to this Article 8. It shall apply the
deposited money and the money from U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
Money and securities so held in trust are not subject to Article
10.
SECTION 8.04. Repayment to Company. The Trustee and
--------------------
the Paying Agent shall promptly turn over to the Company upon
written request any excess money or securities held by them at
any time.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon
-75-
written request any money held by them for the payment of
principal or interest that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the money must look to
the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations.
------------------------------------
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the principal and interest
received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying
-------------
Agent is unable to apply any money or U.S. Government Obligations
in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under
this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance
with this Article 8; provided, however, that, if the Company has
-------- -------
made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company
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 9
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company,
--------------------------
the Note Guarantors and the Trustee may amend this Indenture or
the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
provided, however, that the uncertificated Securities are
-------- -------
issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the
Code;
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(4) to make any change in Article 10 that would limit
or terminate the benefits available to any holder of Senior
Indebtedness (or Representatives therefor) under Article 10;
(5) to add guarantees with respect to the Securities
or to secure the Securities;
(6) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(7) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA;
(8) to make any change that does not adversely affect
the rights of any Securityholder; or
(9) to provide for the issuance of the Exchange Notes,
which will have terms substantially identical in all
material respects to the Initial Notes (except that the
transfer restrictions contained in the Initial Notes will be
modified or eliminated, as appropriate), and which will be
treated, together with any outstanding Initial Notes. as a
single issue of securities.
An amendment under this Section may not make any change
that adversely affects the rights under Article 10 of any holder
of Senior Indebtedness then outstanding unless the holders of
such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a notice
briefly describing such amendment. The failure to give such
notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company,
-----------------------
the Note Guarantors and the Trustee may amend this Indenture or
the Securities without notice to any Securityholder but with the
written consent of the Holders of at least a majority in
principal amount of the Securities. However, without the consent
of each Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the rate of or extend the time for payment
of interest or any liquidated damages on any Security;
-77-
(3) reduce the principal (or Accreted Value, as the
case may be) of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption of
any Security or change the time at which any Security may or
shall be redeemed in accordance with Article 3;
(5) make any Security payable in money other than that
stated in the Security;
(6) make any change in Article 10 that adversely
affects the rights of any Securityholder under Article 10;
(7) modify or affect in any manner adverse to the
Holders the terms and conditions of the obligation of any
Note Guarantor for the due and punctual payment of the
principal (or Accreted Value, as the case may be) of or any
liquidated damages or interest on Securities; or
(8) make any change in Section 6.04 or 6.07 or the
second sentence of this Section.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
An amendment under this Section may not make any change
that adversely affects the rights under Article 10 of any holder
of Senior Indebtedness then outstanding unless the holders of
such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a notice
briefly describing such amendment. The failure to give such
notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to this Indenture or the Securities shall comply
with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and
-------------------------------------
Waivers. A consent to an amendment or a waiver by a Holder of a
-------
Security shall bind the Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same
debt as the consenting Holder's Security, even if notation of the
consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as
to such Holder's Security or portion of the Security if the
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Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or
waiver becomes effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders
entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any
such action, 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.
SECTION 9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment 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
regarding 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 to issue a
new Security shall not affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee
--------------------------
shall sign any amendment authorized pursuant to this Article 9 if
the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the
Trustee may but need not Sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01)
shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture and that such
amendment is the legal, valid and binding obligation of the
Company and the Note Guarantors enforceable against them in
accordance with its terms, subject to customary exceptions.
SECTION 9.07. Payment for Consent. Neither the Company
-------------------
nor any Affiliate of the Company shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement
to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders that so
consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
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ARTICLE 10
Subordination
-------------
SECTION 10.01. Agreement To Subordinate. The Company
------------------------
and each of the Note Guarantors agrees, and each Securityholder
by accepting a Security and the related Note Guarantees agrees,
that the Indebtedness evidenced by the Securities is subordinated
in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable
by the holders of Senior Indebtedness. The Securities shall in
all respects rank pari passu with all other.Senior Subordinated
---- -----
Indebtedness of the Company, the Note Guarantees shall in all
respects rank pari passu with all other Senior Subordinated
Indebtedness of the Note Guarantors and only Indebtedness of the
Company and the Note Guarantors which is Senior Indebtedness
shall rank senior to the Securities and the Note Guarantees in
accordance with the provisions set forth herein. All provisions
of this Article 10 shall be subject to Section 10.12. All
guarantees by each Note Guarantor of Senior Indebtedness of the
Company shall be deemed Senior Indebtedness of each such Note
Guarantor.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy.
------------------------------------
Upon any payment or distribution of the assets of the Company or
any Note Guarantor to creditors upon a total or partial
liquidation or a total or partial dissolution of the Company or
in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or any Note Guarantor
or their respective properties:
(1) holders of Senior indebtedness shall be entitled
to receive payment in full of the Senior Indebtedness before
Securityholders shall be entitled to receive any payment of
principal (or Accreted Value, as the case may be) of or any
liquidated damages or interest on the Securities; and
(2) until the Senior Indebtedness is paid in full, any
distribution to which Securityholders would be entitled but
for this Article 10 shall be made to holders of Senior
Indebtedness as their interests may appear, except that
Securityholders may receive shares of stock and any debt
securities (a) that are subordinated to Senior Indebtedness
to at least the same extent as the Securities and (b) do not
provide for the payment of principal prior to the Stated
Maturity of all Senior Indebtedness.
SECTION 10.03. Default on Senior Indebtedness. Neither
------------------------------
the Company nor any Note Guarantor may pay the principal (or
Accreted Value, as the case may be) of or any liquidated damages
or interest on the Securities or make any deposit pursuant to
-80-
Section 8.01 and may not repurchase, redeem or otherwise retire
any Securities (collectively, "pay the Securities") if (i) any
Senior Indebtedness is not paid when due or (ii) any other
default.on Senior Indebtedness occurs and the maturity of such
Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived
and any such acceleration has been rescinded or (y) such Senior
Indebtedness has been paid in full; provided, however, that the
-------- -------
Company and any Note Guarantor may pay the Securities without
regard to the foregoing if the Company and the Trustee receive
written notice approving such payment from the Representatives of
the Designated Senior Indebtedness with respect to which either
of the events set forth in clause (i) or (ii) has occurred and is
continuing. During the continuance of any default (other than a
default described in clause (i) or (ii) of the preceding
sentence) with respect to any Designated Senior Indebtedness
pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any
applicable grace periods, neither the Company nor any of the Note
Guarantors may pay the Securities for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee
(with a copy to the Company) of written notice (a "Blockage
Notice") of such default from the Representative of such
Designated Senior Indebtedness specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or
earlier if such Payment Blockage Period is terminated (i) by
written notice to the Trustee and the Company from the Person or
Persons who gave such Blockage Notice, (ii) because the default
giving rise to such Blockage Notice is no longer continuing or
(iii) because such Designated Senior Indebtedness has been repaid
in full). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section), unless the
holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may
resume payments on the Securities after the end of such Payment
Blockage Period. Not more than one Blockage Notice may be given
in any consecutive 360-day period, irrespective of the number of
defaults with respect to Designated Senior Indebtedness during
such period; provided, however, that if any Blockage Notice
-------- -------
within such 360-day period is given by or on behalf of any
holders of Designated Senior Indebtedness (other than the Bank
Indebtedness), the Representative of the Bank Indebtedness may
give another Blockage Notice within such period; provided
--------
further, however, that in no event may the total number of days
------- -------
during which any Payment Blockage Period or Periods is in effect
exceed 179 days in the aggregate during any 360 consecutive day
period. For purposes of this Section, no default or event of
default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the
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Designated Senior Indebtedness initiating such Payment Blockage
Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such
Designated Senior Indebtedness, whether or not within a period of
360 consecutive days, unless such default or event of default
shall have been cured or waived for a period of not less than 90
consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If
-------------------------------------
payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee (at the expense of the
Company) shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the
acceleration. If any Designated Senior Indebtedness is
outstanding, neither the Company nor any Note Guarantor may pay
the Securities until five Business days after the Representative
of the Designated Senior Indebtedness receives notice of such
acceleration and, thereafter, may pay the Securities only if this
Article 10 otherwise permits payments at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If
-----------------------------------
a distribution is made to Securityholders that because of this
Article 10 should not have been made to them, the Securityholders
who receive the distribution shall hold it in trust for holders
of Senior Indebtedness and pay it over to them as their interests
may appear.
SECTION 10.06. Subrogation. After all Senior
-----------
Indebtedness is paid in full and until the Securities are paid in
full, Securityholders shall be subrogated to the rights of
holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness. A distribution made under
this Article 10 to holders of Senior Indebtedness which otherwise
would have been made to Securityholders is not, as between the
Company and Securityholders, a payment by the Company on Senior
Indebtedness, or, as between any Note Guarantor and the
Securityholders, a payment by such Note Guarantor on Senior
Indebtedness.
SECTION 10.07. Relative Rights. This Article 10
---------------
defines the relative rights of Securityholders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company or any Note
Guarantor, as the case may be, and Securityholders, the
obligation of the Company or any Note Guarantor, as the case
may be, which is absolute and unconditional, to pay
principal (or Accreted Value, as the case may be) of and any
liquidated damages and interest on the Securities in
accordance with their terms; or
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(2) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default, subject to
the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by
------------------------------------
Company or any Note Guarantor. No right of any holder of Senior
-----------------------------
Indebtedness to enforce the subordination of the Indebtedness
evidenced by the Securities shall be impaired by any act or
failure to act by the Company or any Note Guarantor by the
failure of any of them to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
----------------------------------
Notwithstanding Section 10.03, the Trustee or Paying Agent may
continue to make payments on the Securities and shall not be
charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than
two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article 10. The Company, the
Registrar or co-registrar, the Paying Agent, a Representative or
a holder of Senior Indebtedness may give the notice; provided,
--------
however, that, if an issue of Senior Indebtedness has a
-------
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may
hold Senior Indebtedness with the same rights it would have if it
were not Trustee. The Registrar and coregistrar and the Paying
Agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article 10 with
respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article 10
shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to
-------------------------
Representative. Whenever a distribution is to be made or a
--------------
notice given to holders of Senior Indebtedness, the distribution
may be made and the notice given to their Representative (if
any).
SECTION 10.11. Article 10 Not To Prevent Events of
-----------------------------------
Default or Limit Right To Accelerate. The failure to make a
------------------------------------
payment pursuant to the Securities by reason of any provision in
this Article 10 shall not be construed as preventing the
occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Securityholders or the Trustee to
accelerate the maturity of the Securities.
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SECTION 10.12. Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary
payments from money or the proceeds of U.S. Government
Obligations held in trust under Article 8 by the Trustee for the
payment of principal of and interest on the Securities shall not
be subordinated to the prior payment of any Senior Indebtedness
or subject to the restrictions set forth in this Article 10, and
none of the Securityholders shall be obligated to pay over any
such amount to the Company or any holder of Senior Indebtedness
of the Company or any other creditor of the Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any
------------------------
payment or distribution pursuant to this Article 10, the Trustee
and the Securityholders shall be entitled to rely (i) upon any
order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 10.02 are
pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the
Trustee or to the Securityholders or (iii) upon the
Representatives for the holders of Senior Indebtedness for the
purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company or any Note
Guarantor, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 10. In the
event that the Trustee determines, in good faith, that evidence
is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such
Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 10,
and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of
Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination.
-----------------------------------
Each Securityholder by accepting a Security authorizes and
directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of
Senior Indebtedness as provided in this Article 10 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of
------------------------------------
Senior Indebtedness. The Trustee shall not be deemed to owe any
-------------------
fiduciary duty to the holders of Senior Indebtedness and shall
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not be liable to any such holders if it shall mistakenly pay over
or distribute to Securityholders or the Company or any other
Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 10 or
otherwise.
SECTION 10.16. Reliance by Holders of Senior
-----------------------------
Indebtedness on Subordination Provisions. Each Securityholder by
----------------------------------------
accepting a Security acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to
acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE 11
Note Guarantees
---------------
SECTION 11.01. Note Guarantees. Each Note Guarantor
---------------
hereby jointly and severally unconditionally and irrevocably
guarantees on a senior subordinated basis to each Holder and to
the Trustee and its successors and assigns (a) the full and
punctual payment of principal (or Accreted Value, as the case may
be) of and interest on the Securities when due, whether at
maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Company under this Indenture
(including obligations to the Trustee) and the Securities and (b)
the full and punctual performance within applicable grace periods
of all other obligations of the Company under this Indenture and
the Securities (all the foregoing being hereinafter collectively
called the "Obligations"). Each Note Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in
part, without notice or further assent from each such Note
Guarantor, and that each such Note Guarantor shall remain bound
under this Article 11 notwithstanding any extension or renewal of
any Obligation.
Each Note Guarantor waives presentation to, demand of,
payment from and protest to the Company of any of the Obligations
and also waives notice of protest for nonpayment. Each Note
Guarantor waives notice of any default under the Securities or
the obligations. The obligations of each Note Guarantor
hereunder shall not be affected by (a) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any
right or remedy against the Company or any other Person under
this Indenture, the Securities or any other agreement or
-85-
otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms
or provisions of this Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or
the Trustee for the Obligations or any of them; (e) the failure
of any Holder or Trustee to exercise any right or remedy against
any other guarantor of the Obligations; or (f) any change in the
ownership of such Note Guarantor, except as provided in Section
11.02(b).
Each Note Guarantor further agrees that its Note
Guarantee herein constitutes a guarantee of payment, performance
and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder
or the Trustee to any security held for payment of the
Obligations.
The Note Guarantee of each Note Guarantor is, to the
extent and in the manner set forth in Article 10, subordinated
and subject in right of payment to the prior payment in full of
the principal of and premium, if any, and interest on all Senior
Indebtedness of such Note Guarantor and this Note Guarantee is
made subject to such provisions of this Indenture.
The obligations of each Note Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality
or unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each
Note Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver
or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or
by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent
vary the risk of any Note Guarantor or would otherwise operate as
a discharge of any Note Guarantor as a matter of law or equity.
Each Note Guarantor further agrees that its Note
Guarantee herein shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof,
of principal (or Accreted Value, as the case may be) of or
interest on any Obligation is rescinded or must otherwise be
restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
-86-
In furtherance of the foregoing and not in limitation
of any other right which any Holder or the Trustee has at law or
in equity against any Note Guarantor by virtue hereof, upon the
failure of the Company to pay the principal (or Accreted Value,
as the case may be) of or interest on any Obligation when and as
the same shall become due, whether at maturity, by acceleration,
by redemption or otherwise, or to perform or comply with any
other Obligation, each Note Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee
an amount equal to the sum of (i) the unpaid principal (or
Accreted Value, as the case may be) amount of such obligations,
(ii) accrued and unpaid interest on such Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary
Obligations of the Company to the Holders and the Trustee.
Each Note Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until payment in
full of all Obligations. Each Note Guarantor further agrees
that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guarantied hereby may be accelerated as provided in Article 6 for
the purposes of any Note Guarantor's Note Guarantee herein,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such
Obligations (whether or not due and payable) shall forthwith
become due and payable by such Note Guarantor for the purposes of
this Section.
Each Note Guarantor also agrees to pay any and all
costs and expenses (including reasonable attorneys' fees)
incurred by the Trustee or any Holder in enforcing any rights
under this Section.
SECTION 11.02. Limitation on Liability. (a) Any term or
-----------------------
provision of this Indenture to the contrary notwithstanding, the
maximum, aggregate amount of the obligations guaranteed hereunder
by any Note Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it
relates to any Note Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer.
(b) This Note Guarantee as to any Note Guarantor shall
terminate and be of no further force or effect upon the sale or
other transfer (i) by such Note Guarantor of all or substantially
all of its assets or (ii) by the Company of all of its stock or
other equity interests in such Note Guarantor, to a Person that
is not an Affiliate of the Company; provided, however, that such
-------- -------
sale or transfer shall be deemed to constitute an Asset
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Disposition and the Company shall comply with its obligations
under Section 4.06.
SECTION 11.03. Successors and Assigns. This Article 11
----------------------
shall be binding upon each Note Guarantor and its successors and
assigns and shall enure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and
be vested in such transferee or assignee, all subject to the
terms and conditions of this Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a
---------
delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11
shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of
the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 11 at law, in
equity, by statute or otherwise.
SECTION 11.05. Modification. No modification,
------------
amendment or waiver of any provision of this Article 11, nor the
consent to any departure by any Note Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and
signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Note Guarantor in any
case shall entitle such Note Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 11.06. Execution of Supplemental Indenture for
---------------------------------------
Future Note Guarantors. Each Subsidiary which is required to
----------------------
become a Note Guarantor pursuant to Section 4.14 shall promptly
execute and deliver to the Trustee a supplemental indenture in
the form of Exhibit D hereto pursuant to which such Subsidiary
shall become a Note Guarantor under this Article 11 and shall
guarantee the Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall
deliver to the Trustee an Opinion of Counsel to the effect that
such supplemental indenture has been duly authorized, executed
and delivered by such Subsidiary and that, subject to the
application of bankruptcy, insolvency, moratorium, fraudulent
conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principals of equity,
whether considered in a proceeding at law or in equity, the Note
Guarantee of such Note Guarantor is a legal, valid and binding
obligation of such Note Guarantor, enforceable against such Note
Guarantor in accordance with its terms.
-88-
ARTICLE 12
Miscellaneous
-------------
SECTION 12.01. Trust Indenture Act Controls. If any
----------------------------
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 12.02. Notices. Any notice or communication
-------
shall be in writing and delivered in person or mailed by first-
class mail addressed as follows:
if to the Company or any Note Guarantor:
Six Flags Theme Parks Inc.
400 Interpace Parkway, Building C
Parsippany, New Jersey 07054
Attention of: General Counsel
if to the Trustee:
United States Trust Company of New York
114 W. 47th Street
New York, NY 10036
Attention of: Corporate Trust Division
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Securityholder
shall be mailed to the Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar
and shall be sufficiently given 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 12.03. Communication by Holders with Other
-----------------------------------
Holders. Securityholders may communicate pursuant to TIA
-------
-89-
(Section) 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection
of TIA (Section) 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
----------------------------------------
Precedent. Upon any request or application by the Company to the
---------
Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably 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 in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 12.05. Statements Required in Certificate or
-------------------------------------
Opinion. Each certificate or opinion with respect to compliance
-------
with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion
of such individual, such covenant or condition has been
complied with.
SECTION 12.06. When Securities Disregarded. 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 by any Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on
-90-
any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time
shall be considered in any such determination.
SECTION 12.07. Rules by Trustee, Paying Agent and
----------------------------------
Registrar. The Trustee may make reasonable rules for action by
---------
or a meeting of Securityholders. The Registrar and the Paying
Agent may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is a
--------------
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York. If a payment date
is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION 12.09. Governing Law. This Indenture and the
-------------
Securities shall be governed by, and construed in accordance
with, the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be
required thereby.
SECTION 12.10. No Recourse Against Others. A director,
--------------------------
officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation.
By accepting a Security, each Securityholder shall waive and
release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 12.11. Successors. All agreements of the
----------
Company and each Note Guarantor in this Indenture and the
Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.12. Multiple Originals. The parties may
------------------
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 12.13. Table of Contents; Headings. The table
---------------------------
of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience
of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or
provisions hereof.
-91-
IN WITNESS WHEREOF, the parties have caused this Indenture
to be duly executed as of the date first written above.
SIX FLAGS THEME PARKS INC.,
by
/s/ Andrew J. Barkley
-------------------------------------------------------
Name: Andrew J. Barkley
Title: Senior Vice President, Finance
Treasurer and Assistant Secretary
SIX FLAGS OVER GEORGIA, INC.,
by
/s/ Paul M. McNicol
-------------------------------------------------------
Name: Paul M. McNicol
Title: Senior Vice President
Secretary and General Counsel
SIX FLAGS OVER TEXAS, INC.,
by
/s/ Paul M. McNicol
-------------------------------------------------------
Name: Paul M. McNicol
Title: Senior Vice President
Secretary and General Counsel
S.F. PARTNERSHIP by SFTP Inc.,
as General Partner
by
/s/ Andrew J. Barkley
-------------------------------------------------------
Name: Andrew J. Barkley
Title: Senior Vice President
Treasurer and Secretary
UNITED STATES TRUST COMPANY OF NEW YORK,
by
/s/ Illegible
-------------------------------------------------------
Name: Illegible
Title: Illegible
-92-
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER 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 UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000, 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, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF
THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS
ORIGINAL ISSUE DISCOUNT. FOR FURTHER INFORMATION, PLEASE
CONTACT THE SENIOR VICE PRESIDENT, FINANCE, OF SIX FLAGS
THEME PARKS INC. AT (201) 402-8100.
-2-
No. Principal Amount at Stated Maturity $285,000,000
CUSIP NO. 83001WAA2
12-1/4% Senior Subordinated Discount. Note due 2005
Six Flags Theme Parks Inc., a Delaware
corporation, promises to pay to or registered
assigns, the principal sum of Dollars on June
15, 2005.
Interest Payment Dates: June 15 and December 15
commencing December 15, 1998.
Record Dates: June 1 and December 1 commencing December
1, 1998 (whether or not a business day).
Additional provisions of this Security are set
forth on the other side of this Security.
Dated: SIX FLAGS THEME PARKS INC.,
by
--------------------------
Senior Vice President
and Secretary
---------------------------
Senior Vice President
and Treasurer
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY
OF NEW YORK
as Trustee, certifies [Seal]
that this is one of
the Securities referred to in the Indenture.
by
----------------------
Authorized Signatory
-3-
[FORM OF REVERSE SIDE OF INITIAL NOTE)
12-1/4% Senior Subordinated Note due 2005
1. Interest
--------
SIX FLAGS THEME PARKS INC., a Delaware corporation
(such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called 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 semiannually on June 15
and December 15 of each year commencing December 15, 1998.
Interest on the Securities will accrue from the most recent date
to which interest has been paid on the Securities or, if no
interest has been paid, from June 15, 1998. Interest and
liquidated damages will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on
overdue principal at the rate borne by the Securities plus 1% per
annum.
The Accreted Value of the Securities shall increase on
a daily basis at the rate of 12-1/4% per annum compounded semi-
annually on each June 15 and December 15 through and until June
15, 1998.
The Company and the Note Guarantors will use all
reasonable efforts to have the Exchange Offer Registration
Statement and, if applicable, a Shelf Registration Statement
(each a "Registration Statement") declared effective by the
Commission as promptly as practicable after the filing thereof.
If (i) the applicable Registration Statement is not filed with
the Commission on or prior to 60 days after the Issue Date, (ii)
the Exchange Offer Registration Statement is not declared
effective and the Exchange offer is not consummated on or prior
to 180 days after the Issue Date, or, as the case may be, the
Shelf Registration Statement is not declared effective within 180
days after the Issue Date, or (iii) the Shelf Registration
Statement is filed and declared effective within 180 days after
the Issue Date but shall thereafter cease to be effective (at any
time that the Company is obligated to maintain the effectiveness
thereof) without being succeeded within 60 days by an additional
Registration Statement filed and declared effective (each such
event referred to in clauses (i) through (iii), a "Registration
Default"), the Company will pay liquidated damages in respect of
all Transfer Restricted Securities, in an amount equal to 1.0%
per annum, accrued weekly, of the Accreted Value of the
-4-
Securities as of the beginning of each such week of the
Securities constituting Transfer Restricted Securities until the
applicable Registration Default is cured. Following the cure of
all Registration Defaults, the accrual of liquidated damages will
cease. The Company will pay liquidated damages, if any,
semiannually on June 15 and December 15 of each year.
2. Method of Payment
-----------------
The Company will pay interest (except defaulted
interest) on and liquidated damages, if any, in respect of the
Securities to the Persons who are registered holders of
Securities at the close of business on the June 1 or December 1,
whether or not a business day (each a "record date"), next
preceding the applicable payment date even if Securities are
cancelled after the record date and on or before the applicable
payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments (or, as the case may be,
payments of the Accreted Value). The Company will pay principal
(or, as the case may be, the Accreted Value) and interest in
money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the
Company may pay principal (or, as the case may be, the Accreted
Value) and interest by check payable in such money. It may mail
an interest check to a Holder's registered.address.
3. Paying Agent and Registrar
--------------------------
Initially, United States Trust Company of New York, a
New York corporation (the "Trustee"), will act as Paying Agent
and Registrar. The Company may appoint and change any Paying
Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture
dated as of June 23, 1995 (the "Indenture"), among the Company;
Six Flags Over Georgia, Inc., Six Flags Over Texas, Inc., and
S.F. Partnership (collectively, the "Note Guarantors"); and the
Trustee. 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. (Section)(Section)
------
77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those
terms.
-5-
The Securities are general unsecured obligations of the
Company limited to $285,000,000 aggregate principal amount
(subject to Section 2.07 of the Indenture). This Security is one
of the Initial Notes referred to in the Indenture. The
Securities include the Initial Notes and any Exchange Notes
issued in exchange for the Initial Notes pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated
as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Company and certain of its Subsidiaries, the
payment of dividends and other distributions on the Capital Stock
of the Company and certain of its Subsidiaries, the purchase or
redemption of Capital Stock of the Company and of certain Capital
Stock of such Subsidiaries, certain purchases or redemptions of
Subordinated Obligations, the sale or transfer of assets and
Subsidiary stock, the issuance or sale of Capital Stock of
Restricted Subsidiaries, the business activities and investments
of the Company and certain of its Subsidiaries and transactions
with Affiliates. In addition, the Indenture limits the ability
of the Company and certain of its Subsidiaries to restrict
distributions and dividends from Subsidiaries.
To secure the due and punctual payment of the principal
(or, as the case may be, the Accreted Value) and liquidated
damages and interest, if any, on the Securities and all other
amounts payable by the Company under the Indenture and the
Securities when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms
of the Securities and the Indenture, the Note Guarantors have
unconditionally guaranteed the obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in this paragraph 5, the Securities
will not be redeemable prior to June 15, 2000. On and after such
date, the Securities will be redeemable, at the Company's option,
in whole or in part, upon not less than 30 nor more than 60 days'
prior notice mailed by first class mail to each Holder's
registered address, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued
interest and liquidated damages (if any) to the redemption date
(subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on June
15 of the years set forth below:
-6-
Year Redemption Price
---- ----------------
2000 . . . . . . . . . . . . . . 106.0%
2001 . . . . . . . . . . . . . . 104.0%
2002 . . . . . . . . . . . . . . 102.0%
2003 and thereafter . . . . . . 100.0%
Notwithstanding the foregoing, at any time and from
time to time prior to June 15, 1998, the Company may, subject to
certain requirements, redeem.in the aggregate up to 35% of the
original aggregate principal amount of the Securities with the
Net Cash Proceeds of one or more Public Equity Offerings by the
Company, Holdings or SFEC following which there is a Public
Market, at a redemption price of 112.25% of the Accreted Value of
the Securities to be redeemed as of the redemption date (subject
to the right of Holders of record on the relevant record date to
receive interest and any liquidated damages due on the relevant
interest payment date); provided, however, that at least 65% of
-------- -------
the original aggregate principal amount of the Securities must
remain outstanding after each such redemption.
6. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address.
Securities in denominations of principal amount larger than
$1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other
conditions are satisfied, on and after such date interest and
liquidated damages cease to accrue on such Securities (or such
portions thereof) called for redemption.
7. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will
have the right to cause the Company to repurchase all or any part
of the Securities of such Holder at a repurchase price equal to
101% of the principal amount thereof plus accrued and unpaid
interest, if any, or prior to the third anniversary of the Issue
Date, 101% of the Accreted Value thereof, in either case to and
-7-
including the date of repurchase as provided in, and subject to
the terms of, the Indenture.
8. Subordination
-------------
The Securities are subordinated to Senior Indebtedness,
as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must paid before the Securities
may be paid. The Company and the Note Guarantors agree, and each
Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and each
authorizes the Trustee to give them effect and appoints the
Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons
in denominations of principal amount of $1,000 and whole
multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to,be
redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment
date.
10. Persons Deemed Owners
---------------------
The registered holder of this Security may be treated
as the owner of it for all purposes.
11. Unclaimed Money
---------------
If money for the payment of principal, Accreted Value,
interest or liquidated damages remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law
designates another person. After any such payment, Holders
entitled to the money must look only to the Company and not to
the Trustee for payment.
-8-
12. Defeasance
----------
Subject to certain conditions, the Company at any time
may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money
or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case
may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended
with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities and (ii) any
default or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in principal
amount of the outstanding Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Note Guarantors and the Trustee
may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of
the Indenture, or to provide for uncertificated Securities in
addition to or in place of certificated Securities, or to limit
or terminate the benefits of holders of Senior Indebtedness under
the subordination provisions of the Indenture or to add
guarantees with respect to the Securities or to secure the
Securities, or to add additional covenants or surrender rights or
powers conferred on the Company, or to comply with any
requirements of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Notes.
14. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i)
default for 30 days in payment of interest on the Securities;
(ii) default in payment of principal (or, as the case may be, the
Accreted Value) on the Securities at maturity, upon redemption
pursuant to paragraph 5 of the Securities, upon required
repurchase, upon declaration or otherwise; (iii) failure by the
Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time;
(iv) certain accelerations (including failure to pay within any
grace period after final maturity) of other Indebtedness of the
Company or Subsidiaries if the amount accelerated (or so unpaid)
exceeds $10 million; (v) certain events of bankruptcy or
insolvency with respect to the Company or any Significant
Subsidiary; and (vi) certain judgments or decrees for the payment
-9-
of money in excess of $10 million. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities
to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence
of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it
receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of
any continuing Default (except a Default in payment of principal
or interest) if it determines that withholding notice is in their
interest.
15. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, 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 and collect obligations owed to it by the
Company or its affiliates and may otherwise deal with the Company
or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such,
of the Company or the Trustee shall not have any liability for
any obligations 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. By accepting a Security,
each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of
the Securities.
17. Authentication
--------------
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually
signs the certificate of authentication on the other side of this
Security.
-10-
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in
common) TEN ENT (=tenants by the entirety) JT TEN (=joint tenants
with rights of survivorship and not as tenants in common) CUST
(=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification procedures the Company has caused
CUSIP numbers to be printed on the Securities and has directed
the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Securityholders. No representation is made as to
the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any
Securityholder upon written request and without charge
to the Securityholder a copy of the Indenture which has
in it the text of this Security in larger type.
Requests may be made to: Six Flags Theme Parks Inc.,
400 Interpace Parkway, Building C, Parsippany, New
Jersey 07054
Attention of: Secretary
-11-
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
-----------------------------------------------------------------
Date: Your Signature:
--------------- --------------------------
Signature Guarantee:
--------------------------------------------
(Signature must be guaranteed)
-----------------------------------------------------------------
Sign exactly as your name appears on the other side of this
Security.
In connection with any transfer or exchange of any of the
Securities evidenced by this certificate occurring prior to the
date that is three years after the later of the date of original
issuance of such Securities and the last date, if any, on which
such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
(1) acquired for the undersigned's own account,
without transfer (in satisfaction of Section
2.06(a)(ii)(A) or Section 2.06(d)(i)(A) of
the Indenture); or
(2) transferred to the Company; or
(3) transferred pursuant to and in compliance
with Rule 144A under the Securities Act of
1933; or
(4) transferred pursuant to and in compliance
with Regulation S under the Securities Act of
1933; or
-12-
(5) transferred to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933),
that has furnished to the Trustee a signed
letter containing certain representations and
agreements (the form of which letter appears
as Exhibit C to the Indenture; or
(6) transferred pursuant to another available
exemption from the registration requirements
of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in
the name of any person other than the registered holder thereof;
provided, however, that if box (4), (5) or (6) is checked, the
-------- -------
Trustee or the Company may require, prior to registering any such
transfer of the Securities, in their sole discretion, such legal
opinions, certifications and other information as the Trustee or
Company has reasonably requested 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
of 1933, such as the exemption provided by Rule 144 under such
Act.
----------------------------------
Signature
Signature Guarantee:
------------------------- -----------------------------------
Signature
(Signature must be guaranteed)
-----------------------------------------------------------------
-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check
the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the
Indenture, state the amount in principal amount (must be integral
multiple of $1,000): $
Date: Your Signature
---------------- ----------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee: ------------------------------------------
(Signature must be guaranteed)
-14-
EXHIBIT C
Transferee Letter of Representation
Six Flags Theme Parks Inc.
c/o United States Trust Company of New York
114 W. 47th Street
New York, NY 10036
Ladies and Gentlemen:
This certificate is delivered to request a transfer of
$ principal amount of 12-1/4% Senior Subordinated
Discount Notes due 2005 (the "Notes") of Six Flags Theme Parks
Inc. (the "Company").
Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
Name:
---------------------------------------
Address:
-------------------------------------
Taxpayer ID Number:
-------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the "Securities Act"))
purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring
the Notes not with a view to, or for offer or sale in
connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risk of our investment in the
Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been
registered under 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
Notes to offer, sell or otherwise transfer such Notes prior
to the date which is three 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 Notes (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) in a transaction complying
with the requirements of 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
under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an
institutional "accredited investor", in each case in a
minimum principal amount of Notes of $250,000 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 in 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 Notes 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 Company and the Trustee,
which shall provide, among other things, that the transferee
is an institutional "accredited investor" within the meaning
of Rule 601(a)(1), (2), (3) or (7) under the Securities Act
and that it is acquiring such Notes for investment purposes
and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer
prior to the Resale Termination Date of the Notes pursuant
to clause (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:
----------------------
BY
------------------------------
-16-
EXHIBIT B
(FORM OF FACE OF EXCHANGE NOTE]
[Global Securities Legend)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE
DISCOUNT. FOR FURTHER INFORMATION, PLEASE CONTACT THE SENIOR
VICE PRESIDENT, FINANCE, OF SIX FLAGS THEME PARKS INC. AT (201)
402-8100.
No. Principal Amount at Stated Maturity $285,000,000
CUSIP NO. 83001WAA2
12-1/4% Series A Senior Subordinated Discount Note due 2005
Six Flags Theme Parks Inc., a Delaware corporation,
promises to pay to , or registered assigns, the
principal sum of Dollars on June 15, 2005.
Interest Payment Dates: June 15 and December 15
commencing December 15, 1998.
Record Dates: June 1 and December 1 commencing
December 1, 1998 (whether or not a business day).
Additional provisions of this Security are set forth on
the other side of this Security.
-17-
Dated: SIX FLAGS THEME PARKS INC.,
by
---------------------------
Senior Vice President
and Secretary
---------------------------
Senior Vice President
and Treasurer
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY
OF NEW YORK
as Trustee, certifies [Seal]
that this is one of
the Securities referred to in the Indenture.
by
-----------------------------
Authorized Signatory
-18-
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
12-1/4% Series A Senior Subordinated Note due 2005
1. Interest
--------
SIX FLAGS THEME PARKS INC., a Delaware corporation
(such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called 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 semiannually on June 15
and December 15 of each year commencing December 15, 1998.
Interest on the Securities will accrue from the most recent date
to which interest has been paid on the Securities or, if no
interest has been paid, from June 15, 1998. Interest and
liquidated damages will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on
overdue principal at the rate borne by the Securities plus 1% per
annum.
The Accreted Value of the Securities shall increase on a
daily basis at the rate of 12-1/4% per annum compounded semi-
annually on each June 15 and December 15 through and until June
15, 1998.
The Company and the Note Guarantors will use all
reasonable efforts to have the Exchange Offer Registration
Statement and, if applicable, a Shelf Registration Statement
(each a "Registration Statement") declared effective by the
Commission as promptly as practicable after the filing thereof.
If (i) the applicable Registration Statement is not filed with
the Commission on or prior to 60 days after the Issue Date, (ii)
the Exchange Offer Registration Statement is not declared
effective and the Exchange Offer is not consummated on or prior
to 180 days after the Issue Date, or, as the case may be, the
Shelf Registration Statement is not declared effective within 180
days after the Issue Date, or (iii) the Shelf Registration
Statement is filed and declared effective within 180 days after
the Issue Date but shall thereafter cease to be effective (at any
time that the Company is obligated to maintain the effectiveness
thereof) without being succeeded within 60 days by an additional
Registration Statement filed and declared effective (each such
event referred to in clauses (i) through (iii), a "Registration
Default"), the Company will pay liquidated damages in respect of
all Transfer Restricted Securities, in an amount equal to 1.0%
per annum, accrued weekly, of the Accreted Value of the
-19-
Securities as of the beginning of each such week of the
Securities constituting Transfer Restricted Securities until the
applicable Registration Default is cured. Following the cure of
all Registration Defaults, the accrual of liquidated damages will
cease. The Company will pay liquidated damages, if any,
semiannually on June 15 and December 15 of each year.
2. Method of Payment
-----------------
The Company will pay interest (except defaulted
interest) on and liquidated damages, if any, in respect of the
Securities to the Persons who are registered holders of
Securities at the close of business on the June 1 or December 1,
whether or not a business day (each a "record date"), next
preceding the applicable payment date even if Securities are
cancelled after the record date and on or before the applicable
payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments (or, as the case may be,
payments of the Accreted Value). The Company will pay principal
(or, as the case may be, the Accreted Value) and interest in
money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the
Company may pay principal (or, as the case may be, the Accreted
Value) and interest by check payable in such money. It may mail
an interest check to a Holder's registered address.
3. Paying Agent and Registrar
--------------------------
Initially, United States Trust Company of New York, a
New York corporation (the "Trustee"), will act as Paying Agent
and Registrar. The Company may appoint and change any Paying
Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture
dated as of June 23, 1995 (the "Indenture"), among the Company;
Six Flags Over Georgia, Inc., Six Flags Over Texas, Inc., and
S.F. Partnership (collectively, the "Note Guarantors"); and the
Trustee. 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. (Section)(Section)
------
77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those
terms.
-20-
The Securities are general unsecured obligations of the
Company limited to $285,000,000 aggregate principal amount
(subject to Section 2.07 of the Indenture). This Security is one
of the Exchange Notes referred to in the Indenture. The
Securities include the Initial Notes and any Exchange Notes
issued in exchange for the Initial Notes pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated
as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Company and certain of its Subsidiaries, the
payment of dividends and other distributions on the Capital Stock
of the Company and certain of its Subsidiaries, the purchase or
redemption of Capital Stock of the Company and of certain Capital
Stock of such Subsidiaries, certain purchases or redemptions of
Subordinated Obligations, the sale or transfer of assets and
Subsidiary stock, the issuance or sale of Capital Stock of
Restricted Subsidiaries, the business activities and investments
of the Company and certain of its Subsidiaries and transactions
with Affiliates. In addition, the Indenture limits the ability
of the Company and certain of its Subsidiaries to restrict
distributions and dividends from Subsidiaries.
To secure the due and punctual payment of the principal
(or, as the case may be, the Accreted Value) and liquidated
damages and interest, if any, on the Securities and all other
amounts payable by the Company under the Indenture and the
Securities when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms
of the Securities and the Indenture, the Note Guarantors have
unconditionally guaranteed the Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in this paragraph 5, the Securities
will not be redeemable prior to June 15, 2000. On and after such
date, the Securities will be redeemable, at the Company's option,
in whole or in part, upon not less than 30 nor more than 60 days'
prior notice mailed by first class mail to each Holder's
registered address, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued
interest and liquidated damages (if any) to the redemption date
(subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on June
15 of the years set forth below:
-21-
Year Redemption Price
---- ----------------
2000 . . . . . . . . . . . . . . . 106.0%
2001 . . . . . . . . . . . . . . . 104.0%
2002 . . . . . . . . . . . . . . . 102.0%
2003 and thereafter . . . . . . . 100.0%
Notwithstanding the foregoing, at any time and from
time to time prior to June 15, 1998, the Company may, subject to
certain requirements, redeem in the aggregate up to 35% of the
original aggregate principal amount of the Securities with the
Net Cash Proceeds of one or more Public Equity Offerings by the
Company, Holdings or SREC following which there is a Public
Market, at a redemption price of 112.25% of the Accreted Value of
the Securities to be redeemed as of the redemption date (subject
to the right of Holders of record on the relevant record date to
receive interest and any liquidated damages due on the relevant
interest payment date); provided, however, that at least 65% of
-------- -------
the original aggregate principal amount of the Securities must
remain outstanding after each such redemption.
6. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address.
Securities in denominations of principal amount larger than
$1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other
conditions are satisfied, on and after such date interest and
liquidated damages cease to accrue on such Securities (or such
portions thereof) called for redemption.
7. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will
have the right to cause the Company to repurchase all or any part
of the Securities of such Holder at a repurchase price equal to
101% of the principal amount thereof plus accrued and unpaid
interest, if any, or prior to the third anniversary of the Issue
Date, 101% of the Accreted Value thereof, in either case to and
including the date of repurchase as provided in, and subject to
the terms of, the Indenture.
-22-
8. Subordination
-------------
The Securities are subordinated to Senior Indebtedness,
as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must paid before the Securities
may be paid. The Company and the Note Guarantors agree, and each
Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and each
authorizes the Trustee to give them effect and appoints the
Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons
in denominations of principal amount of $1,000 and whole
multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment
date.
10. Persons Deemed Owners
---------------------
The registered holder of this Security may be treated
as the owner of it for all purposes.
11. Unclaimed Money
---------------
If money for the payment of principal, Accreted Value,
interest or liquidated damages remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law
designates another person. After any such payment, Holders
entitled to the money must look only to the Company and not to
the Trustee for payment.
12. Defeasance
----------
Subject to certain conditions, the Company at any time
may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money
-23-
or U.S. Government obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case
may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended
with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities and (ii) any
default or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in principal
amount of the outstanding Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Note Guarantors and the Trustee
may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of
the Indenture, or to provide for uncertificated Securities in
addition to or in place of certificated Securities, or to limit
or terminate the benefits of holders of Senior Indebtedness under
the subordination provisions of the Indenture or to add
guarantees with respect to the Securities or to secure the
Securities, or to add additional covenants or surrender rights or
powers conferred on the Company, or to comply with any
requirements of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Notes.
14. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i)
default for 30 days in payment of interest on the Securities;
(ii) default in payment of principal (or, as the case may be, the
Accreted Value) on the Securities at maturity, upon redemption
pursuant to paragraph 5 of the Securities, upon required
repurchase, upon declaration or otherwise; (iii) failure by the
Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time;
(iv) certain accelerations (including failure to pay within any
grace period after final maturity) of other Indebtedness of the
Company or Subsidiaries if the amount accelerated (or so unpaid)
exceeds $10 million; (v) certain events of bankruptcy or
insolvency with respect to the Company or any Significant
Subsidiary; and (vi) certain judgments or decrees for the payment
of money in excess of $10 million. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities
to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the
-24-
Securities being due and payable immediately upon the occurrence
of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it
receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of
any continuing Default (except a Default in payment of principal
or interest) if it determines that withholding notice is in their
interest.
15. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, 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 and collect obligations owed to it by the
Company or its affiliates and may otherwise deal with the Company
or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such,
of the Company or the Trustee shall not have any liability for
any obligations 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. By accepting a Security,
each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of
the Securities.
17. Authentication
--------------
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually
signs the certificate of authentication on the other side of this
Security.
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in
common) TEN ENT (=tenants by the entirety) JT TEN (=joint tenants
-25-
with rights of survivorship and not as tenants in common) CUST
(=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification procedures the
Company has caused CUSIP numbers to be printed on the Securities
and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY
SECURITYHOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE
TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH HAS
IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE.
REQUESTS MAY BE MADE TO: SIX FLAGS THEME PARKS INC.,
400 INTERPACE PARKWAY, BUILDING C, PARSIPPANY, NEW
JERSEY 07054
ATTENTION OF: SECRETARY
-26-
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
-----------------------------------------------------------------
Date: Your Signature:
---------------- --------------------------
Signature Guarantee:
----------------------------------
(Signature must be guaranteed)
-----------------------------------------------------------------
Sign exactly as your name appears on the other side of this
Security.
-27-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check
the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the
Indenture, state the amount in principal amount (must be integral
multiple of $1,000): $
Date: Your Signature
--------------- ------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
-------------------------------------------
(Signature must be guaranteed)
-28-
EXHIBIT C
Transferee Letter of Representation
Six Flags Theme Parks Inc.
c/o United States Trust Company of New York
114 W. 47th Street
New York, NY 10036
Ladies and Gentlemen:
This certificate is delivered to request a transfer of
$ principal amount of 12-1/4% Senior Subordinated Discount
Notes due 2005 (the "Notes") of Six Flags Theme Parks Inc. (the
"Company").
Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
Name:
------------------------------------------
Address:
--------------------------------------
Taxpayer ID Number:
----------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the "Securities Act"))
purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring
the Notes not with a view to, or for offer or sale in
connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risk of our investment in the
Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been
registered under 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
Notes to offer, sell or otherwise transfer such Notes prior
-29-
to the date which is three 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 Notes (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) in a transaction complying
with the requirements of 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
under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an
institutional "accredited investor", in each case in a
minimum principal amount of Notes of $250,000 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 in 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 Notes 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 Company and the Trustee,
which shall provide, among other things, that the transferee
is an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
and that it is acquiring such Notes for investment purposes
and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer
prior to the Resale Termination Date of the Notes pursuant
to clause (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:
------------------
BY
--------------------------
-30-
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture"), dated as of , between
-----------,
(the "Note Guarantor"), a subsidiary
-----------
of Six Flags Theme Parks Inc. (or its successor),
a Delaware corporation (the "Company"), and United
States Trust Company of New York, a New York
corporation, as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated as
of June 23, 1995, providing for the issuance of an aggregate
principal amount of $285,000,000 of 12-1/4% Senior Subordinated
Discount Notes due 2005 (the "Initial Notes") and, if and when
issued in exchange for Initial Notes, the Company's 12-1/4%
Series A Senior Subordinated Discount Notes due 2005 (the
"Exchange Notes" and, together with the Initial Notes, the
"Securities");
WHEREAS, Section 4.14 of the Indenture provides that
under certain circumstances the Company is required to cause the
Note Guarantor to execute and deliver to the Trustee a
supplemental indenture pursuant to which the Note Guarantor shall
unconditionally guarantee all of the Company's obligations under
the Securities pursuant to a Note Guarantee on the terms and
conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental
Indenture;
NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which
is hereby acknowledged, the Note Guarantor and the Trustee
mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
-31-
1. Definitions. (a) Capitalized terms used herein
-----------
without definition shall have the meanings assigned to them in
the Indenture.
(b) For all purposes of this Supplement, except as
otherwise herein expressly provided or unless the context
otherwise requires: (i) the terms and expressions used herein
shall have the same meanings as corresponding terms and
expressions used in the Indenture; and (ii) the words "herein,"
"hereof" and "hereby" and other words of similar import used in
this Supplement refer to this supplement as a whole and not to
any particular section hereof.
2. Agreement to Guarantee. The Note Guarantor hereby
----------------------
agrees, jointly and severally with all other Note Guarantors, to
guarantee the Company's obligations under the Securities on the
terms and subject to the conditions set forth in Section 11 of
the Indenture and to be bound by all other applicable provisions
of the Indenture. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full
force and effect. This Supplemental Indenture shall form a part
of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be
bound hereby.
3. Governing Law. This Supplemental Indenture shall
-------------
be governed by, and construed in accordance with, the laws of the
State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
4. Trustee Makes No Representation. The Trustee
-------------------------------
makes no representation as to the validity or sufficiency of this
Supplemental Indenture;
5. Counterparts. The parties may sign any number of
------------
copies of this Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same
agreement.
6. Effect of Headings. The Section headings herein
------------------
are for convenience only and shall not effect the construction
thereof.
-32-
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first
above written.
[NOTE GUARANTOR],
by
-------------------------------
Name:
Title:
SIX FLAGS THEME PARKS INC.,
by
-------------------------------
Name:
Title:
SIX FLAGS OVER GEORGIA, INC.,
by
-------------------------------
Name:
Title:
SIX FLAGS OVER TEXAS, INC.,
by
-------------------------------
Name:
Title:
S.F. PARTNERSHIP,
by SFTP Inc., as General
Partner
by
-------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK,
by
-------------------------------
Name:
Title:
-33-