1
EXHIBIT 99.5
OUTDOOR SYSTEMS, INC.,
as Issuer,
AND
THE SUBSIDIARY GUARANTORS
named herein
AND
[_____________________________________],
as Trustee
_________________
INDENTURE
Dated as of ,
________________
$[_______________]
Senior Subordinated Notes
due 2006
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.10; 8.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08; 8.10; 13.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.06; 13.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07; 5.09; 13.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02; 13.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02; 13.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.05; 13.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.01
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.01
- ----------------------
N.A. means Not Applicable NOTE: This Cross-Reference Table shall not, for any
purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of TIA . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 1.03. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.02. Execution and Authentication; PIK
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.04. Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.05. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.08. Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.09. Treasury Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.10. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.13. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.02. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.06. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE FOUR
SUBORDINATION
SECTION 4.01. Securities Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.02. Suspension of Payment When Senior
Indebtedness in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 4.03. Securities Subordinated to Prior
Payment of All Senior Indebtedness
on Dissolution, Liquidation or
Reorganization of Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.04. Securityholders to Be Subrogated to
Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.05. Obligations of the Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.06. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.07. Application by Trustee of Assets
Deposited with It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.08. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.09. Securityholders Authorize Trustee to
Effectuate Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.10. Right of Trustee to Hold Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.11. No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.12. No Fiduciary Duty of Trustee to
Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.03. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.04. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.05. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.06. Maintenance of Properties and
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.07. Compliance Certificate; Notice of
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.08. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.09. Commission Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.10. Waiver of Stay, Extension or Usury
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.11. Limitation on Transactions with
Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.12. Limitation on Incurrences of
Additional Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 5.13. Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 5.14. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.15. Limitation on Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.16. Offer to Repurchase Securities with
Net Cash Proceeds of Certain Asset
Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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SECTION 5.17. Guarantees of Certain Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.18. Limitation on Preferred Stock of
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.19. Limitation on Other Senior
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 5.20. Offer to Repurchase Securities with
the Net Cash Proceeds of Certain
Issuances of Debt and Equity Securities . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 5.21. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE SIX
SUCCESSOR CORPORATION
SECTION 6.01. Limitations on Mergers and Certain
Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE SEVEN
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 7.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 7.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.11. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.12. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.13. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE EIGHT
TRUSTEE
SECTION 8.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.05. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.09. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
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SECTION 8.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.11. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Obligations of
the Company and the Subsidiary
Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.02. Legal Defeasance and Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 9.03. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 9.04. Repayment to the Company or the
Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 9.05. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 10.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 10.03. Compliance with TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.04. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.05. Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 10.06. Trustee to Sign Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 11.02. Subordination of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 11.03. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 11.04. Release of a Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 11.05. Limitation of Subsidiary Guarantor's
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 11.06. Subsidiary Guarantors May Consolidate,
etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 11.07. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 11.08. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 11.09. Execution of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 11.10. Waiver of Stay, Extension or Usury
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
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ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 12.02. Suspension of Guarantee Obligations
When Guarantor Senior Indebtedness
in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 12.03. Guarantee Obligations Subordinated
to Prior Payment of All Guarantor
Senior Indebtedness on Dissolution,
Liquidation or Reorganization of
Such Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 12.04. Holders of Guarantee Obligations to
Be Subrogated to Rights of Holders
of Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.05. Obligations of the Subsidiary
Guarantors Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 12.06. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 12.07. Application by Trustee of Assets
Deposited with It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 12.08. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 12.09. Holders Authorize Trustee to Effectuate
Subordination of Guarantee Obligations . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 12.10. Right of Trustee to Hold Guarantor
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 12.11. No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 12.12. No Fiduciary Duty of Trustee to
Holders of Guarantor Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 13.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 13.03. Communications by Holders with
Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 13.05. Statements Required in Certificate
or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 13.06. Rules by Trustee, Paying Agent,
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 13.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 13.08. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
-vi-
8
Page
SECTION 13.09. No Adverse Interpretation of Other
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 13.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 13.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 13.12. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 13.13. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 13.14. No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SIGNATURES
Exhibit A - Form of Note and Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
-vii-
9
INDENTURE dated as of , , among OUTDOOR SYSTEMS,
INC., a Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS and
, as Trustee.
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Company's Senior Subordinated Notes due 2006:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means (i) with respect to any Person
that becomes a Subsidiary of the Company (or is merged into the Company or any
of its Subsidiaries) after the Issue Date, Indebtedness of such Person or any
of its Subsidiaries existing at the time such Person becomes a Subsidiary of
the Company (or is merged into the Company or any of its Subsidiaries) and
which was not incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary of the Company (or being merged into the Company or any
of its Subsidiaries) and (ii) with respect to the Company or any of its
Subsidiaries, any Indebtedness assumed by the Company or any of its
Subsidiaries in connection with the acquisition of any assets from another
Person (other than the Company or any of its Subsidiaries), and which was not
incurred by such other Person in connection with, or in contemplation of, such
acquisition.
"Adjusted Net Assets" shall have the meaning provided in
Section 11.07.
"Advertising Displays" mean all posters, signs, billboards and
other outdoor advertising displays and related sites therefor owned or leased
(as lessee) by the Company and its Subsidiaries.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing. Notwithstanding the foregoing, the
10
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term "Affiliate," with respect to the Company and its Subsidiaries, shall not
include Canadian Imperial Bank of Commerce or any of its Affiliates.
"Affiliate Transaction" shall have the meaning provided in
Section 5.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means, with respect to any Person, any sale,
transfer or other disposition or series of sales, transfers or other
dispositions (including, without limitation, by merger or consolidation or by
exchange of assets and whether by operation of law or otherwise) made by such
Person or any of its Subsidiaries to any Person other than such Person or one
of its wholly-owned Subsidiaries (or, in the case of a sale, transfer or other
disposition by a Subsidiary of the Company, to any Person other than the
Company or a directly or indirectly wholly-owned Subsidiary of the Company) of
any assets of such Person or any of its Subsidiaries including, without
limitation, assets consisting of any Capital Stock or other securities held by
such Person or any of its Subsidiaries, and any Capital Stock issued by any
Subsidiary of such Person, in each case, outside of the ordinary course of
business, excluding, however, any sale, transfer or other disposition, or
series of related sales, transfers or other dispositions (i) resulting in Net
Proceeds to the Company and its Subsidiaries of $250,000 or less, (ii) of Cash
Equivalents or inventory in the ordinary course of business or obsolete
equipment in the ordinary course of business consistent with past practices of
the Company and (iii) the lease or sublease of any real or personal property in
the ordinary course of business.
"Available Cash Flow" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) Consolidated Tax Expense, (iv)
depreciation, (v) amortization and (vi) all other non-cash charges deducted in
the calculation of Consolidated Net Income (but excluding any non-cash charges
related to the items described in clauses (i) through (v) of the definition of
"Consolidated Net Income") for the period as to which the computation of
Available Cash Flow is made, all as determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
11
-3-
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any duly authorized committee of that
Board.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Bridge Agreement" means the Senior Subordinated Credit
Agreement, dated as of July 9, 1996, by and among the Company, the guarantors
referred to therein, the lenders referred to therein and Canadian Imperial Bank
of Commerce, as agent, as the same may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Business Day" means a day that is not a Legal Holiday.
"Capital Lease," as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is required to be accounted for as a capital lease on
the balance sheet of that Person.
"Capitalized Lease Obligation" means an obligation under a
Capital Lease, and the amount of Indebtedness represented by such obligations
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including,
without limitation, each class of Common Stock and Preferred Stock of such
Person and (ii) with respect to any Person that is not a corporation, any and
all partnership or other equity interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such
12
-4-
state or any public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having the highest
rating obtainable from either Standard & Poor's Rating Group ("S&P") or Moody's
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of
acquisition, having the highest rating obtainable from either S&P's or Moody's;
and (iv) certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia that (a) is at least "adequately capitalized" (as
defined in the regulations of its primary Federal banking regulator) and (b)
has Tier 1 capital (as defined in such regulations) of not less than
$100,000,000; (v) shares of any money market mutual fund that (a) has at least
95% of its assets invested continuously in the types of investments referred to
in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P's or
Moody's; and (vi) repurchase agreements with respect to, and which are fully
secured by a perfected security interest in, obligations of a type described in
clause (i) or clause (ii) above and are with any commercial bank described in
clause (iv) above.
"Cash Flow Leverage Ratio" means the ratio of (i) the sum of
the aggregate outstanding principal amount of all Indebtedness of the Company
and its Subsidiaries determined as of the date of such calculation on a
consolidated basis in accordance with GAAP to (ii) Available Cash Flow of the
Company and its Subsidiaries determined on a consolidated basis for the period
of such calculation.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group"), together with any
Affiliates thereof; (ii) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of the
Company; (iii) the Permitted Holders, individually or in the aggregate, shall
cease to beneficially own (within the meaning of Rule 13d-3 under the Exchange
Act), directly or indirectly, Voting Stock representing at least 40% (or at any
time that the Company's Cash Flow Leverage Ratio for the Company's most
recently ended two full fiscal quarters for which internal financial statements
are available determined on a pro forma basis in accordance with Section 5.12
hereof is less than 3.5 to 1, 25%) of the total voting
13
-5-
power of all Voting Stock of the Company; (iv) any Person or Group (other than
the Permitted Holders) shall become the owner, directly or indirectly,
beneficially or of record, of Voting Stock representing more than 20% of the
total voting power of all Voting Stock of the Company; or (v) the replacement
of a majority of the Board of Directors of the Company over a two-year period
from the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by
a vote of at least two-thirds of the Board of Directors of the Company then
still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved.
"Change of Control Date" shall have the meaning provided
in Section 5.15.
"Change of Control Offer" shall have the meaning provided
in Section 5.15.
"Change of Control Payment Date" shall have the meaning
provided in Section 5.15.
"Closing Date" means , 1996, the date on which the
loan pursuant to the Bridge Agreement was made.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any Person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or non-voting) of, such Person's common stock,
whether outstanding at the Issue Date or issued after the Issue Date, and
includes, without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Consolidated Interest Expense" means, with respect to any
Person for any period, without duplication, the sum of (i) the total interest
expense of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP (including amortization of original
issue discount, non-cash interest payments and the interest component of
Capitalized Lease Obligations), whether paid or accrued, to the extent such
expense was deducted in computing the Consolidated Net Income of such
14
-6-
Person, and (ii) all dividends paid or declared during such period on any
preferred stock of such Person and its Subsidiaries.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the net income (or loss) of such Person and
its Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (a) the net income of any other Person in
which such Person or any of its Subsidiaries has an interest (which interest
does not cause the net income of such other Person to be consolidated with the
net income of such Person and its Subsidiaries in accordance with GAAP) shall
be included only to the extent of the amount of dividends or distributions
actually paid to such Person or such Subsidiary by such other Person during
such period; (b) the net income of any Subsidiary of such Person that is
subject to any Payment Restriction shall be excluded to the extent such Payment
Restriction actually prevented the payment of an amount that otherwise could
have been paid to such Person or to a Subsidiary of such Person not subject to
any Payment Restriction; and (c) there shall be excluded (i) the net income (or
loss) of any other Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition, (ii) all gains and losses
realized on any Asset Sale (without regard to the $250,000 threshold set forth
in the definition of Asset Sale), (iii) all gains and losses realized on the
purchase or other acquisition by such Person or any of its Subsidiaries of any
securities of such Person or any of its Subsidiaries, (iv) all other net
extraordinary gains, and (v) (A) all non-cash charges (provided, however, that
any cash payments actually made with respect to the liabilities for which such
charges were created shall be deducted from Consolidated Net Income in the
period when made) and (B) all deferred financing costs written off in
connection with the early extinguishment of any Indebtedness, in each case,
incurred by the Company or any of its Subsidiaries in connection with the
Transactions.
"Consolidated Net Worth" means, as at any date of
determination, the sum of the Capital Stock and additional paid-in capital plus
retained earnings (or minus accumulated deficits) of the Company and its
Subsidiaries on a consolidated basis determined in conformity with GAAP.
"Consolidated Tax Expense" means, for any Person, for any
period, the aggregate income tax expense of such Person and its Subsidiaries
determined on a consolidated basis in accordance with GAAP, excluding, however,
the income tax expense of such Person attributable to a disposition of assets
the gain from which is excluded from the calculation of "Consolidated Net
Income," but only to the extent such income tax expense does not exceed the
cash
15
-7-
portion of the consideration received by such Person in connection with the
disposition of such assets.
"Credit Agent" means, at any time, the then-acting
Administrative Agent as defined in and under the Senior Credit Facilities,
which initially shall be Canadian Imperial Bank of Commerce. The Company shall
promptly notify the Trustee of any change in the Credit Agent.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an
Event of Default.
"Denver Disposition" means the sale by the Company of any or
all of the outdoor advertising assets of the Company that, prior to the Closing
Date, serve the Denver, Colorado market.
"Designated Senior Indebtedness" as to the Company or any
Guarantor, as the case may be, means any Senior Indebtedness (a) under or in
respect of the Senior Credit Facilities, or (b) which at the time of
determination exceeds $25,000,000 in aggregate principal amount (or accreted
value in the case of Indebtedness issued at a discount) outstanding or
available under a committed facility, and (x) unless such designation is
prohibited by the Senior Credit Facilities, which is specifically designated in
the instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by such Person and (y) as to which the Trustee has been given
written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event (other than an
event which would constitute a Change of Control), (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except upon the
occurrence of a Change of Control), in whole or in part, on or prior to the
final maturity date of the Notes, or (ii) is convertible into or exchangeable
for (whether at the option of the issuer or the holder thereof) (a) debt
securities or (b) any Capital Stock referred to in (i) above, in each case at
any time prior to the final maturity of the Notes; provided, that only the
portion of Capital Stock which so matures or is mandatorily redeemable, is so
convertible or exchangeable or is so redeemable
16
-8-
at the option of the holder thereof prior to such final maturity date shall be
deemed to be Disqualified Capital Stock.
"Event of Default" shall have the meaning provided in Section
7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission
thereunder.
"fair market value" means, unless otherwise specified, with
respect to any asset or property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion
to complete the transaction. Fair market value shall be determined by the
Board of Directors of the Company acting reasonably and in good faith and shall
be evidenced by a resolution of the Board of Directors of the Company delivered
to the Trustee.
"Foreign Exchange Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement or arrangement
designed to protect against fluctuations in currency values.
"Funding Subsidiary Guarantor" shall have the meaning provided
in Section 11.07.
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the Closing Date, except that, for
purposes of Section 5.09, such term shall mean such principles in effect from
time to time.
"Guarantee" means the guarantee of each Subsidiary Guarantor
set forth in Article Eleven and any additional guarantee of the Securities
executed by any Subsidiary of the Company.
"Guarantee Obligations" shall have the meaning provided in
Section 12.01.
"Guarantor Payment Blockage Period" shall have the meaning
provided in Section 12.02.
"Guarantor Senior Indebtedness" means, with respect to any
Subsidiary Guarantor, the principal of, premium, if any, and interest on and
all other Obligations with respect to any Indebtedness of such Subsidiary
Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless,
17
-9-
in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Subsidiary Guarantor. Without limiting the generality of the
`foregoing, "Guarantor Senior Indebtedness" shall include (x) the principal of,
premium, if any, and interest on all obligations of every nature of such
Subsidiary Guarantor from time to time owed to the lenders under the Senior
Credit Facilities, including, without limitation, the Letter of Credit
Obligations and principal of and interest on, and all fees, indemnities and
expenses payable under the Senior Credit Facilities, (y) interest accruing
thereon subsequent to the occurrence of any Event of Default specified in
clause (vi) or (vii) of Section 7.01 relating to such Subsidiary Guarantor,
whether or not the claim for such interest is allowed under any applicable
Bankruptcy Law and (z) all deferrals, renewals, extensions, refinancings and
restructurings of, and amendments, modifications and supplements to, any of the
Guarantor Senior Indebtedness described above. Notwithstanding the foregoing,
"Guarantor Senior Indebtedness" shall not include (a) Indebtedness evidenced by
the Guarantee of such Subsidiary Guarantor, (b) Indebtedness that is expressly
subordinate or junior in right of payment to any Indebtedness of such
Subsidiary Guarantor, (c) Indebtedness which, when incurred and without respect
to any election under Section 1111(b) of Title 11, United States Code, is
without recourse to such Subsidiary Guarantor, (d) Indebtedness which is
represented by Disqualified Capital Stock, (e) obligations for goods, materials
or services purchased in the ordinary course of business or obligations
consisting of trade payables, (f) Indebtedness of or amounts owed by such
Subsidiary Guarantor for compensation to employees or for services rendered to
such Subsidiary Guarantor, (g) any liability for federal, state, local or
other taxes owed or owing by such Subsidiary Guarantor, (h) Indebtedness of
such Guarantor representing a guarantee of Subordinated Indebtedness or Pari
Passu Indebtedness of the Company or any other Subsidiary Guarantor, (i)
Indebtedness of such Subsidiary Guarantor to a Subsidiary of the Company and
(j) that portion of any Indebtedness (other than Indebtedness described in
clause (x) of the second sentence of this definition which relates to
reimbursement obligations (whether in the form of loans or otherwise) under
letters of credit with respect to drawings made thereunder and not yet
reimbursed) which is incurred by such Subsidiary Guarantor in violation of this
Indenture.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
18
-10-
"Houston Disposition" means the sale by the Company of any or
all of the assets representing outdoor advertising assets serving the Houston,
Texas market prior or subsequent to the Closing Date.
"Indebtedness" means with respect to any Person, without
duplication, (i) all liabilities of such Person (a) for borrowed money (whether
or not the recourse of the lender is to the whole of the assets of such Person
or only to a portion thereof), (b) evidenced by bonds, notes, debentures,
drafts accepted or similar instruments or representing the balance deferred and
unpaid of the purchase price of any property (other than any such balance that
represents an account payable or any other monetary obligation to a trade
creditor (whether or not an Affiliate) created, incurred, assumed or guaranteed
by such Person in the ordinary course of business of such Person in connection
with obtaining goods, materials or services and due within twelve months (or
such longer period for payment as is customarily extended by such trade
creditor) of the incurrence thereof, which account is not overdue by more than
90 days, according to the original terms of sale, unless such account payable
is being contested in good faith), or (c) for the payment of money relating to
a Capitalized Lease Obligation; (ii) the maximum fixed repurchase price of all
Disqualified Capital Stock of such Person; (iii) reimbursement obligations of
such Person with respect to letters of credit; (iv) obligations of such Person
with respect to Interest Swap Obligations and Foreign Exchange Agreements; (v)
all liabilities of others of the kind described in the preceding clause (i),
(ii), (iii) or (iv) that such Person has guaranteed or that is otherwise its
legal liability; and (vi) all obligations of others secured by a Lien to which
any of the properties or assets (including, without limitation, leasehold
interests and any other tangible or intangible property rights) of such Person
are subject, whether or not the obligations secured thereby shall have been
assumed by such Person or shall otherwise be such Person's legal liability
(provided that if the obligations so secured have not been assumed by such
Person or are not otherwise such Person's legal liability, such obligations
shall be deemed to be in an amount equal to the fair market value of such
properties or assets, as determined in good faith by the Board of Directors of
such Person, which determination shall be evidenced by a Board Resolution).
For purposes of the preceding sentence, the "maximum fixed repurchase price" of
any Disqualified Capital Stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
19
-11-
Disqualified Capital Stock (or any equity security for which it may be
exchanged or converted), such fair market value shall be determined in good
faith by the Board of Directors of such Person, which determination shall be
evidenced by a Board Resolution.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Independent Financial Advisor" means an accounting,
appraisal, investment banking or consulting firm of nationally recognized
standing that is, in the reasonable and good faith judgment of the Board of
Directors of the Company, qualified to perform the task for which such firm has
been engaged hereunder and disinterested and independent with respect to the
Company and its Affiliates.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Interest Swap Obligation" means any obligation of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a fixed or floating rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or floating rate of interest on the same
notional amount; provided that the term "Interest Swap Obligation" shall also
include interest rate exchange, collar, cap, swap option or similar agreements
providing interest rate protection.
"Investment" means (i) any direct or indirect purchase or
other acquisition of, or of a beneficial interest in, any Securities of any
other Person or (ii) any direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business), extension of
credit or capital contribution to any other Person, including all indebtedness
and accounts receivable from that other Person that are not current assets or
did not arise from sales to that other Person in the ordinary course of
business. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"Issue Date" means the date of original issuance of the
Securities under this Indenture.
20
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"Legal Holiday" shall have the meaning provided in Section
13.07.
"Letter of Credit Obligations" means Indebtedness of the
Company or any of its Subsidiaries with respect to letters of credit issued
pursuant to the Senior Credit Facilities, and for purposes of the definition of
the term "Permitted Indebtedness," the aggregate principal amount of
Indebtedness outstanding at any time with respect thereto shall be deemed to
consist of (a) the aggregate maximum amount then available to be drawn under
all such letters of credit (the determination of such maximum amount to assume
compliance with all conditions for drawing), and (b) the aggregate amount that
has been paid by, and not reimbursed to, the issuers under such letters of
credit; provided that if any such letters of credit are issued to support
letters of credit issued by another Person on behalf of the Company or any of
its Subsidiaries, then the principal amount of Indebtedness outstanding shall
not include such other letters of credit to the extent of such support letters
of credit.
"Lien" means any mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance against real or
personal property, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell which is intended to constitute
or create a security interest, mortgage, pledge or lien, and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction); provided that in no event shall an
operating lease be deemed to constitute a Lien under this Indenture.
"Material Subsidiary" means, with respect to any accounting
period, any Subsidiary of the Company (i) whose revenues constitute greater
than 10% of the aggregate dollar value of the revenues of the Company and its
Subsidiaries, taken as a whole, for such accounting period or (ii) the fair
market value of whose assets at any time during such accounting period is
greater than 10% of the fair market value of all of the assets of the Company
and its Subsidiaries at such time.
"Maturity Date" means , 2006.
"Net Cash Proceeds" means the Net Proceeds of any Asset Sale
received in the form of cash or Cash Equivalents.
"Net Proceeds" means (a) in the case of any Asset Sale or any
issuance and sale by any Person of Qualified Capital Stock, the
21
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aggregate net proceeds received by such Person after payment of expenses,
income taxes reasonably estimated to be actually payable as a result of such
Asset Sale within two years of such Asset Sale, commissions and the like
incurred in connection therewith (and, in the case of any Asset Sale, net of
the amount of cash applied to repay Indebtedness secured by the asset involved
in such Asset Sale), whether such proceeds are in cash or in property (valued
at the fair market value thereof at the time of receipt, as determined with
respect to any Asset Sale resulting in Net Proceeds in excess of $500,000 in
good faith by the Board of Directors of such Person, which determination shall
be evidenced by a Board Resolution) and (b) in the case of any conversion or
exchange of any outstanding Indebtedness or Disqualified Capital Stock of such
Person for or into shares of Qualified Capital Stock of such Person, the sum of
(i) the fair market value of the proceeds received by such Person in connection
with the issuance of such Indebtedness or Disqualified Capital Stock on the
date of such issuance and (ii) any additional amount paid by the holder to such
Person upon such conversion or exchange.
"Non-payment Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to act to
accelerate the maturity of any Designated Senior Indebtedness.
"Obligations" means all obligations of every nature whether
for principal, reimbursements, interest, fees, expenses, indemnities or
otherwise, and whether primary, secondary, direct, indirect, contingent, fixed
or otherwise (including obligations of performance) under the documentation
governing any Indebtedness.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Chief Financial Officer, the Controller, the Treasurer or
the Secretary of the Company.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 13.04 and 13.05. Unless otherwise required by the
Trustee, the legal counsel may be an employee of or counsel to the Company or
the Trustee.
22
-14-
"Pari Passu Indebtedness" means, with respect to the Company
or any Subsidiary Guarantor, Indebtedness of such Person which ranks pari passu
in right of payment to the Securities or the Guarantee of such Subsidiary
Guarantor, as the case may be.
"Paying Agent" shall have the meaning provided in Section
2.03, except that, for the purposes of Articles Three and Nine and Sections
5.15 and 5.16, the Paying Agent shall not be the Company or an Affiliate of the
Company.
"Payment Blockage Notice" shall have the meaning provided in
Section 4.02.
"Payment Blockage Period" shall have the meaning provided in
Section 4.02.
"Payment Default" means any default in the payment of
principal, premium, if any, or interest on any Designated Senior Indebtedness
beyond any applicable grace period with respect thereto.
"Payment Restriction" means, with respect to a Subsidiary of
any Person, any encumbrance, restriction or limitation, whether by operation of
the terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability or Indebtedness owed to
such Person or any other Subsidiary of such Person, (b) make loans or advances
to such Person or any other Subsidiary of such Person, or (c) transfer any of
its properties or assets to such Person or any other Subsidiary of such Person,
or (ii) such Person or any other Subsidiary of such Person to receive or retain
any such (a) dividends, distributions or payments, (b) loans or advances, or
(c) transfer of properties or assets.
"Permitted Asset Swap" means the exchange, in the ordinary
course of the outdoor advertising business, of any interest of the Company or
any of its Subsidiaries in any Advertising Display or Displays for a similar
interest in an Advertising Display or Displays of a Person other than the
Company or such Subsidiary; provided that (i) the aggregate fair market value
(as determined in good faith by the Board of Directors of the Company) of the
Advertising Display or Displays being transferred by the Company or such
Subsidiary is not greater than the aggregate fair market value (as determined
in good faith by the Board of Directors of the Company) of the Advertising
Display or Displays received by the Company or such Subsidiary in such exchange
and
23
-15-
(ii) the aggregate fair market value (as determined in good faith by the Board
of Directors of the Company) of all Advertising Displays transferred by the
Company and its Subsidiaries in connection with exchanges in any period of
twelve consecutive months shall not exceed $500,000.
"Permitted Encumbrances" means (i) Liens existing on the Issue
Date to the extent and in the manner such Liens are in effect on the Issue
Date; (ii) Liens for taxes, assessments or governmental charges or claims not
yet due or which are being diligently contested in good faith and if a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor; (iii) statutory Liens of landlords and
banks and rights of offset, and Liens of carriers, warehousemen, workmen,
repairmen, mechanics and materialmen and other Liens imposed by law incurred in
the ordinary course of business for sums not yet delinquent or being contested
in good faith, if such reserve or other appropriate provision, if any, as shall
be required by GAAP shall have been made therefor; (iv) Liens incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, utility payments,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money); (v) any attachment or
judgment Lien not constituting an Event of Default; (vi) leases or subleases
granted to others not interfering in any material respect with the ordinary
conduct of the business of the Company and its Subsidiaries, taken as a whole;
(vii) easements, rights-of-way, restrictions, minor defects, encroachments or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business
of the Company and its Subsidiaries, taken as a whole; (viii) any (a) interest
or title of a lessor or sublessor (other than the Company or any of its
Subsidiaries) under any lease, (b) restriction or encumbrance that the interest
or title of such lessor or sublessor may be subject to (including without
limitation ground leases or other prior leases of the demised premises,
mortgages, mechanics liens, tax liens, and easements), or (c) subordination of
the interest of the lessee or sublessee under such lease to any restrictions or
encumbrance referred to in the preceding clause (b); (ix) Liens arising from
filing UCC financing statements for precautionary purposes relating solely to
true leases of personal property permitted under the applicable indenture and
under which the Company or any of its Subsidiaries is a lessee; (x) Liens in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs
24
-16-
duties in connection with the importation of goods; (xi) any zoning or similar
law or right reserved to or vested in any governmental office or agency to
control or regulate the use of any real property; (xii) Liens securing
obligations (other than obligations representing Indebtedness for borrowed
money) under operating, reciprocal easement or similar agreements entered into
in the ordinary course of business of the Company and its Subsidiaries; (xiii)
Liens upon specific items of inventory or other goods and proceeds of any
Person securing such Person's obligations in respect of bankers' acceptances
issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods in the ordinary course of
business; (xiv) Liens securing reimbursement obligations with respect to
letters of credit which encumber documents and other property relating to such
letters of credit and the products and proceeds thereof; (xv) Liens arising out
of consignment or similar arrangements for the sale of goods entered into by
the Company or any Subsidiary in the ordinary course of business in accordance
with past practices; (xvi) Liens to secure Refinancing Indebtedness to the
extent the Indebtedness refinanced was secured and such Liens do not extend to
any property other than the property which was subject to the Lien under the
Indebtedness being Refinanced; (xvii) Liens on assets of the Company securing
Indebtedness which would constitute Senior Indebtedness but for the provisions
of clause (c) in the third sentence of the definition of Senior Indebtedness
and Liens on assets of a Subsidiary Guarantor securing Indebtedness which would
constitute Guarantor Senior Indebtedness but for the provisions of clause (c)
in the third sentence of the definition of Guarantor Senior Indebtedness; and
(xviii) additional Liens securing Indebtedness at any one time outstanding not
to exceed $5,000,000.
"Permitted Holders" means William S. Levine, Arthur R. Moreno,
any trust solely for the benefit of Messrs. Levine and Moreno or their
respective immediate family members, or any partnership all the ownership
interests in which are beneficially owned or controlled by any of the
foregoing; provided that with respect to any such trust or partnership either
Mr. Levine or Mr. Moreno shall at all times have the exclusive power to direct
the voting of the shares of Voting Stock of the Company held by such trust or
partnership.
"Permitted Indebtedness" means (a) Indebtedness of the Company
and its Subsidiaries (and the Company and each Subsidiary of the Company (to
the extent it is not an obligor) may guarantee such Indebtedness) pursuant to
(i) the Senior Credit Facilities in an aggregate principal amount at any one
time outstanding not to exceed $530,000,000, less the aggregate amount of all
principal
25
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repayments thereunder (to the extent, in the case of payments of revolving
credit Indebtedness, that the corresponding commitments have been permanently
reduced) pursuant to and in accordance with the requirements of Section 5.16
subsequent to the Issue Date, and (ii) any Indebtedness incurred under the
Senior Credit Facilities pursuant to and in compliance with (A) clause (l) of
this definition or (B) Section 5.12, (b) any Indebtedness of the Company or any
Subsidiary of the Company which, in the case of the Company, is owing to any
wholly-owned Subsidiary of the Company and which, in the case of any such
Subsidiary, is owing to the Company or any wholly-owned Subsidiary of the
Company, (c) Indebtedness incurred by the Company or any Subsidiary in
connection with the purchase or improvement of property (real or personal) or
equipment or other capital expenditures in the ordinary course of business or
consisting of Capitalized Lease Obligations; provided that at the time of the
incurrence thereof, such Indebtedness, together with any other Indebtedness
incurred during the most recently completed four fiscal quarter period in
reliance upon this clause (c), does not exceed, in the aggregate, $2,000,000 at
any time outstanding; (d) Indebtedness of the Company incurred under Foreign
Exchange Agreements and Interest Swap Obligations entered into with respect to
Indebtedness in a notional amount not exceeding the aggregate principal amount
of Indebtedness and otherwise permitted to be outstanding pursuant to Section
5.12; (e) guarantees incurred in the ordinary course of business, by the
Company or a Subsidiary of the Company, of Indebtedness of any other Person in
the aggregate not to exceed $2,000,000 at any time outstanding; (f) guarantees
by the Company or a Subsidiary of the Company of Indebtedness incurred by a
wholly-owned Subsidiary so long as the incurrence of such Indebtedness incurred
by such wholly-owned Subsidiary is permitted under the terms of this Indenture;
(g) Refinancing Indebtedness; (h) Indebtedness for letters of credit relating
to workers' compensation claims and self-insurance or similar requirements in
the ordinary course of business; (i) other Indebtedness outstanding on the
Issue Date and specified on a schedule to this Indenture; (j) Indebtedness
arising from guarantees of Indebtedness of the Company or any Subsidiary of the
Company or other agreements of the Company or a Subsidiary of the Company
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or Subsidiary of the Company, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or Subsidiary of the Company for the purpose of
financing such acquisition; provided that the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and its Subsidiaries in connection with such
disposition; (k) obligations in respect of
26
-18-
performance bonds and completion guarantees provided by the Company or any
Subsidiary of the Company in the ordinary course of business; (l) additional
Indebtedness of the Company and the Subsidiary Guarantors in an amount not to
exceed $5,000,000 at any time outstanding; (m) any Securities issued after the
Issue Date in exchange for Term Notes; (n) any notes issued in exchange for
Securities in an exchange offer contemplated by, and in accordance with, the
Registration Rights Agreement; and (o) any guarantees of Indebtedness of the
types set forth in clauses (m) and (n) above.
"Permitted Investment" by any Person means (i) any Related
Business Investment, (ii) Investments in securities not constituting cash or
Cash Equivalents and received in connection with an Asset Sale made pursuant to
Section 5.16 or any other disposition of assets not constituting an Asset Sale
by reason of the $250,000 threshold contained in the definition thereof, (iii)
cash and Cash Equivalents, (iv) Investments existing on the Issue Date, (v)
Investments by the Company or by any Subsidiary of the Company in any Person
that is or will become immediately after such Investment a wholly-owned
Subsidiary of the Company that either (a) has not incurred (and will not incur
as a result of or in connection with such transaction) any Indebtedness (other
than Indebtedness permitted to be incurred by such Subsidiary under Section
5.12) or (b) is a Subsidiary Guarantor; provided, however, that (x) such
Investment shall be a Permitted Investment only for so long as any such
Subsidiary in which the Investment has been made meets the conditions set forth
above and (y) no Investment in any such Person or Subsidiary (including any
transaction pursuant to which any Person becomes a Subsidiary of the Company)
will be a Permitted Investment if and for so long as such Subsidiary is or
would be subject to any Payment Restriction; (vi) any Investments in the
Company by any Subsidiary of the Company; provided, however, that any
Indebtedness of the Company for payment in respect of such Investment is
subordinated in right of payment, pursuant to a written agreement, to the
Securities at least to the same extent and in the same manner as the Securities
are subordinated to the Bank Indebtedness; and (vii) additional Investments in
an aggregate amount not exceeding $10,000,000.
"Person" means and includes natural persons, corporations,
limited liability companies, limited partnerships, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions
thereof.
27
-19-
"PIK Securities" means Securities issued after the Issue Date
in lieu of payment in cash of Interest due on the Securities in accordance with
Section 2.02.
"Plan of Liquidation" means, with respect to any Person, a
plan that provides for, contemplates or the effectuation of which is preceded
or accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and
all or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"Preferred Stock" means, with respect to any Person, Capital
Stock of any class or classes (however designated) which is preferred as to
the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of any Indebtedness (including the Securities)
means the principal of such Indebtedness plus the premium, if any, on such
Indebtedness.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company's chief financial officer or Board of Directors in
consultation with its independent certified public accountants.
"Qualified Capital Stock" means, with respect to any Person,
any Capital Stock of such Person that is not Disqualified Capital Stock.
"Record Date" means the Record Dates specified in the
Securities; provided that if any such date is a Legal Holiday, the Record Date
shall be the first day immediately preceding such specified day that is not a
Legal Holiday.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture and Paragraph 5 of the Securities annexed hereto as Exhibit A.
28
-20-
"Redemption Price," when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this
Indenture and Paragraph 5 of the Securities annexed hereto as Exhibit A.
"Reference Date" shall have the meaning provided in Section
5.03.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund or defease, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means, with respect to any Person,
any Refinancing of any Indebtedness of such Person existing on the Issue Date
or Indebtedness (other than Permitted Indebtedness, except Permitted
Indebtedness incurred pursuant to clause (i) of the definition thereof)
incurred in accordance with this Indenture (a) in a principal amount (or, if
such Refinancing Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon the acceleration thereof, with an
original issue price) not in excess of (without duplication) (i) the principal
amount or the original issue price, as the case may be, of the Indebtedness so
refinanced (or, if such Refinancing Indebtedness Refinances Indebtedness under
a revolving credit facility or other agreement providing a commitment for
subsequent borrowings, with a maximum commitment not to exceed the maximum
commitment under such revolving credit facility or other agreement) plus (ii)
unpaid and accrued interest on such Indebtedness plus (iii) premiums,
penalties, fees and expenses actually incurred by such Person in connection
with the Refinancing thereof and (b) with respect to Refinancing Indebtedness
that Refinances Subordinated Indebtedness, such Refinancing Indebtedness (x)
shall not have any fixed mandatory redemption or sinking fund requirement in an
amount greater than or at a time prior to the amounts and times specified in
such Subordinated Indebtedness being Refinanced, except to the extent that any
such requirement applies on a date after the Maturity Date and (y) shall
contain subordination and default provisions no less favorable in any material
respect to Holders than those contained in such Subordinated Indebtedness being
Refinanced.
"Registrar" shall have the meaning provided in Section 2.03.
"Registration Rights Agreement" shall have the meaning set
forth in the Bridge Agreement.
29
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"Related Business Investment" means (i) any Investment by a
Person in any other Person a majority of whose revenues are derived from the
operation of any line of business engaged in by the Company or any of its
Subsidiaries as of the Issue Date; and (ii) any capital expenditure or
Investment, in each case reasonably related to the business of the Company and
its Subsidiaries as it is conducted as of the Issue Date and as such business
may thereafter evolve or change.
"Representative" means the Administrative Agent under the
Senior Credit Facilities and the indenture trustee or other trustee, agent or
representative for any other Designated Senior Indebtedness; provided that in
no event shall [ ], in its capacities as Trustee, Registrar,
co-Registrar or Paying Agent, serve as Representative.
"Restricted Debt Prepayment" means any principal payment on,
purchase, redemption, defeasance, prepayment or other acquisition or retirement
for value of, any Subordinated Indebtedness, directly or indirectly, by the
Company or any Subsidiary of the Company, other than any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment.
"Restricted Payment" means any (i) Stock Payment, (ii)
Investment (other than a Permitted Investment) or (iii) Restricted Debt
Prepayment.
"Securities" means the Company's Senior Subordinated Notes due
2006, as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture including, without
limitation, the PIK Securities and the registered Securities, if any, having
the same terms and conditions which are issued by the Company in exchange for
such Securities upon exercise of the registration rights accompanying such
Securities.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Senior Credit Facilities" means the Second Amended and
Restated Credit Agreement dated as of July 9, 1996 among the Company, the
several lenders from time to time parties thereto and Canadian Imperial Bank of
Commerce, as administrative agent, together with the documents related thereto
(including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise
30
-22-
modified from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Senior Indebtedness" means the principal of, premium, if any,
and interest on and all other Obligations with respect to any Indebtedness of
the Company, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Securities. Without limiting the generality of the
foregoing, "Senior Indebtedness" shall include (x) the principal of, premium,
if any, and interest on all Obligations of every nature of the Company from
time to time owed to the lenders under the Senior Credit Facilities, including,
without limitation, the Letter of Credit Obligations and principal of and
interest on and all fees, indemnities, and expenses payable under the Senior
Credit Facilities, (y) interest accruing thereon subsequent to the occurrence
of any Event of Default specified in clause (vi) or (vii) of Section 7.01
relating to the Company, whether or not the claim for such interest is allowed
under any applicable Bankruptcy Law and (z) all deferrals, renewals,
extensions, refinancings and restructuring of, and amendments, modifications
and supplements to, any of the Senior Indebtedness described above.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (a)
Indebtedness evidenced by the Securities or the Take-Out Notes, (b)
Indebtedness that is expressly subordinate or junior in right of payment to any
Indebtedness of the Company, (c) Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Title 11, United States Code,
is without recourse to the Company, (d) Indebtedness which is represented by
Disqualified Capital Stock, (e) obligations for goods, materials or services
purchased in the ordinary course of business or obligations consisting of trade
payables, (f) Indebtedness of or amounts owed by the Company for compensation
to employees or for services rendered to the Company, (g) any liability for
federal, state, local or other taxes owed or owing by the Company, (h)
Indebtedness of the Company to a Subsidiary of the Company, (i) that portion of
any Indebtedness (other than Indebtedness described in clause (x) of the second
sentence of this definition which relates to reimbursement obligations (whether
in the form of loans or otherwise) under letters of credit with respect to
drawings made thereunder and not yet reimbursed) which is incurred
31
-23-
by the Company in violation of this Indenture and (j) Indebtedness evidenced by
the Bridge Agreement.
"Significant Stockholder" means, with respect to any Person,
any other Person who is the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of more than 10% of any class of equity securities of
such Person that are entitled to vote on a regular basis for the election of
directors of such Person.
"Stock Payment" means (a) the declaration or payment either in
cash or in property, of any dividend on (except dividends payable solely in
Qualified Capital Stock of the Company), or the making by the Company or any
of its Subsidiaries of any other distribution in respect of, the Company's
Capital Stock or any warrants, rights or options to purchase or acquire shares
of any class of such Capital Stock (other than exchangeable or convertible
Indebtedness of the Company), or (b) the redemption, repurchase, retirement or
other acquisition for value by the Company or any of its Subsidiaries, directly
or indirectly, of the Company's Capital Stock or any warrants, rights or
options to purchase or acquire shares of any class of such Capital Stock (other
than exchangeable or convertible Indebtedness of the Company), other than
solely in exchange for Qualified Capital Stock of the Company.
"Subordinated Indebtedness" means, with respect to the Company
or any Subsidiary Guarantor, Indebtedness of such Person which is expressly
subordinated in right of payment to the Securities or the Guarantee of such
Subsidiary Guarantor, as the case may be.
"Subsidiary" means with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of stock or other equity interest entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereto is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof.
"Subsidiary Guarantors" means (i) each of OS Baseline, Inc.,
an Arizona corporation, Outdoor Systems Painting, Inc., an Arizona corporation,
New York Subways Advertising Co., Inc., an Arizona corporation, OS Advertising
of Texas Painting, Inc., a Texas corporation, Decade Communications Group,
Inc., a Colorado corporation, and Bench Advertising Company of Colorado, Inc.,
a Colorado corporation, (ii) each of the Company's Subsidiaries which becomes a
guarantor of the Securities in compliance with the
32
-24-
provisions of Section 5.17 and (iii) each of the Company's Subsidiaries
executing a supplemental indenture in which such Subsidiary agrees to be bound
by the terms of this Indenture.
"Take-Out Notes" means any Indebtedness issued by the Company
to refinance amounts outstanding under the Bridge Agreement.
"Term Loans" means the term loan facility under the Senior
Credit Facilities.
"Term Notes" shall have the meaning set forth in the Bridge
Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section Section 77aaa-77bbbb), as amended, as in effect on the date of the
execution of this Indenture until such time as this Indenture is qualified
under the TIA, and thereafter as in effect on the date on which this Indenture
is qualified under the TIA, except as otherwise provided in Section 10.03.
"Transactions" shall have the meaning set forth in the Bridge
Agreement.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in Section 9.02.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holders
thereof to vote under ordinary circumstances in the election of members of the
board of directors or other governing body of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the products obtained by
33
-25-
multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment.
"wholly-owned Subsidiary" means, with respect to any Person,
any corporation, association or other business entity of which 100% of the
total voting power of shares of stock or other equity interest 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 that Person or one or more of the other wholly-owned
Subsidiaries of that Person or a combination thereof.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, any
Subsidiary Guarantor, or any other obligor on the Securities or the Guarantees.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
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SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities, the notation thereon relating to the Guarantee
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit A. Any registered Securities may be issued in exchange for a
like principal amount of the Securities pursuant to a registered exchange
offer. The registered Securities shall be in the same form of Exhibit A,
except that the restrictive legend shall not apply. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company and the Trustee shall approve the form of the Securities
and any notation, legend or endorsement on them. Each Security shall be dated
the date of its authentication.
The terms and provisions contained in the Securities and the
Guarantee shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
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SECTION 2.02. Execution and Authentication; PIK Securities.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of up to $240,000,000 plus the amount of PIK
Securities outstanding at such time, except as provided in Section 2.07, and
registered exchange Securities from time to time for issue only in exchange for
a like principal amount of Securities, in each case upon a written order of the
Company in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Securities to be authenticated and the date on
which the Securities are to be authenticated. The aggregate principal amount
of Securities outstanding at any time may not exceed $240,000,000 plus the
amount of PIK Securities outstanding at such time, except as provided in
Section 2.07. Upon the written order of the Company in the form of an
Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name change of the
Company.
The Company may at its option, on any Interest Payment Date
(as set forth in the Securities) in lieu of payment in cash of interest due on
the Securities in excess of 15% per annum pay such excess by issuing PIK
Securities by giving notice to the Holders and the Trustee of such election not
less than 5 nor more than 30 days prior to the Record Date for such Interest
Payment (as set forth in the Securities). The Trustee or an authenticating
agent, on each such Interest Payment Date as to which the Issuer has elected to
make such interest payments in PIK Securities, in full or in part, shall upon
written order of the Company signed by one Officer, given not less than 5 nor
more than 30 days prior to the Interest Payment Date, authenticate for original
issue and deliver additional Securities, in an aggregate principal amount equal
to the amount of interest not paid in cash on each such Interest Payment Date.
Each issuance of PIK Securities in lieu of payment in cash of interest on the
Securities shall be made pro rata with respect to the then outstanding
Securities.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual or
facsimile signature. Each Subsidiary Guarantor shall execute the Guarantee in
the manner set forth in Section 11.09.
If an Officer whose signature is on a Security was an Officer
at the time of such execution but no longer holds that
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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 may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
and Affiliates of the Company.
The Securities (other than PIK Securities) shall be issuable
only in registered form without coupons in denominations of $1,000 and integral
multiples thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company may also from time to time designate
one or more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company may act as its own Registrar or Paying Agent except that for the
purposes of Articles Three and Nine and Sections 5.15 and 5.16, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent.
The Company initially appoints the Trustee as Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been appointed.
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The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, 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.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that, subject to Article Four and Article Twelve,
each Paying Agent shall hold in trust for the benefit of Holders or the Trustee
all assets held by the Paying Agent for the payment of principal of, or
interest on, the Securities (whether such assets have been distributed to it by
the Company or any other obligor on the Securities), and shall notify the
Trustee of any Default by the Company (or any other obligor on the Securities)
in making any such payment. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate such assets and hold them as a separate trust fund,
subject to Article Four and Article Twelve. The Company at any time may
require a Paying Agent to distribute all assets held by it to the Trustee and
account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee
and to account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the Paying Agent,
the Paying Agent shall have no further liability for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before each 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
Holders, which list may be conclusively relied upon by the Trustee.
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SECTION 2.06. Transfer and Exchange.
When Securities are presented to the Registrar or a co-
Registrar with a request to register the transfer of such Securities or to
exchange such Securities for an equal principal amount of Securities of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Sections
2.02, 2.07, 2.10, 3.06, 5.15, 5.16 or 10.05). The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of any Security
(i) during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities and ending at the close of
business on the day of such mailing and (ii) selected for redemption in whole
or in part pursuant to Article Three, except the unredeemed portion of any
Security being redeemed in part.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for
its reasonable out-of-pocket expenses in replacing a Security, including
reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company.
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SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled 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,
the Subsidiary Guarantors or any of their respective Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.07 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue
unless, pursuant to the provisions of Article Four and Article Twelve, the
Paying Agent is unable to make payments on the Securities to the Holders
thereof.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, the Subsidiary Guarantors or any of their
respective Affiliates shall be disregarded (unless all of the outstanding
Securities are then collectively owned by the Company, the Subsidiary
Guarantors or any of their respective Affiliates), except that, for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities that the Trustee knows
or has reason to know are so owned shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the
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Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or a Subsidiary), and no one else, shall cancel
and, at the written direction of the Company, shall dispose of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to
Section 2.07, the Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation. If the Company
or any Subsidiary Guarantor shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall, unless the Trustee fixes another record date pursuant to
Section 7.10, pay the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be
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placed only on the other identification numbers printed on the Securities.
ARTICLE THREE
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, with a copy to the
Credit Agent, of the Redemption Date and the principal amount of Securities to
be redeemed and whether it wants the Trustee to give notice of redemption to
the Holders at least 20 days (unless a shorter notice shall be satisfactory to
the Trustee) but not more than 60 days before the Redemption Date. Any such
notice may be cancelled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities to Be Redeemed.
If fewer than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed pro rata, by lot or by any
other method that the Trustee considers fair and appropriate and, if such
Securities are listed on any securities exchange, by a method that complies
with the requirements of such exchange.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or integral multiples thereof) of the principal amount of Securities that have
denominations larger than $1,000; provided that if no Securities other than PIK
Securities in denominations of less than $1,000 (or if greater than $1,000, not
in integral multiples of $1,000) remain outstanding or have not been called for
redemption, such PIK Securities may be redeemed. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
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SECTION 3.03. Notice of Redemption.
At least 20 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail to each
Holder whose Securities are to be redeemed at such Holder's registered
address, with a copy to the Credit Agent. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify the Securities to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(5) that, unless (a) the Company defaults in making the
redemption payment or (b) such redemption payment is prohibited
pursuant to Article Four or Article Twelve hereof or otherwise,
interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed and
that, after the Redemption Date, and upon surrender of such Security,
a new Security or Securities in aggregate principal amount equal to
the unredeemed portion thereof will be issued; and
(7) if fewer than all the Securities are to be redeemed,
the identification of the particular Securities (or portion thereof)
to be redeemed, as well as the aggregate principal amount of
Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption.
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SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Trustee or Paying
Agent, such Securities called for redemption shall be paid at the Redemption
Price unless prohibited pursuant to Article Four or Article Twelve or otherwise
pursuant to this Indenture. Securities that are redeemed by the Company or
that are purchased by the Company pursuant to a Net Proceeds Offer as described
in Section 5.16 or pursuant to a Change of Control Offer as described in
Section 5.15 or that are otherwise acquired by the Company will be surrendered
to the Trustee for cancellation.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price
of all Securities to be redeemed on that date (other than Securities or
portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation). The Paying Agent shall
promptly return to the Company any U.S. Legal Tender so deposited which is not
required for that purpose upon the written request of the Company, except with
respect to monies owed as obligations to the Trustee pursuant to Article Eight
and Article Twelve hereof.
If the Company complies with the preceding paragraph and
payment of the Securities called for redemption is not prohibited under Article
Four or Article Twelve or otherwise, then, unless the Company defaults in the
payment of such Redemption Price, interest on the Securities to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or
not such Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Trustee shall authenticate for the Holder a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
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ARTICLE FOUR
SUBORDINATION
SECTION 4.01. Securities Subordinated to Senior Indebtedness.
Anything herein to the contrary notwithstanding, the Company,
for itself and its successors, and each Holder, by his or her acceptance of
Securities, agrees that the payment of any Obligations under the Securities is
subordinated, to the extent and in the manner provided in this Article Four, to
the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness.
This Article Four shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Senior Indebtedness, and
such provisions are made for the benefit of the holders of Senior Indebtedness
and such holders are made obligees hereunder and any one or more of them may
enforce such provisions.
SECTION 4.02. Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 4.03 shall be applicable, upon (1) the
occurrence of a Payment Default and (2) receipt by the Trustee and the Company
from a Representative of written notice of such occurrence, then no payment
(other than payments previously made pursuant to Article Nine) or distribution
of any assets of the Company of any kind or character shall be made by the
Company on account of any Obligations under the Securities or on account of the
purchase or redemption or other acquisition of Securities unless and until such
Payment Default shall have been cured or waived or shall have ceased to exist
or such Senior Indebtedness as to which such Payment Default relates shall have
been discharged or paid in full in cash or Cash Equivalents, after which the
Company shall resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 4.03 shall be applicable, upon (1) the
occurrence of a Non-payment Default and (2) the earlier of (i) receipt by the
Trustee and the Company from a Representative of written notice of such
occurrence stating that such notice is a "Payment Blockage Notice" pursuant to
this Section 4.02(b) or (ii) if such Non-payment Default results from the
acceleration of the Securities, the date of such acceleration, no payment
(other than payments previously made pursuant to Article Nine) or distribution
of any assets of the Company of any kind or character
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shall be made by the Company on account of any Obligations under the Securities
or on account of the purchase or redemption or other acquisition of Securities
for a period ("Payment Blockage Period") commencing on the date of receipt by
the Trustee of the written notice of a Non-payment Default from such
Representative or the date of the acceleration referred to in clause (ii)
above, as the case may be, unless and until the earlier to occur of the
following events: (w) 179 days shall have elapsed since receipt of such notice
or the date of the acceleration of the Securities, as the case may be (provided
no Designated Senior Indebtedness shall theretofore have been accelerated),
(x) such Non-payment Default shall have been cured or waived or shall have
ceased to exist, (y) such Designated Senior Indebtedness shall have been
discharged or paid in full in cash or Cash Equivalents or (z) such Payment
Blockage Period shall have been terminated by written notice to the Company or
the Trustee from the Representative initiating such Payment Blockage Period or
the holders of at least a majority in principal amount of such issue of
Designated Senior Indebtedness initiating such Payment Blockage Period, after
which, in the case of clause (w), (x), (y) or (z), the Company shall resume
making any and all required payments in respect of the Securities, including
any missed payments. Notwithstanding any other provision of this Indenture, no
Non-payment Default with respect to Designated Senior Indebtedness which
existed or was continuing on the date of the commencement of any Payment
Blockage Period shall be, or shall be made, the basis for the commencement of a
second Payment Blockage Period, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days. In no event
shall a Payment Blockage Period extend beyond 179 days from the date of the
receipt of the written notice by the Trustee of a Non-payment Default or the
date of the acceleration of the Securities, as the case may be (the "Initial
Blockage Period"). Any number of additional Payment Blockage Periods may be
commenced during the Initial Blockage Period; provided, however, that no such
additional Payment Blockage Period shall extend beyond the Initial Blockage
Period. After the expiration of the Initial Blockage Period, no Payment
Blockage Period may be commenced under this Section 4.02(b) and no Guarantor
Payment Blockage Period may be commenced under Section 12.02(b) until at least
180 consecutive days have elapsed from the last day of the Initial Blockage
Period.
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any payment
prohibited by the foregoing provisions of this Section 4.02, then and in such
event such payment shall be segregated from other funds and held in trust by
the Trustee or such Holder or Paying Agent for the benefit of, and shall
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immediately be paid over to, the holders of Senior Indebtedness or to the
Representatives or as a court of competent jurisdiction shall direct.
SECTION 4.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
Company.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, upon any
dissolution, winding-up, total or partial liquidation or reorganization of the
Company (including, without limitation, in bankruptcy, insolvency or
receivership proceedings or upon any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company and whether
voluntary or involuntary):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full in cash or Cash Equivalents of
all amounts payable under Senior Indebtedness (including, with respect
to Designated Senior Indebtedness, any interest accruing after the
commencement of any such proceeding at the rate specified in the
applicable Designated Senior Indebtedness whether or not interest is
an allowed claim enforceable against the Company in any such
proceeding) before the Holders will be entitled to receive any payment
with respect to the Securities, and until all Obligations with respect
to the Senior Indebtedness are paid in full in cash or Cash
Equivalents, any distribution to which the Holders would be entitled
shall be made to the holders of Senior Indebtedness;
(b) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be
entitled except for the provisions of this Article Four, shall be paid
by the liquidating trustee or agent or other Person making such a
payment or distribution, directly to the holders of Senior
Indebtedness or their Representatives, ratably according to the
respective amounts of Senior Indebtedness remaining unpaid held or
represented by each, until all Senior Indebtedness remaining unpaid
shall have been paid in full in cash or Cash Equivalents after giving
effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any
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kind or character, whether in cash, property or securities, shall be
received by the Trustee or the Holders or any Paying Agent on account
of any Obligations under the Securities before all Senior
Indebtedness is paid in full in cash or Cash Equivalents, such payment
or distribution (subject to the provisions of Sections 4.06 and 4.07)
shall be received, segregated from other funds, and held in trust by
the Trustee or such Holder or Paying Agent for the benefit of, and
shall immediately be paid over to, the holders of Senior Indebtedness
or their Representatives, ratably according to the respective amounts
of Senior Indebtedness held or represented by each, until all Senior
Indebtedness remaining unpaid shall have been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person upon the terms and
conditions set forth in Article Six shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company for the
purposes of this Article Four if the Person formed by such consolidation or the
surviving entity of such merger or the Person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in such Article Six.
The Company shall give prompt notice to the Trustee prior to
any dissolution, winding-up, total or partial liquidation or reorganization
(including, without limitation, in bankruptcy, insolvency, or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshalling of the Company's assets and liabilities).
SECTION 4.04. Securityholders to Be Subrogated to Rights
of Holders of Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of
all Senior Indebtedness, the Holders of Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full in cash, and
for the
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purpose of such subrogation no payments or distributions to the holders of
Senior Indebtedness by or on behalf of the Company, or by or on behalf of the
Holders by virtue of this Article Four, which otherwise would have been made to
the Holders shall, as between the Company and the Holders, be deemed to be
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article Four are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Four shall
have been applied, pursuant to the provisions of this Article Four, to the
payment of all amounts payable under the Senior Indebtedness, then the Holders
shall be entitled to receive from the holders of such Senior Indebtedness any
such payments or distributions received by such holders of Senior Indebtedness
in excess of the amount sufficient to pay all amounts payable under or in
respect of the Senior Indebtedness in full in cash or Cash Equivalents.
SECTION 4.05. Obligations of the Company Unconditional.
Nothing contained in this Article Four or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Four, of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets or securities of the Company referred to
in this Article Four, the Trustee, subject to the provisions of Sections 8.01
and 8.02, and the Holders shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which any dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in
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such payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Four. Nothing in this Section 4.05 shall apply to the claims
of, or payments to, the Trustee under or pursuant to Section 8.07.
SECTION 4.06. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article Four or any other provision of this Indenture, the
Trustee shall not at any time be charged with knowledge of the existence of any
facts that would prohibit the making of any payment to or by the Trustee unless
and until the Trustee or any Paying Agent shall have received written notice
thereof from the Company or from one or more holders of Senior Indebtedness or
from any Representative therefor and, prior to the receipt of any such notice,
the Trustee, subject to the provisions of Sections 8.01 and 8.02, shall be
entitled in all respects conclusively to assume that no such fact exists.
(b) Subject to the provisions of Section 8.01 hereof, the
Trustee shall be entitled to rely on the delivery to it of a written notice to
the Trustee and the Company by a Person representing itself to be a holder of
Senior Indebtedness (or a trustee, fiduciary or agent therefor or other
representative thereof) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor or
other representative thereof); provided, however, that failure to give such
notice to the Company shall not affect in any way the ability of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Four, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Four, 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.
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SECTION 4.07. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 9.02 shall be
for the sole benefit of Securityholders and, to the extent allocated for the
payment of Securities, shall not be subject to the subordination provisions of
this Article Four. Otherwise, any deposit of assets or securities by or on
behalf of the Company with the Trustee or any Paying Agent (whether or not in
trust) for the payment of principal of or interest on any Securities shall be
subject to the provisions of this Article Four; provided that if prior to the
second Business Day preceding the date on which by the terms of this Indenture
any such assets may become distributable for any purpose (including, without
limitation, the payment of either principal of or interest on any Security) the
Trustee or such Paying Agent shall not have received with respect to such
assets the notice provided for in Section 4.06, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary received by it on or after such date; provided,
further, that no payment on any Guarantee shall constitute payment on behalf of
the Company for purposes of this Section 4.07. The foregoing shall not apply
to the Paying Agent if the Company or any Subsidiary or Affiliate of the
Company is acting as Paying Agent. Nothing contained in this Section 4.07
shall limit the right of the holders of Senior Indebtedness to recover payments
as contemplated by this Article Four.
SECTION 4.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act by any such holder, or by
any non-compliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
(b) By accepting the Securities, the Holders agree that
without limiting the generality of subsection (a) of this Section 4.08, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article
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Four or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (1)
change the manner, place, terms or time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (3) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 4.09. Securityholders Authorize Trustee to
Effectuate Subordination of Securities.
Each Holder of the Securities by such Holder's acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination
provisions contained in this Article Four, and appoints the Trustee such
Holder's attorney-in-fact for such purpose, including, in the event of any
dissolution, winding-up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
the Company) tending towards liquidation or reorganization of the business and
assets of the Company, the immediate filing of a claim for the unpaid balance
of such Holder's Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then any of the
holders of the Senior Indebtedness or their Representatives is hereby
authorized to file an appropriate claim for and on behalf of the Holders of
said Securities.
SECTION 4.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth
in this Article Four in respect of any Senior Indebtedness at any time held by
it to the same extent as any other holder of Senior Indebtedness, and nothing
in this Indenture shall be construed to deprive the Trustee of any of its
rights as such holder.
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SECTION 4.11. No Suspension of Remedies.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Four
shall not be construed as preventing the occurrence of a Default or an Event of
Default under Section 7.01.
Nothing contained in this Article Four shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate
the maturity of the Securities pursuant to Article Seven or to pursue any
rights or remedies hereunder or under applicable law, subject to the rights, if
any, under this Article Four of the holders, from time to time, of Senior
Indebtedness.
SECTION 4.12. No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or gross negligence) if it shall pay
over or deliver to the Holders of Securities or the Company or any other
Person, money or assets in compliance with the terms of this Indenture.
Nothing in this Section 4.12 shall affect the obligation of any Person other
than the Trustee to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their Representative.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent (other than the
Company or a Subsidiary) holds on that date U.S. Legal Tender or PIK Securities
designated for and sufficient to pay the installment; provided, however, that
U.S. Legal Tender held by the Trustee for the benefit of holders of Senior
Indebtedness or Guarantor Senior Indebtedness or the payment of which to the
Holders is prohibited pursuant to the provisions of Article Four or Article
Twelve or otherwise shall not be considered to be designated for the payment
of any
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installment of principal or interest on the Securities within the meaning of
this Section 5.01.
The Company shall pay interest on overdue principal at the
rate borne by the Securities and it shall pay interest on overdue installments
of interest at the same rate, to the extent lawful.
SECTION 5.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, the office or agency required under Section 2.03. The
Company shall give prior notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 13.02.
SECTION 5.03. Limitation on Restricted Payments.
The Company shall not, and shall cause each of its
Subsidiaries not to, directly or indirectly, make any Restricted Payment if, at
the time of such proposed Restricted Payment, or after giving effect thereto,
(a) a Default or an Event of Default shall have occurred and be continuing, (b)
the Company could not incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 5.12 or (c) the aggregate amount
expended for all Restricted Payments, including such proposed Restricted
Payment (the amount of any Restricted Payment, if other than cash, to be the
fair market value thereof at the date of payment, as determined in good faith
by the Board of Directors of the Company), subsequent to the Issue Date, shall
exceed the sum of (i) 25% of the aggregate Consolidated Net Income (or if such
Consolidated Net Income is a loss, minus 100% of such loss) of the Company
earned subsequent to the Closing Date and on or prior to the date of the
proposed Restricted Payment (the "Reference Date"), plus (ii) 100% of the
aggregate Net Proceeds received by the Company from any Person (other than a
Subsidiary of the Company) from the issuance and sale (including upon exchange
or conversion for other securities of the Company) subsequent to the Closing
Date and on or prior to the Reference Date of Qualified Capital Stock
(excluding (A) Qualified Capital Stock paid as a dividend on any Capital Stock
or as interest on any Indebtedness and (B) any Net Proceeds from issuances and
sales financed directly or indirectly using funds borrowed from the Company or
any Subsidiary of the Company, until and to the extent such
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borrowing is repaid), plus (iii) 100% of the aggregate net cash proceeds
received by the Company as capital contributions to the Company after the
Closing Date.
Notwithstanding the foregoing, if no Default or Event of
Default shall have occurred and be continuing as a consequence thereof, the
provisions set forth in the immediately preceding paragraph will not prevent
(1) the payment of any dividend within 60 days after the date of its
declaration if the dividend would have been permitted on the date of
declaration, (2) the acquisition of any shares of Capital Stock of the Company
or the repurchase, redemption or other repayment of any Subordinated
Indebtedness of the Company or a Subsidiary Guarantor in exchange for or solely
out of the proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company
and (3) the repurchase, redemption or other repayment of any Subordinated
Indebtedness of the Company or a Subsidiary Guarantor in exchange for or solely
out of the proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of (A) Subordinated Indebtedness of the Company or
(B) solely in the case of Subordinated Indebtedness of a Subsidiary Guarantor,
Subordinated Indebtedness of such Subsidiary Guarantor, in either case with a
Weighted Average Life to Maturity equal to or greater than the then remaining
Weighted Average Life to Maturity of the Subordinated Indebtedness repurchased,
redeemed or repaid; provided, however, that each dividend paid in accordance
with clause (1) above, each acquisition, repurchase, redemption or other
repayment made in accordance with, or of the type set forth in, clause (2)
above, shall each be counted for purposes of computing amounts expended
pursuant to subclause (c) in the immediately preceding paragraph, and no
amounts expended pursuant to clause (3) above shall be so counted.
Prior to making any Restricted Payment under the first
paragraph of this Section 5.03, the Company shall deliver to the Trustee an
Officers' Certificate setting forth the computation by which the amount
available for Restricted Payments pursuant to such paragraph was determined.
The Trustee shall have no duty or responsibility to determine the accuracy or
correctness of this computation and shall be fully protected in relying on such
Officers' Certificate.
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SECTION 5.04. Corporate Existence.
Except as otherwise permitted by Article Six, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate or other existence
of each of its Subsidiaries in accordance with the respective organizational
documents of each such Subsidiary and the rights (charter and statutory) and
franchises of the Company and each such Subsidiary; provided, however, that the
Company shall not be required to preserve, with respect to itself, any right or
franchise, and with respect to any of its Subsidiaries, any such existence,
right or franchise, if the Board of Directors of the Company or such
Subsidiary, as the case may be, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company or any
such Subsidiary.
SECTION 5.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim if either (a) the
amount, applicability or validity thereof is being diligently contested in good
faith and an adequate reserve has been established therefor to the extent
required by GAAP or (b) the failure to make such payment or effect such
discharge (together with all other such failures) would not have a material
adverse effect on the financial condition or results or operations of the
Company and its Subsidiaries taken as a whole.
SECTION 5.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful
to the conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted
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at all times unless the failure to so maintain such properties (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and its
Subsidiaries taken as a whole; provided, however, that nothing in this Section
5.06 shall prevent the Company or any Subsidiary from discontinuing the
operation or maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is either (i) in the ordinary course
of business, (ii) in the good faith judgment of the Board of Directors of the
Company or the Subsidiary concerned, or of the senior officers of the Company
or such Subsidiary, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, or (iii)
otherwise permitted by this Indenture.
(b) The Company shall provide or cause to be provided,
for itself and each of its Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods as shall be either (i) consistent with past practices of the
Company or the applicable Subsidiary or (ii) customary, in the reasonable, good
faith opinion of the Company, for corporations similarly situated in the
industry, unless the failure to provide such insurance (together with all other
such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole.
SECTION 5.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120
days after the end of the Company's fiscal year an Officers' Certificate
stating that a review of its activities and the activities of its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether it has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant and no event of
default in respect of any payment obligation under the Senior Credit
Facilities, Default or Event of Default occurred during such year or, if such
signers do know of such an event of default, Default or Event of Default,
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the certificate shall describe the event of default, Default or Event of
Default and its status with particularity. The Officers' Certificate shall
also notify the Trustee should the Company elect to change the manner in which
it fixes its fiscal year end.
(b) So long as it is not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
Company shall deliver to the Trustee within 120 days after the end of each
fiscal year a written statement by the Company's independent certified public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default has come to their attention and if such a Default has come to their
attention, specifying the nature and period of existence thereof.
(c) The Company shall deliver to the Trustee, forthwith
upon becoming aware, and in any event within 10 days after the occurrence, of
(i) any Default or Event of Default in the performance of any covenant,
agreement or condition contained in this Indenture; (ii) any event of default
in respect of any payment obligation under the Senior Credit Facilities or any
event of default under any other bond, debenture, note, or other evidence of
Indebtedness of the Company or any of its Subsidiaries, or under any mortgage,
indenture or other instrument if such event of default related to Indebtedness
at any time in an aggregate principal amount exceeding $10,000,000, an
Officers' Certificate specifying with particularity such event.
SECTION 5.08. Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States of America, all states and
municipalities thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the foregoing, in
respect of the conduct of their respective businesses and the ownership of
their respective properties, except such as are being diligently contested in
good faith and except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole.
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SECTION 5.09. Commission Reports.
The Company will deliver to the Trustee within 15 days after
the filing of the same with the Commission, copies of the quarterly and annual
report and of the information documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company will file with the Commission, to the extent permitted, and
provide the Trustee and Holders of Securities with such annual reports and such
information, documents and other reports specified in Section 13 and 15(d) of
the Exchange Act. The Company will also comply with the other provisions of
TIA Section 314(a).
SECTION 5.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.11. Limitation on Transactions with Affiliates.
(a) Neither the Company nor any of its Subsidiaries shall
(i) sell, lease, transfer or otherwise dispose of any of its properties or
assets, or issue securities (other than equity securities which do not
constitute Disqualified Capital Stock) to, (ii) purchase any property, assets
or securities from, (iii) make any Investment in, or (iv) enter into or suffer
to exist any contract or agreement with or for the benefit of, an Affiliate or
a Significant Stockholder (or any Affiliate of such Significant Stockholder) of
the Company or any Subsidiary (an "Affiliate Transaction"), other than (x)
Affiliate Transactions permitted under Section 5.11(b) and (y) Affiliate
Transactions in the ordinary course of business that are fair to the Company or
such Subsidiary, as the case may be, and on terms at least as favorable
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as might reasonably have been obtainable at such time from an unaffiliated
party; provided that (A) with respect to Affiliate Transactions involving
aggregate payments equal to or in excess of $500,000 and less than $1,000,000,
the Company or such Subsidiary, as the case may be, shall have delivered an
Officers' Certificate to the Trustee certifying that such transaction or series
of transactions complies with clause (y) above (other than the requirement set
forth in such clause (y) that such Affiliate Transaction be in the ordinary
course of business), (B) with respect to Affiliate Transactions involving
aggregate payments equal to or in excess of $1,000,000 and less than
$3,000,000, the Company or such Subsidiary, as the case may be, shall have
delivered an Officers' Certificate to the Trustee certifying that such
Affiliate Transaction complies with clause (y) above (other than the
requirement set forth in such clause (y) that such Affiliate Transaction be in
the ordinary course of business) and that such Affiliate Transaction has
received the approval of a majority of the disinterested members of the Board
of Directors of the Company or such Subsidiary, as the case may be, or in the
absence of any such approval by the disinterested members of the Board of
Directors of the Company or such Subsidiary, as the case may be, that an
Independent Financial Advisor has reasonably and in good faith determined that
the financial terms of such Affiliate Transaction are fair to the Company or
such Subsidiary, as the case may be, or that the terms of such Affiliate
Transaction are at least as favorable as might reasonably have been obtained at
such time from an unaffiliated party and that such Independent Financial
Advisor has provided written confirmation of such determination to the Board of
Directors and (C) with respect to Affiliate Transactions involving aggregate
payments equal to or in excess of $3,000,000, the Company or such Subsidiary,
as the case may be, shall have delivered to the Trustee a written opinion from
an Independent Financial Advisor to the effect that the financial terms of such
Affiliate Transaction are fair to the Company or such Subsidiary, as the case
may be, or that the terms of such Affiliate Transaction are at least as
favorable as those that might reasonably have been obtained at the time from an
unaffiliated party.
(b) The provisions of Section 5.11(a) shall not apply to
(i) any Permitted Investment, (ii) any Restricted Payment that is made in
compliance with the provisions of Section 5.03, (iii) reasonable and customary
fees and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Subsidiary of the
Company, as determined by the Board of Directors of the Company or such
Subsidiary or the senior management thereof in good faith, (iv) transactions
exclusively between or among the Company and any
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of its wholly-owned Subsidiaries or exclusively between or among such
wholly-owned Subsidiaries; provided that such transactions are not otherwise
prohibited by this Indenture, (v) any agreement as in effect as of the Closing
Date or any agreements similar thereto or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
so long as any such amendment is not disadvantageous to the Securityholders in
any material respect and (vi) transactions permitted by, and complying with,
the provisions of Section 6.01.
SECTION 5.12. Limitation on Incurrences of Additional Indebtedness.
The Company shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to incur, assume, guarantee, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for the payment of (collectively "incur") any Indebtedness other
than Permitted Indebtedness; provided, however, that if no Default with respect
to payment of principal of, or interest on, the Securities or Event of Default
shall have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any Subsidiary Guarantor
may incur Indebtedness if the Cash Flow Leverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the time at which such
additional Indebtedness is incurred would have been not greater than (i) 6.0 to
1 if such Indebtedness is to be incurred on or before July 15, 1998, (ii) 5.5
to 1 if such Indebtedness is to be incurred between July 15, 1998 and July 15,
2000 and (iii) 5.0 to 1 if such Indebtedness is to be incurred on or after July
15, 2000 in each case determined on a pro forma basis in accordance with GAAP
to give effect to the incurrence of such additional Indebtedness and (if
applicable) the application of the net proceeds therefrom (including, without
limitation, to refinance other Indebtedness and/or consummate the Company's or
any of a Company's Subsidiaries' acquisition of any Person or operating
assets), as if such additional Indebtedness had been incurred and any such
refinancing and/or acquisition had occurred at the beginning of such
four-quarter period. In addition, a Subsidiary of the Company may incur
Acquired Indebtedness to the extent such Indebtedness could have been incurred
by the Company pursuant to the proviso to the immediately preceding sentence.
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SECTION 5.13. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or suffer to exist, or allow to
become effective any consensual Payment Restriction with respect to any of the
Company's Subsidiaries, except for (a) any such restrictions contained in (i)
the Senior Credit Facilities in effect on the Issue Date, as any such payment
restriction may apply to any present or future Subsidiary of the Company, (ii)
this Indenture and any agreement in effect at or entered into on the Closing
Date, (iii) Indebtedness of a Person existing at the time such Person becomes a
Subsidiary of the Company (provided that (x) such Indebtedness is not incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary
of the Company, (y) such restriction is not applicable to any Person, or the
properties or assets or any Person, other than the Person so acquired and (z)
such Indebtedness is otherwise permitted to be incurred pursuant to Section
5.12), (iv) secured Indebtedness otherwise permitted to be incurred pursuant to
Sections 5.12 and 5.14 that limits the right of the debtor to dispose of the
assets securing such Indebtedness; (b) customary non-assignment provisions
restricting subletting or assignment of any lease or other agreement entered
into by a Subsidiary of the Company; (c) customary net worth provisions
contained in leases and other agreements entered into by a Subsidiary of the
Company in the ordinary course of business; (d) customary restrictions with
respect to a Subsidiary of the Company pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary; (e) restrictions contained in
Indebtedness incurred to refinance, refund, extend or renew Indebtedness
referred to in clause (a) above; provided that the restrictions contained
therein are not materially more restrictive taken as a whole than those
provided for in such Indebtedness being refinanced, refunded, extended or
renewed; and (f) Payment Restrictions contained in any other Indebtedness
permitted to be incurred subsequent to the Closing Date pursuant to the
provisions of Section 5.12; provided that any such Payment Restrictions are
ordinary and customary with respect to the type of Indebtedness being incurred
(under the relevant circumstances) and, in any event, no more restrictive than
the most restrictive Payment Restrictions in effect on the Closing Date.
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SECTION 5.14. Limitation on Liens.
The Company shall not and shall not permit any of its
Subsidiaries to create, incur, assume or suffer to exist any Liens upon any of
their respective assets unless the Securities are equally and ratably secured
by the Liens covering such assets, except for (i) Liens on assets of the
Company securing Senior Indebtedness and Liens on assets of a Subsidiary
Guarantor which, at the time of incurrence, secure Senior Indebtedness or
Guarantor Senior Indebtedness, (ii) existing and future Liens securing (A)
Indebtedness and other obligations of the Company and its Subsidiaries under
the Senior Credit Facilities or any refinancing or replacement thereof in whole
or in part permitted under this Indenture and (B) obligations under Interest
Swap Obligations entered into with the lenders under the Senior Credit
Facilities and their Affiliates, (iii) Permitted Encumbrances, (iv) Liens
securing Acquired Indebtedness; provided that such Liens (x) are not incurred
in connection with, or in contemplation of, the acquisition of the property or
assets acquired and (y) do not extend to or cover any property or assets of the
Company or any Subsidiary other than the property or assets so acquired, (v)
Liens to secure Capitalized Lease Obligations and certain other Indebtedness
that is otherwise permitted under this Indenture; provided that (A) any such
Lien is created solely for the purpose of securing such other Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
sales and excise taxes, installation and delivery charges and other direct
costs of, and other direct expenses paid or charged in connection with, the
purchase (whether through stock or asset purchase, merger or otherwise) or
construction) or improvement of the property subject thereto (whether real or
personal, including fixtures and other equipment), (B) the principal amount of
the Indebtedness secured by such Lien does not exceed 100% of such costs and
(C) such Lien does not extend to or cover any other property other than such
item of property and any improvements on or attachments to such item, (vi)
Liens existing on the Issue Date, (vii) Liens in favor of the Trustee under
this Indenture and any substantially equivalent Lien granted to any trustee or
similar institution under any indenture for Indebtedness permitted by the terms
of this Indenture, and (viii) any replacement, extension or renewal, in whole
or in part, of any Lien described in the foregoing clauses including in
connection with any Refinancing of the Indebtedness, in whole or in part,
secured by any such Lien; provided that to the extent any such clause limits
the amount secured or the assets subject to such Liens, no extension or renewal
shall increase the amount or the assets subject to such Liens, except to the
extent that the Liens
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associated with such additional assets are otherwise permitted hereunder.
SECTION 5.15. Limitation on Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require the repurchase of such Holder's
Securities pursuant to the offer described in paragraph (b) below (the "Change
of Control Offer"), at a purchase price equal to 101% of the principal amount
thereof plus accrued and unpaid interest to the date of repurchase. Prior to
the mailing of the notice of a Change of Control Offer provided for in
paragraph (b) below, within 30 days following any Change of Control the Company
shall either (a) repay in full and terminate all commitments under Indebtedness
under the Senior Credit Facilities to the extent the terms thereof require
repayment upon a Change of Control (or offer to repay in full and terminate all
commitments under all such Indebtedness under the Senior Credit Facilities and
repay the Indebtedness owed to each lender which has accepted such offer), or
(b) obtain the requisite consent under the Senior Credit Facilities, the terms
of which require repayment upon a Change of Control, to permit the repurchase
of the Securities as provided for in this Section 5.15. The Company shall
first comply with the covenant in the immediately preceding sentence before it
shall be required to repurchase Securities pursuant to this Section 5.15. The
Company's failure to comply with the covenants described in this paragraph
shall constitute an Event of Default under this Indenture.
(b) Within 30 days following the date upon which the
Change of Control occurred (the "Change of Control Date"), the Company must
send, by first class mail, a notice to each Holder of Securities, with a copy
to the Trustee, which notice shall govern the terms of the Change of Control
Offer. The notice to the Holders shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Change of
Control Offer. The Company shall give notice of an event giving rise to a
Change of Control on the same date and in the same manner to all Holders of
Securities. Such notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 5.15 and that all Securities tendered will be
accepted for payment;
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30
days nor later than 40 days from the date such notice
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is mailed, other than as may be required by law) (the "Change of
Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making
payment therefor or (ii) such payment is prohibited pursuant to
Article Four, any Security accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to the Change of Control Offer will be required to surrender
the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the Business Day prior to the Change of Control Payment
Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two Business
Days prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Securities the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Security purchased;
(7) that Holders whose Securities are purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portions of the Securities surrendered; provided that each
Security purchased and each Security issued shall be in an original
principal amount of $1,000 or integral multiples thereof; provided,
however, that if no Securities other than PIK Securities in
denominations of less than $1,000 (or if greater than $1,000, not in
integral multiples of $1,000) remain outstanding or have not been
called for redemption, such PIK Securities may be purchased;
(8) that each Change of Control Offer is required to
remain open for at least 20 Business Days and until 12:00 Midnight New
York City time on the applicable Change of Control Payment Date; and
(9) the circumstances and relevant facts regarding such
Change of Control.
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On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the purchase price of all Securities so tendered and
(iii) deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price (and the Trustee
shall promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered)
unless such payment is prohibited pursuant to Article Four or otherwise. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date. For purposes
of this Section 5.15, the Trustee shall act as the Paying Agent.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer. To the extent
the provisions of any securities laws or regulations conflict with the
provisions under this Section 5.15, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 5.15 by virtue thereof.
SECTION 5.16. Offer to Repurchase Securities with
Net Cash Proceeds of Certain Asset Sales.
The Company will not, and will not permit any of its Subsidiaries
to, make any Asset Sale, unless (a) the Company or the applicable
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the fair market value of the assets sold, (b) at least 85% of the
consideration received therefor by the Company or the applicable Subsidiary is
in the form of cash or Cash Equivalents; provided that the Company or the
applicable Subsidiary will not be required to comply with this clause (b) with
respect to a Permitted Asset Swap or a Houston Disposition and (c) upon
consummation of an Asset Sale, the Company will within 270 days of the receipt
of the proceeds therefrom, either: (i) apply or cause its Subsidiary to apply
the Net Cash Proceeds of any Asset Sale to a Related Business Investment; (ii)
apply or cause to be applied such Net Cash Proceeds (A) to the permanent
repayment of Senior Indebtedness or
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Guarantor Senior Indebtedness or (B) in the case of an Asset Sale by a
Subsidiary of the Company, to the permanent repayment of Indebtedness of such
Subsidiary; provided, however, that the repayment of any revolving loan (under
the Senior Credit Facilities or otherwise) shall result in a permanent
reduction in the commitment thereunder; or (iii) after such time as the
accumulated Net Cash Proceeds for asset sales equals or exceeds $10,000,000,
apply or cause to be applied such Net Cash Proceeds in excess of $5,000,000 to
the purchase of Securities tendered to the Company for purchase at a price
equal to 100% of the principal amount thereof plus accrued interest thereon to
the date of purchase pursuant to an offer to purchase made by the Company as
set forth below (a "Net Proceeds Offer"). Notwithstanding the foregoing, the
Company shall not be required to comply with this Section 5.16 with respect to
a Denver Disposition other than clause (a) of the immediately preceding
sentence if any securities received by the Company as consideration for such
Denver Disposition (including the related cash flow) shall be pledged to secure
the Obligations of the Company under the Senior Credit Facilities.
If the Company is required to make a Net Proceeds Offer
pursuant to the preceding paragraph, notice of such Net Proceeds Offer pursuant
to this Section 5.16 will be mailed to record Holders of Securities as shown on
the register of Holders not more than 270 days after the relevant Asset Sale,
with a copy to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 5.16 and that all Securities tendered will be accepted for
payment; provided, however, that if the aggregate principal amount of
Securities tendered in a Net Proceeds Offer plus accrued interest at
the expiration of such offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000 or multiples thereof shall be purchased; provided that if no
Securities other than PIK Securities in denominations of less than
$1,000 (or if greater than $1,000, not in integral multiples of
$1,000) remain outstanding or have not been called for redemption,
such PIK Securities may be purchased);
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier
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than 30 days nor later than 40 days from the date such notice is
mailed, other than as may be required by law) (the "Proceeds Purchase
Date");
(3) that any Security not tendered will continue to
accrue interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making
payment therefor or (ii) such payment is prohibited pursuant to
Article Four or otherwise, any Security accepted for payment pursuant
to the Net Proceeds Offer shall cease to accrue interest after the
Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two Business
Days prior to the Proceeds Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have
such Security purchased; and
(7) that Holders whose Securities were purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in an
original principal amount of $1,000 or integral multiples thereof;
provided, however, that if no Securities other than PIK Securities in
denominations of less than $1,000 (or if greater than $1,000, not in
integral multiples of $1,000) remain outstanding or have not been
called for redemption, such PIK Securities may be purchased.
On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (b)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Securities to be purchased and (iii) deliver to the
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Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in
an amount equal to the purchase price (and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered) unless
such payment is prohibited pursuant to Article Four hereof or otherwise. The
Company will publicly announce the results of the Net Proceeds Offer on or as
soon as practicable after the Proceeds Purchase Date. For purposes of this
Section 5.16, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Securities
pursuant to a Net Proceeds Offer shall be returned by the Trustee to the
Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
purchase of Securities pursuant to a Net Proceeds Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 5.16, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 5.16 by virtue thereof.
SECTION 5.17. Guarantees of Certain Indebtedness.
The Company will not permit any of its domestic Subsidiaries
(other than the Subsidiary Guarantors initially signatory to this Indenture) to
(a) incur, guarantee or secure through the granting of Liens the payment of any
Indebtedness under the Senior Credit Facilities or Refinancings thereof or (b)
pledge any intercompany notes representing obligations of any of its
Subsidiaries to secure the payment of any Indebtedness under the Senior Credit
Facilities or Refinancings thereof, in each case unless such Subsidiary, the
Company and the Trustee execute and deliver a supplemental indenture evidencing
such Subsidiary's Guarantee hereunder. Thereafter, such Subsidiary shall be a
Subsidiary Guarantor for all purposes of this Indenture.
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SECTION 5.18. Limitation on Preferred Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries to issue
Preferred Stock (other than to the Company or to a wholly-owned Subsidiary of
the Company) or permit any Person (other than the Company or a wholly-owned
Subsidiary of the Company) to own any Preferred Stock of any Subsidiary of the
Company.
SECTION 5.19. Limitation on Other Senior Subordinated Indebtedness.
Neither the Company nor any Subsidiary Guarantor will,
directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) that is subordinate in right of payment to any Indebtedness of
the Company or such Subsidiary Guarantor, as the case may be, unless such
Indebtedness is either (a) pari passu in right of payment with the Securities
or the Guarantee of such Subsidiary Guarantor, as the case may be, or (b)
subordinate in right of payment to the Securities or the Guarantee of such
Subsidiary Guarantor, as the case may be, in the same manner and at least to
the same extent as the Securities are subordinate to Senior Indebtedness or as
such Guarantee is subordinated to Guarantor Senior Indebtedness of such
Subsidiary Guarantor, as the case may be.
SECTION 5.20. Offer to Repurchase Securities with Net Cash Proceeds of
Certain Issuances of Debt and Equity Securities.
If no amounts are outstanding under the Senior Credit
Facilities and the Company issues any debt or equity securities in compliance
with the terms of this Indenture for gross proceeds in excess of $10,000,000,
then the Company shall use the net cash proceeds (after deducting reasonable
and customary commissions and expenses) to make an offer to purchase Securities
at a purchase price equal to 100% of the principal amount thereof plus accrued
interest thereon to the date of purchase. The provisions relating to an offer
to purchase pursuant to this Section 5.20 shall be substantially similar to
those relating to a Net Proceeds Offer pursuant to Section 5.16, with
appropriate changes.
SECTION 5.21. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment
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of any of the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Notes which so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE SIX
SUCCESSOR CORPORATION
SECTION 6.01. Limitations on Mergers and Certain Other Transactions.
(a) The Company shall not in a single transaction or
through a series of related transactions (i) consolidate with or merge with or
into any other Person, or transfer (by lease, assignment, sale or otherwise)
all or substantially all of its properties and assets as an entirety or
substantially as an entirety to another Person or group of affiliated Persons
or (ii) adopt a Plan of Liquidation, unless, in either case:
(1) either the Company shall be the continuing Person, or
the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety or
substantially as an entirety are transferred (or, in the case of a
Plan of Liquidation, any Person to which assets are transferred) (the
Company or such other Person being hereinafter referred to as the
"Surviving Person") shall be a corporation organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplement, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after and giving effect to such
transaction and the assumption contemplated by clause (1) above and
the incurrence or anticipated incurrence of any Indebtedness to be
incurred in connection therewith, (A) the Surviving Person shall have
a Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) the
Surviving Person could incur at least $1 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 5.12;
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(3) immediately before and immediately after and giving
effect to such transaction and the assumption of the obligations as
set forth in clause (1) above and the incurrence or anticipated
incurrence of any Indebtedness to be incurred in connection therewith,
no Default or Event of Default shall have occurred and be continuing;
and
(4) each Subsidiary Guarantor, unless it is the other
party to the transaction, shall have by supplemental indenture
confirmed that its Guarantee of the obligations of the Company under
the Securities and this Indenture shall apply, without alteration or
amendment as such Guarantee applies on the date it was granted under
this Indenture to the obligations of the Company under this Indenture
and the Securities to the obligations of the Company or such Person as
the case may be, under this Indenture and the Securities, after
consummation of such transaction.
(b) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one
or more direct or indirect Subsidiaries, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Company shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
SECTION 6.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 6.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; provided, however, that solely for
purposes of computing amounts described in subclause (c) of the first paragraph
of Section 5.03, any such successor Person shall only be deemed to have
succeeded to and be substituted for the Company with respect to periods
subsequent to the effective time of such merger, consolidation or transfer of
assets.
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ARTICLE SEVEN
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default.
An "Event of Default" occurs if:
(i) the Company defaults in the payment of interest on
any Securities when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment shall
be prohibited by the provisions of Article Four;
(ii) the Company defaults in the payment of the principal
of, or premium, if any, on the Securities when due whether at
maturity, upon acceleration, redemption, required repurchase or
otherwise, whether or not such payment shall be prohibited by the
provisions of Article Four;
(iii) the Company fails to comply with any of its
agreements contained in the Securities or this Indenture (other than a
default specified in clause (i) or (ii) above), if such failure
continues for the period and after the notice specified below;
(iv) there shall be a default under any Indebtedness of
the Company or any of its Subsidiaries, whether such Indebtedness now
exists or shall hereafter be created, if both (A) such default either
(1) results from the failure to pay any such Indebtedness at its
stated final maturity or (2) relates to an obligation other than the
obligation to pay such Indebtedness at its stated final maturity and
results in the holder or holders of such Indebtedness causing such
Indebtedness to become due prior to its stated final maturity and (B)
the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at stated final maturity or the maturity of which has been
so accelerated, aggregates $10,000,000 or more at any one time
outstanding;
(v) one or more judgments, orders or decrees of any court
or regulatory or administrative agency of competent jurisdiction for
the payment of money in excess of $10,000,000 (to the extent not
covered by third-party insurance as to which the insurance company has
acknowledged coverage), either individually or in the aggregate, shall
be entered against the Company or any Subsidiary of the Company
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or any of their respective properties and shall not be discharged and
there shall have been a period of 60 days after the date on which any
period for appeal has expired and during which a stay of enforcement
of such judgment, order or decree shall not be in effect;
(vi) either the Company or any Material Subsidiary
pursuant to or within the meaning of any Bankruptcy Law: (a)
commences a voluntary case or proceeding; (b) consents to the entry of
a Bankruptcy Order for relief against it in an involuntary case or
proceeding or the commencement of any case or proceeding against it;
(c) consents to the appointment of a custodian of it or for
substantially all of its property; or (d) makes a general assignment
for the benefit of its creditors;
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the
Company or any Material Subsidiary, in an involuntary case or
proceeding; (b) appoints a custodian of the Company or any Material
Subsidiary, or for all or any substantial part of their respective
properties; or (c) orders the liquidation of the Company or any
Material Subsidiary and in each case the order or decree remains
unstayed and in effect for 60 days;
(viii) the lenders under the Senior Credit Facilities shall
commence judicial proceedings to foreclose upon any material portion of
the assets of the Company and its Subsidiaries or shall have exercised any
right under applicable law or applicable security documents to take
ownership of a material portion of such assets in lieu of foreclosure; or
(ix) any of the Guarantees shall be declared or adjudged
invalid in a final judgment or order issued by any court or
governmental authority.
A Default under clause (iii) above (other than in the case of
any Default under Section 5.03, 5.15, 5.16 or 6.01, which Defaults shall be
Events of Default with the notice specified in this paragraph but without the
passage of time specified in this paragraph) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities notify the Company and the Trustee, of the
Default, and the Company does not cure the Default within 30 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a
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"Notice of Default." Such notice shall be given by the Trustee if so requested
by the Holders of at least 25% in principal amount of the Securities then
outstanding. When a Default is cured, it ceases.
SECTION 7.02. Acceleration.
(a) If an Event of Default (other than an Event of
Default specified in Section 7.01(vi) or (vii) with respect to the Company or a
Subsidiary Guarantor) occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Securities may, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the then outstanding Securities shall, declare due and
payable all unpaid principal and interest accrued and unpaid on the then
outstanding Securities by written notice to the Company and the Trustee
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Senior Credit Facilities, shall become due and payable upon the first to
occur of an acceleration under the Senior Credit Facilities, or five business
days after receipt by the Company and the Credit Agent of such Acceleration
Notice. If an Event of Default specified in Section 7.01(vi) or (vii) occurs
with respect to the Company or a Subsidiary Guarantor, all unpaid principal of
and accrued interest on all then outstanding Securities shall be immediately
due and payable without any declaration or other act on the part of the Trustee
or any of the Holders. Upon payment of such principal amount, interest, and
premium, if any, all of the Company's and the Subsidiary Guarantor's
obligations under the Securities and this Indenture, other than obligations
under Section 8.07, shall terminate. After a declaration of acceleration, the
Holders of a majority in principal amount of the Securities then outstanding,
by notice to the Trustee, may rescind an acceleration and its consequences if
(i) all existing Events of Default, other than the non-payment of the principal
of the Securities which has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction, (iv) the Company has
paid or deposited with the Trustee a sum sufficient to pay all sums paid or
advanced by the Trustee under this Indenture and the compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and (v) in
the event of the cure or waiver of an Event of Default
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of the type described in clauses (vi), (vii), (viii), or (ix) of Section 7.01,
the Trustee shall have received an Officer's Certificate and an Opinion of
Counsel that such Event of Default has been cured or waived.
(b) In the event of a declaration of acceleration under
this Indenture because an Event of Default set forth in Section 7.01(iv) has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if either (i) the holders of the
Indebtedness which is the subject of such Event of Default have waived such
failure to pay at maturity or have rescinded the acceleration in respect of
such Indebtedness within 90 days of such maturity or declaration of
acceleration, as the case may be, and no other Event of Default has occurred
during such 90-day period which has not been cured or waived, or (ii) such
Indebtedness shall have been discharged or the maturity thereof shall have been
extended such that it is not then due and payable, or the underlying default
has been cured, within 90 days of such maturity or declaration of acceleration,
as the case may be.
SECTION 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
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 to the extent permitted by law.
SECTION 7.04. Waiver of Past Defaults.
Subject to Sections 7.07 and 10.02, the Holders of a majority
in principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as
specified in clauses (i) and (ii) of Section 7.01. When a Default or Event of
Default is waived, it is cured and ceases.
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SECTION 7.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it, including, without limitation,
any remedies provided for in Section 7.03. Subject to Section 8.01, however,
the Trustee may refuse to follow any direction that conflicts with any law or
this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.06. 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 of a
continuing Event of Default;
(2) the Holder or Holders of at least 25% in principal
amount of the outstanding Securities make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be incurred in compliance with such request;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holder or Holders of a
majority in principal amount of the outstanding Securities do not give
the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
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SECTION 7.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 7.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 7.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 7.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 8.07. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting
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the Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 7.10. Priorities.
If the Trustee collects any money pursuant to this Article
Seven, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: subject to Article Four and Article Twelve, to
Holders for interest accrued on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for interest;
Third: subject to Article Four and Article Twelve, to Holders
for principal amounts due and unpaid on the Securities, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal; and
Fourth: subject to Article Four and Article Twelve, to the
Company or the Subsidiary Guarantors, as their respective interests
may appear.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to
this Section 7.10.
SECTION 7.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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SECTION 7.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article Seven or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 7.13. 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 7.13 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 7.07, or a suit by a Holder or Holders of more
than 10% in principal amount of the outstanding Securities.
ARTICLE EIGHT
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 8.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent Person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
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(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. 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 willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 8.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 8.01.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree with the Company. Assets
held in trust by the Trustee need not be segregated from other assets except to
the extent required by law.
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SECTION 8.02. Rights of Trustee.
Subject to Section 8.01:
(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 consult with counsel and may require an Officers' Certificate or
an Opinion of Counsel, which shall conform to Sections 13.04 and
13.05. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or
opinion.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee shall not be liable for any action that
it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
(e) 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.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
SECTION 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 8.10 and 8.11.
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SECTION 8.04. Trustee's Disclaimer.
The Trustee 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 in the Securities other than the Trustee's
certificate of authentication.
SECTION 8.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Holder of
Securities notice of the Default or Event of Default within 90 days after such
Default or Event of Default occurs; provided, however, that, except in the case
of a Default or Event of Default in the payment of the principal of or interest
on any Security, including the failure to make payment on a Change of Control
Payment Date pursuant to a Change of Control Offer or payment when due pursuant
to a Net Proceeds Offer the Trustee may withhold such notice if it in good
faith determines that withholding such notice is in the interest of the
Holders.
SECTION 8.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Securityholder a brief report
dated as of such that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section Section 313(b) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission
and each stock exchange, if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become
listed on any stock exchange.
SECTION 8.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. 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
disbursements, expenses
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and advances incurred or made by it. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability incurred by it except for such actions
to the extent caused by any negligence or bad faith on its part, arising out of
or in connection with the administration of this trust and its rights or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel; provided that the Company will not be required to pay such fees
and expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse
any expense or indemnify against any loss or liability to the extent incurred
by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
8.07, the Trustee shall have a lien prior to the Securities on all assets held
or collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(vi) or (vii) occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee and appoint a successor trustee with the Company's consent,
by so notifying the Company and the Trustee. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the Securities may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided in Section 8.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
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SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Section Section 310(a)(1) and 310(a)(5). The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
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 8.11. 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 NINE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Obligations of
the Company and the Subsidiary Guarantors.
The Company may terminate its obligations under the Securities
and this Indenture, and the obligations of any Subsidiary Guarantor shall
terminate, except those obligations referred to in the penultimate paragraph of
this Section 9.01, if all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced or
paid or Securities for whose payment money has theretofore been deposited with
the Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 9.04)
have been delivered to the Trustee for cancellation and the Company has paid
all sums payable by it hereunder, or if:
(1) either (i) pursuant to Article Three, the Company
shall have given notice to the Trustee and mailed a notice of
redemption to each Holder of the redemption of all of the Securities
under arrangements satisfactory to the Trustee for the giving of such
notice or (ii) all Securities have otherwise become due and payable
hereunder;
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(2) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee satisfactory to
the Trustee, under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee, as trust funds in trust
solely for the benefit of the Holders for that purpose, money in such
amount as is sufficient without consideration of reinvestment of such
interest, to pay principal of, premium, if any, and interest on the
outstanding Securities to maturity or redemption; provided that the
Trustee shall have been irrevocably instructed to apply such money to
the payment of said principal, premium, if any, and interest with
respect to the Securities; and provided, further, that from and after
the time of deposit, the money deposited shall not be subject to the
rights of holders of Senior Indebtedness pursuant to the provisions of
Article Four and Article Twelve;
(3) no Default or Event of Default with respect to this
Indenture or the Securities shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit
and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company
is a party or by which it is bound;
(4) the Company shall have paid all other sums payable by
it thereunder; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for the termination of the Company's
and any Subsidiary Guarantor's obligation under the Securities and
this Indenture have been complied with. Such Opinion of Counsel shall
also state that such satisfaction and discharge does not result in a
default under the Senior Credit Facilities (if then in effect) or any
other agreement or instrument then known to such counsel that binds or
affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 5.01, 5.02 and 8.07 and any
Subsidiary Guarantor's obligations in respect thereof shall survive until the
Securities are no longer outstanding pursuant to the last paragraph of Section
2.08. After the Securities are no longer outstanding, the Company's
obligations in Sections 8.07, 9.04 and 9.05 and any Subsidiary Guarantor's
obligations in respect thereof shall survive.
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After such delivery or irrevocable deposit the Trustee upon
request shall acknowledge in writing the discharge of the Company's and any
Subsidiary Guarantor's obligations under the Securities and this Indenture
except for those surviving obligations specified above.
SECTION 9.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of
the Board of Directors of the Company, at any time, with respect to the
Securities, elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Securities upon compliance with the conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of
the option applicable to this paragraph (b), the Company and any Subsidiary
Guarantor shall be deemed to have been released and discharged from its
obligations with respect to the outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "legal defeasance").
For this purpose, such legal defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the
outstanding Securities, which shall thereafter be deemed to be "outstanding"
only for the purposes of paragraph (e) below and the other Sections of and
matters under this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), and
Holders of the Securities and the Guarantees and any amounts deposited under
paragraph (d) below shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness
under Article Four, Article Twelve or otherwise, except for the following
which shall survive until otherwise terminated or discharged hereunder: (i)
the rights of Holders of outstanding Securities to receive solely from the
trust fund described in paragraph (d) below and as more fully set forth in such
paragraph, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 2.06, 2.07 and 5.02,
and, with respect to the Trustee, under Section 8.07 and any Subsidiary
Guarantor's obligations in respect thereof, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (iv) this Section 9.02 and
Section 9.05. Subject to compliance with this Section 9.02, the Company may
exercise its option under this paragraph (b) notwithstanding the prior
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exercise of its option under paragraph (c) below with respect to the
Securities.
(c) Upon the Company's exercise under paragraph (a) of
the option applicable to this paragraph (c), the Company shall be released and
discharged from its obligations under any covenant contained in Article Four
and Article Six and in Sections 5.03, 5.05 through 5.09 and 5.11 through 5.19
with respect to the outstanding Securities on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed to be not "outstanding" for the purpose
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder and
Holders of the Securities and the Guarantees and any amounts deposited under
paragraph (d) below shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness
under Article Four, Article Twelve or otherwise. For this purpose, such
covenant defeasance means that, with respect to the outstanding Securities, the
Company and any Subsidiary Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
7.01(iii), but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application
of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 8.10 who shall agree to comply with the
provisions of this Section 9.02 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (x) money in an amount or (y) direct
non-callable obligations of, or non-callable obligations guaranteed
by, the United States of America for the payment of which guarantee or
obligation the full faith and credit of the United States is pledged
("U.S. Government Obligations")
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maturing as to principal, premium, if any, and interest in such
amounts of money and at such times as are sufficient without
consideration of any reinvestment of such interest, to pay principal
of and interest on the outstanding Securities not later than one day
before the due date of any payment, or (z) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge principal of, premium, if any, and interest on the
outstanding Securities on the Maturity Date or otherwise in accordance
with the terms of this Indenture and of such Securities; provided,
however, that the Trustee (or other qualifying trustee) shall have
received an irrevocable written order from the Company instructing the
Trustee (or other qualifying trustee) to apply such money or the
proceeds of such U.S. Government Obligations to said payments with
respect to the Securities;
(ii) no Default or Event of Default or event which with
notice or lapse of time or both would become a Default or an Event of
Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as Section 7.01(vi)
or (vii) is concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(iii) such legal defeasance or covenant defeasance shall
not cause the Trustee to have a conflicting interest with respect to
any Securities of the Company or any Subsidiary Guarantor;
(iv) such legal defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a Default or
Event of Default under, this Indenture or any other material agreement
or instrument to which the Company or any Subsidiary Guarantor is a
party or by which it is bound (and in that connection, the Trustee
shall have received a certificate from the Credit Agent to that effect
with respect to such Senior Credit Facilities if then in effect);
(v) in the case of an election under paragraph (b) above,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received
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from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the Closing Date, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such legal defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such legal
defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above,
the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(vii) in the case of an election under either paragraph (b)
or (c) above, an Opinion of Counsel to the effect that (x) the trust
funds will not be subject to any rights of any other holders of Senior
Indebtedness or Guarantor Senior Indebtedness, including, without
limitation, those arising under this Indenture, and (y) assuming no
intervening bankruptcy or insolvency of the Company between the date
of deposit and the 91st day following the deposit and that no Holder
is an insider of the Company, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable Bankruptcy Law;
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the legal
defeasance under paragraph (b) above or the covenant defeasance under
paragraph (c) above, as the case may be, have been complied with; and
(ix) the Company shall have delivered to the Trustee an
Officer's Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities
over other creditors of the Company or any Subsidiary Guarantor or
with the intent of defeating, hindering, delaying or defrauding
creditors of the Company, any Subsidiary Guarantor or others.
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(e) All money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any Affiliate of the Company) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to paragraph (d) above or the principal,
premium, if any, and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Section 9.02 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request, in writing, by the Company any money or U.S. Government Obligations
held by it as provided in paragraph (d) above which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
SECTION 9.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 9.01 and 9.02, and shall
apply the deposited money and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of principal of, premium, if any,
and interest on the Securities.
SECTION 9.04. Repayment to the Company or the Subsidiary Guarantors.
Subject to Sections 8.07, 9.01 and 9.02, the Trustee shall
promptly pay to the Company, or if deposited with the Trustee by any Subsidiary
Guarantor, to such Subsidiary Guarantor,
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upon receipt by the Trustee of an Officers' Certificate, any excess money,
determined in accordance with Section 9.02, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company or any Subsidiary
Guarantor, as the case may be, upon receipt by the Trustee or the Paying Agent,
as the case may be, of an Officers' Certificate, any money held by it for the
payment of principal, premium, if any, or interest that remains unclaimed for
two years after payment to the Holders is required; provided, however, that the
Trustee and the Paying Agent before being required to make any payment may, but
need not, at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after
a date specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company or a Subsidiary Guarantor. After payment to the
Company or any Subsidiary Guarantor, as the case may be, Securityholders
entitled to money must look solely to the Company for payment as general
creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
SECTION 9.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Indenture by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then and only then the Company's and each Subsidiary Guarantor's,
if any, obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had been made pursuant to this Indenture
until such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with this Indenture; provided, however,
that if the Company or the Subsidiary Guarantors, as the case may be, have made
any payment of principal of, premium, if any, or interest on any Securities
because of the reinstatement of its obligations, the Company or the Subsidiary
Guarantors, as the case may be, shall be subrogated to the rights of the
holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
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ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when authorized by
a Board Resolution, and the Trustee, together, may amend or supplement this
Indenture or the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not adversely affect
the rights of any Holder;
(2) to comply with Article Six and Section 11.06;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(4) to make any other change that does not adversely
affect the rights of any Securityholder; or
(5) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 10.01.
SECTION 10.02. With Consent of Holders.
Subject to Section 7.07, the Company and each Subsidiary
Guarantor, when authorized by a Board Resolution, and the Trustee, together
with the written consent of the Holder or Holders of at least a majority in
aggregate principal amount of the outstanding Securities, may amend or
supplement, or waive compliance with any provision of, this Indenture, the
Securities or any Guarantee without notice to any other Securityholders.
Without the consent of each Securityholder affected, however, no amendment,
supplement or waiver, including a waiver pursuant to Section 7.04, may:
(1) change the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture, the Securities or the Guarantees;
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(2) reduce the rate or extend the time for payment of
interest on any Security;
(3) reduce the principal amount of any Security;
(4) change the Maturity Date of any Security or the
Change of Control Payment Date, or alter the redemption provisions in
this Indenture or the Securities or the purchase price in connection
with any repurchase of Securities pursuant to Section 5.15 in a manner
adverse to any Holder;
(5) make any changes in the provisions concerning waivers
of Defaults or Events of Default by Holders of the Securities or the
rights of Holders to recover the principal of, interest on, or
redemption payment with respect to, any Security;
(6) make any changes in Section 7.04, 7.07 or this
Section 10.02;
(7) make the principal of, or the interest on any
Security payable with anything or in any manner other than as provided
for in this Indenture, the Securities and the Guarantees as in effect
on the date hereof;
(8) waive a Default or Event of Default resulting from
failure to comply with the provisions of Section 5.15; or
(9) modify the subordination provisions of this Indenture
(including the related definitions) so as to adversely affect the
ranking of any Security or Guarantee.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under
this Article Ten, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment,
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supplement or waiver, or to all Holders, consideration for such Holder's
consent to such amendment, supplement or waiver. No amendment, supplement or
waiver under this Section 10.02 shall have a material adverse effect on the
rights of the holders of Senior Indebtedness or Guarantor Senior Indebtedness
without their prior written consent.
SECTION 10.03. Compliance with TIA.
From the date on which the Indenture is qualified under the
TIA, every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by such Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder
may revoke the consent as to his or her Security or portion of his or her
Security by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 10 days
prior to the first solicitation of such consent. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (9) of Section 10.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security;
provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal of and interest on a
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Security, on or after the respective due dates expressed in such Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
SECTION 10.06. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Ten; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as the
"Guarantee"), subject to Article Twelve, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (i) the principal of and interest on the
Securities will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise and interest on
the overdue principal, if any, and interest on any interest, to the extent
lawful, of the Securities and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in
case of any extension of
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time of payment or renewal of any Securities or of any such other obligations,
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
11.05. Each Subsidiary Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice (except any notice expressly required by this
Indenture) and all demands whatsoever and covenants that this Guarantee will
not be discharged except by complete performance of the obligations contained
in the Securities, this Indenture and in this Guarantee. If any Securityholder
or the Trustee is required by any court or otherwise to return to the Company,
any Subsidiary Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any Subsidiary Guarantor,
any amount paid by the Company or any Subsidiary Guarantor to the Trustee or
such Securityholder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Subsidiary Guarantor
further agrees that, as between each Subsidiary Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Seven
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Seven, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Subsidiary Guarantor for the
purpose of this Guarantee.
SECTION 11.02. Subordination of Guarantee.
The obligations of each Subsidiary Guarantor to the Holders of
Securities and to the Trustee pursuant to the Guarantee of such Subsidiary
Guarantor and this Indenture are expressly subordinate and subject in right of
payment to the prior payment
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in full of all Guarantor Senior Indebtedness of such Subsidiary Guarantor, to
the extent and in the manner provided in Article Twelve.
SECTION 11.03. Severability.
In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.04. Release of a Subsidiary Guarantor.
Upon (i) the release by the lenders under the Senior Credit
Facilities, related documents and future refinancings thereof of all guarantees
of a Subsidiary Guarantor and all Liens on the property and assets of such
Subsidiary Guarantor relating to such Indebtedness, or (ii) the sale or
disposition (whether by merger, stock purchase, asset sale or otherwise) of a
Subsidiary Guarantor (or all or substantially all its assets) to an entity
which is not a Subsidiary of the Company and which sale or disposition is
otherwise in compliance with the terms of this Indenture, such Subsidiary
Guarantor shall be deemed released from all obligations under this Article
Eleven without any further action required on the part of the Trustee or any
Holder; provided, however, that any such termination shall occur only to the
extent that all obligations of such Subsidiary Guarantor under all of its
guarantees of, and under all of its pledges of assets or other security
interests which secure, such Indebtedness of the Company shall also terminate
upon such release, sale or transfer.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate certifying as to the compliance with this Section 11.04.
Any Subsidiary Guarantor not so released remains liable for the full amount of
principal of and interest on the Securities as provided in this Article Eleven.
SECTION 11.05. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each
Holder hereby confirms that it is the intention of all such parties that the
guarantee by such Subsidiary Guarantor pursuant to its Guarantee not constitute
a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby
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irrevocably agree that the obligations of such Subsidiary Guarantor under the
Guarantee shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Subsidiary Guarantor
(including, but not limited to, the Guarantor Senior Indebtedness of such
Subsidiary Guarantor) and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Guarantee or
pursuant to Section 11.07, result in the obligations of such Subsidiary
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.
SECTION 11.06. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into the Company or another Subsidiary Guarantor or shall prevent any
sale or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to the Company or another Subsidiary Guarantor.
Upon any such consolidation, merger, sale or conveyance, the Guarantee given by
such Subsidiary Guarantor shall no longer have any force or effect.
(b) Except as set forth in Article Five and Article Six
hereof, nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into a
corporation or corporations other than the Company or another Subsidiary
Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided,
however, that, subject to Sections 11.04 and 11.06(a), (i) immediately after
such transaction, and giving effect thereto, no Default or Event of Default
shall have occurred as a result of such transaction and be continuing, and (ii)
upon any such consolidation, merger, sale or conveyance, the Guarantee of such
Subsidiary Guarantor set forth in this Article Eleven, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by such Subsidiary Guarantor, shall be expressly
assumed (in the event that the Subsidiary Guarantor is not the surviving
corporation in the merger), by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee, by the corporation formed
by such consolidation, or into which the Subsidiary Guarantor shall have
merged, or by the corporation that shall have acquired such property. In the
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental indenture executed and
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delivered to the Trustee and satisfactory in form to the Trustee of the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Subsidiary Guarantor, such successor corporation shall
succeed to and be substituted for the Subsidiary Guarantor with the same effect
as if it had been named herein as a Subsidiary Guarantor; provided, however,
that solely for purposes of computing amounts described in subclause (c) of the
first paragraph of Section 5.03, any such successor corporation shall only be
deemed to have succeeded to and be substituted for any Subsidiary Guarantor
with respect to periods subsequent to the effective time of such merger,
consolidation or transfer of assets.
SECTION 11.07. Contribution.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Subsidiary Guarantor") under its Guarantee, such Funding Subsidiary
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Guarantor (including the Funding Subsidiary Guarantor) for all
payments, damages and expenses incurred by that Funding Subsidiary Guarantor in
discharging the Company's obligations with respect to the Securities.
"Adjusted Net Assets" of such Subsidiary Guarantor at any date shall mean the
lesser of (x) the amount by which the fair value of the property of such
Subsidiary Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date (other than
liabilities of such Subsidiary Guarantor under Subordinated Indebtedness)), but
excluding liabilities under the Guarantee, of such Subsidiary Guarantor at such
date and (y) the amount by which the present fair salable value of the assets
of such Subsidiary Guarantor at such date exceeds the amount that will be
required to pay the probable liabilities of such Subsidiary Guarantor on its
debts including without limitation, Guarantor Senior Indebtedness (after giving
effect to all other fixed and contingent liabilities incurred or assumed on
such date and after giving effect to any collection from any Subsidiary of such
Subsidiary Guarantor in respect of the obligations of such Subsidiary under the
Guarantee), excluding debt in respect of the Guarantee of such Subsidiary
Guarantor, as they become absolute and matured.
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SECTION 11.08. Waiver of Subrogation.
Each Subsidiary Guarantor hereby irrevocably waives any claim
or other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of such
Subsidiary Guarantor's obligations under its Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Securities against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Subsidiary Guarantor in violation of the
preceding sentence and the Securities shall not have been paid in full, such
amount shall be deemed to have been paid to such Subsidiary Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the
Securities, and shall, subject to the provisions of Section 11.02, Article Four
and Article Twelve, forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Securities, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Subsidiary
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the waiver
set forth in this Section 11.08 is knowingly made in contemplation of such
benefits.
SECTION 11.09. Execution of Guarantee.
To evidence their guarantee to the Securityholders set forth
in this Article Eleven, the Subsidiary Guarantors hereby agree to execute the
Guarantee in substantially the form included in Exhibit A, which shall be
endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Each Subsidiary Guarantor hereby agrees that its Guarantee set forth
in this Article Eleven shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Guarantee. Each
such Guarantee shall be signed on behalf of each Subsidiary Guarantor by two
Officers, or an Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to
such Guarantee prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof
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hereunder, shall constitute due delivery of such Guarantee on behalf of such
Subsidiary Guarantor. Such signatures upon the Guarantee may be by manual or
facsimile signature of such Officers and may be imprinted or otherwise
reproduced on the Guarantee, and in case any such Officer who shall have signed
the Guarantee shall cease to be such Officer before the Security on which such
Guarantee is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
Guarantee had not ceased to be such Officer of the Subsidiary Guarantor.
SECTION 11.10. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive each
such Subsidiary Guarantor from performing its Guarantee as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) each Subsidiary Guarantor hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness.
Anything herein to the contrary notwithstanding, each of the
Guarantors, for itself and its successors, and each Holder, by his acceptance
of Guarantees, agrees that any payment of obligations by a Subsidiary Guarantor
in respect of its Guarantee (collectively, as to any Subsidiary Guarantor, its
"Guarantee Obligations") is subordinated, to the extent and in the manner
provided in this Article Twelve, to the prior payment in full in cash or Cash
Equivalents of all Guarantor Senior Indebtedness of such Subsidiary Guarantor.
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This Article Twelve shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Guarantor Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
SECTION 12.02. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in Default.
(a) Unless Section 12.03 shall be applicable, upon (1)
the occurrence of a Payment Default with respect to any Designated Senior
Indebtedness of a Subsidiary Guarantor (which Designated Senior Indebtedness
constitutes Guarantor Senior Indebtedness of such Subsidiary Guarantor) and (2)
receipt by the Trustee, the Company and such Subsidiary Guarantor from a
Representative of written notice of such occurrence, then no payment (other
than payments previously made pursuant to Article Nine hereof) or distribution
of any assets of such Subsidiary Guarantor of any kind or character shall be
made by such Subsidiary Guarantor on account of any Obligations under the
Securities or on account of the purchase, redemption or other acquisition of
Securities or any of the obligations of such Subsidiary Guarantor under this
Guarantee unless and until such Payment Default shall have been cured or waived
or shall have ceased to exist or such Guarantor Senior Indebtedness shall have
been discharged or paid in full in cash or Cash Equivalents, after which such
Subsidiary Guarantor shall resume making any and all required payments in
respect of its obligations under this Guarantee.
(b) Unless Section 12.03 shall be applicable upon (1) the
occurrence of a Non-payment Default with respect to any Designated Senior
Indebtedness of a Subsidiary Guarantor and (2) the earlier of (i) receipt by
the Trustee, the Company and such Subsidiary Guarantor from a Representative of
written notice of such occurrence stating that such notice is a "Payment
Blockage Notice" pursuant to Sections 4.02(b) and 12.02(b) of this Indenture or
(ii) if such Non-payment Default results from the acceleration of the
Securities, the date of the acceleration of the Securities, no payment (other
than payments previously made pursuant to Article Nine hereof) or distribution
of any assets of such Subsidiary Guarantor of any kind or character shall be
made by such Subsidiary Guarantor on account of principal, premium, if any, or
interest on the Securities or on account of the purchase, redemption or other
acquisition of Securities or on account of any of the other obligations of such
Subsidiary Guarantor under this Guarantee for a period ("Guarantor Payment
Blockage Period")
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commencing on the date of receipt by the Trustee of such notice or the date of
the acceleration referred to in clause (ii) above, as the case may be, unless
and until the earlier to occur of the following events: (w) 179 days shall
have elapsed since receipt of such written notice by the Trustee or the date of
the acceleration of the Securities, as the case may be (provided no Designated
Senior Indebtedness of a Subsidiary Guarantor shall theretofore have been
accelerated), (x) such Non-payment Default shall have been cured or waived or
shall have ceased to exist, (y) such Designated Senior Indebtedness shall have
been discharged or paid in full or (z) such Guarantor Payment Blockage Period
shall have been terminated by written notice to the Trustee from the
Representative initiating such Guarantor Payment Blockage Period, or the
holders of at least a majority in principal amount of such issue of such
Guarantor Senior Indebtedness, after which, in the case of clause (w), (x), (y)
or (z), such Subsidiary Guarantor shall resume making any and all required
payments in respect of its obligations under this Guarantee. Notwithstanding
any other provisions of this Indenture, no Non-payment Default with respect to
any Designated Senior Indebtedness of a Subsidiary Guarantor which existed or
was continuing on the date of the commencement of any Guarantor Payment
Blockage Period shall be, or be made, the basis for the commencement of a
second Guarantor Payment Blockage Period, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
In no event shall a Guarantor Payment Blockage Period extend beyond 179 days
from the date of the receipt of the notice by the Trustee or the date of the
acceleration of the Securities referred to in clause (2) hereof (the "Initial
Guarantor Blockage Period"). Any number of additional Guarantor Payment
Blockage Periods may be commenced during the Initial Guarantor Blockage Period;
provided, however, that no such additional Guarantor Payment Blockage Period
shall extend beyond the Initial Guarantor Blockage Period. After the
expiration of the Initial Guarantor Blockage Period, no Guarantor Payment
Blockage Period may be commenced under this Section 12.02(b) and no Payment
Blockage Period may be commenced under Section 4.02(b) until at least 180
consecutive days have elapsed from the last day of the Initial Guarantor
Blockage Period.
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any payment
prohibited by the foregoing provisions of this Section 12.02, then and in such
event such payment shall be segregated from other funds and held in trust by
the Trustee or such Holder or Paying Agent for the benefit of, and shall
immediately be paid over to, the holders of Senior Indebtedness or to the
Representatives or as a court of competent jurisdiction shall direct.
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SECTION 12.03. Guarantee Obligations Subordinated to Prior
Payment of All Guarantor Senior Indebtedness
on Dissolution, Liquidation or Reorganization
of Such Subsidiary Guarantor.
Upon any payment or distribution of assets of any Subsidiary
Guarantor of any kind or character, whether in cash, property or securities
upon any dissolution, winding up, total or partial liquidation or
reorganization of such Subsidiary Guarantor and whether voluntary or
involuntary (including, without limitation, in bankruptcy, insolvency or
receivership proceedings or upon any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of such Subsidiary Guarantor
and whether voluntary or involuntary, but excluding any liquidation or
dissolution of a Subsidiary Guarantor into the Company or into another
Subsidiary Guarantor):
(a) the holders of all Guarantor Senior Indebtedness of
such Subsidiary Guarantor shall first be entitled to receive payments
in full in cash or Cash Equivalents of all amounts payable under
Guarantor Senior Indebtedness (including, with respect to Designated
Senior Indebtedness, any interest accruing after the commencement of
any such proceeding at the rate specified in the applicable Designated
Senior Indebtedness whether or not interest is an allowed claim
enforceable against the Company in any such proceeding) before the
Holders will be entitled to receive any payment with respect to the
Guarantee of such Subsidiary Guarantor, and until all Obligations with
respect to the Guarantor Senior Indebtedness are paid in full in cash
or Cash Equivalents, any distribution to which the Holders would be
entitled shall be made to the holders of Guarantor Senior Indebtedness
of such Subsidiary Guarantor;
(b) any payment or distribution of assets of such
Subsidiary Guarantor of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee on behalf
of the Holders would be entitled except for the provisions of this
Article Twelve shall be paid by the liquidating trustee or agent or
other Person making such a payment or distribution, directly to the
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor
or their Representatives, ratably according to the respective amounts
of such Guarantor Senior Indebtedness remaining unpaid held or
represented by each, until all such Guarantor Senior Indebtedness
remaining unpaid shall have been paid in full in cash or Cash
Equivalents after giving effect to any
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concurrent payment or distribution to the holders of such Guarantor
Senior Indebtedness;
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of such Subsidiary Guarantor of any
kind or character, whether in cash, property or securities, shall be
received by the Trustee or the Holders or any Paying Agent in respect
of payment of the Guarantee before all Guarantor Senior Indebtedness
of such Subsidiary Guarantor is paid in full in cash or Cash
Equivalents, such payment or distribution (subject to the provisions
of Sections 12.06 and 12.07) shall be received, segregated from other
funds, and held in trust by the Trustee or such Holder or Paying Agent
for the benefit of, and shall immediately be paid over to, the holders
of such Guarantor Senior Indebtedness or their Representatives,
ratably according to the respective amounts of such Guarantor Senior
Indebtedness held or represented by each, until all such Guarantor
Senior Indebtedness remaining unpaid shall have been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent
payment or distribution to the holders of Guarantor Senior
Indebtedness.
Each Subsidiary Guarantor shall give prompt notice to the
Trustee prior to any dissolution, winding up, total or partial liquidation or
total or reorganization (including, without limitation, in bankruptcy,
insolvency, or receivership proceedings or upon any assignment for the benefit
of creditors or any other marshalling of such Subsidiary Guarantor's assets and
liabilities).
SECTION 12.04. Holders of Guarantee Obligations to Be
Subrogated to Rights of Holders of
Guarantor Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Indebtedness, the Holders of Guarantee Obligations of a
Subsidiary Guarantor shall be subrogated to the rights of the holders of
Guarantor Senior Indebtedness of such Subsidiary Guarantor to receive payments
or distributions of assets of such Subsidiary Guarantor applicable to such
Guarantor Senior Indebtedness until all amounts owing on or in respect of the
Guarantee Obligations shall be paid in full in cash or Cash Equivalents, and
for the purpose of such subrogation no payments or distributions to the holders
of such Guarantor Senior Indebtedness by or on behalf of such Subsidiary
Guarantor, or by or on behalf of the Holders by virtue of this Article Twelve,
which otherwise would have been made to the Holders shall,
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as between such Subsidiary Guarantor and the Holders, be deemed to be payment
by such Subsidiary Guarantor to or on account of such Guarantor Senior
Indebtedness, it being understood that the provisions of this Article Twelve
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of such Guarantor Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve
shall have been applied, pursuant to the provisions of this Article Twelve, to
the payment of all amounts payable under such Guarantor Senior Indebtedness,
then the Holders shall be entitled to receive from the holders of such
Guarantor Senior Indebtedness any such payments or distributions received by
such holders of such Guarantor Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable under or in respect of such Guarantor
Senior Indebtedness in full in cash or Cash Equivalents.
SECTION 12.05. Obligations of the Subsidiary Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Subsidiary Guarantors and the Holders, the obligation of the Subsidiary
Guarantors, which is absolute and unconditional, to pay to the Holders all
amounts due and payable under the Guarantees as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Subsidiary
Guarantors other than the holders of the Guarantor Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Twelve,
of the holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of the Subsidiary Guarantors received upon the exercise of any such
remedy. Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Sections 8.01 and 8.02, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in
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such payment or distribution, the holders of Guarantor Senior Indebtedness and
other Indebtedness of any Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve. Nothing in this Section 12.05
shall apply to the claims of, or payments to, the Trustee under or pursuant to
Section 8.07.
SECTION 12.06. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received notice thereof from the Company or any Subsidiary Guarantor or from
one or more holders of Guarantor Senior Indebtedness or from any Representative
therefor and, prior to the receipt of any such notice, the Trustee, subject to
the provisions of Sections 8.01 and 8.02, shall be entitled in all respects
conclusively to assume that no such fact exists.
SECTION 12.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Sections 9.01 and
9.02 shall be for the sole benefit of Securityholders and, to the extent
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article Twelve. Otherwise, any deposit of
assets or securities by or on behalf of a Subsidiary Guarantor with the Trustee
or any Paying Agent (whether or not in trust) for payment of the Guarantee
shall be subject to the provisions of this Article Twelve; provided that if
prior to the second Business Day preceding the date on which by the terms of
this Indenture any such assets may become distributable for any purpose
(including, without limitation, the payment of either principal of or interest
on any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the notice provided for in Section 12.06, then the
Trustee or such Paying Agent shall have full power and authority to receive
such assets and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary received by it on or
after such date. The foregoing shall not apply to the Paying Agent if the
Company or any Subsidiary or Affiliate of the Company is acting as Paying
Agent. Nothing contained in this Section 12.07 shall limit the right of the
holders of Guarantor Senior
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Indebtedness to recover payments as contemplated by this Article Twelve.
SECTION 12.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Guarantor Senior Indebtedness to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of any Subsidiary Guarantor or by any act or failure to act, by any
such holder, or by any non-compliance by any Subsidiary Guarantor with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) By accepting the Securities, the Holders agree that
without limiting the generality of subsection (a) of this Section 12.08, the
holders of Guarantor Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of Guarantor Senior Indebtedness, do any one or more of the following:
(1) change the manner, place, terms or time of payment of, or renew or alter,
Guarantor Senior Indebtedness or any instrument evidencing the same or any
agreement under which Guarantor Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Guarantor Senior Indebtedness; (3) release any Person liable
in any manner for the collection or payment of Guarantor Senior Indebtedness;
and (4) exercise or refrain from exercising any rights against the Company and
any other Person.
SECTION 12.09. Holders Authorize Trustee to Effectuate
Subordination of Guarantee Obligations.
Each Holder of the Guarantee Obligations by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination
provisions contained in this Article Twelve, and appoints the Trustee his
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of any Subsidiary Guarantor (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
any Subsidiary Guarantor) tending
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towards liquidation or reorganization of the business and assets of any
Subsidiary Guarantor, the immediate filing of a claim for the unpaid balance
under its or his Guarantee Obligations in the form required in said proceedings
and cause said claim to be approved. If the Trustee does not file a proper
claim or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then any of the
holders of the Guarantor Senior Indebtedness or their Representatives is hereby
authorized to file an appropriate claim for and on behalf of the Holders of
said Guarantee Obligations.
SECTION 12.10. Right of Trustee to Hold Guarantor
Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth
in this Article Twelve in respect of any Guarantor Senior Indebtedness at any
time held by it to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
SECTION 12.11. No Suspension of Remedies.
The failure to make a payment in respect of the Guarantees by
reason of any provision of this Article Twelve shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section
7.01.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate
the maturity of the Securities pursuant to Article Seven or to pursue any
rights or remedies hereunder or under applicable law, subject to the rights, if
any, under this Article Twelve of the holders, from time to time, of Guarantor
Senior Indebtedness.
SECTION 12.12. No Fiduciary Duty of Trustee to Holders
of Guarantor Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Indebtedness, and shall not be liable to any
such holders (other than for its willful misconduct or gross negligence) if it
shall pay over or deliver to the holders of Guarantee Obligations or the
Company or any other Person, money or assets in compliance with the terms of
this Indenture. Nothing in this Section 12.12 shall affect the obligation of
any Person other than the Trustee to hold such
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payment for the benefit of, and to pay such payment over to, the holders of
Guarantor Senior Indebtedness or their Representative.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of Section 3.18(c) of the TIA,
the imposed duties shall control.
SECTION 13.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
if to the Company or any Subsidiary Guarantor:
2502 North Black Canyon Highway
Phoenix, Arizona 85009
Attention: Chief Financial Officer
if to the Trustee:
[_____________________________________]
Attention: Corporate Trust Division
if to the Credit Agent:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attention: [Matthew Jones]
Each of the Company, the Trustee, the Subsidiary Guarantors
and the Credit Agent by written notice to each other such Person may designate
additional or different addresses for
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notices to such Person. Any notice or communication to the Company, the
Trustee, the Subsidiary Guarantors and the Credit Agent shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and
five (5) calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address
as it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section
312(b) with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Subsidiary Guarantors, the
Trustee, the Registrar and any other Person shall have the protection of TIA
Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
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SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 5.07, shall include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
each such Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, Los Angeles, California or at such place of payment are not
required to be open. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 13.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to submit to
the jurisdiction of
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the courts of the State of New York in any action or proceeding arising out of
or relating to this Indenture.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or a Subsidiary Guarantor shall not have any liability for
any obligations of the Company or a Subsidiary Guarantor under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Securities.
SECTION 13.11. Successors.
All agreements of the Company and each Subsidiary Guarantor in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
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SECTION 13.14. No Violation.
Notwithstanding the provisions of this Indenture, in no event
shall any transaction, agreement, payment or other event to be consummated,
entered into or made in connection with the Acquisition or any financing
thereof (including without limitation the transaction referred to in Section
6.01(c)) be considered a violation of any provision of this Indenture or
constitute a Change of Control hereunder.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
Dated: _______ __,
OUTDOOR SYSTEMS, INC.
By:
------------------------------
Name:
Title:
Attest:
-----------------------
[ ]
--------------------------
as Trustee
By:
------------------------------
Name:
Title:
Attest:
-----------------------
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THE GUARANTORS:
OS BASELINE, INC.
By:
------------------------------
Name:
Title:
Attest:
-----------------------
OUTDOOR SYSTEMS PAINTING, INC.
By:
------------------------------
Name:
Title:
Attest:
-----------------------
OS ADVERTISING OF TEXAS PAINTING,
INC.
By:
------------------------------
Name:
Title:
Attest:
-----------------------
NEW YORK SUBWAYS ADVERTISING CO.,
INC.
By:
------------------------------
Name:
Title:
Attest:
-----------------------
DECADE COMMUNICATIONS GROUP, INC.
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By:
------------------------------
Name:
Title:
Attest:
-----------------------
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
By:
------------------------------
Name:
Title:
Attest:
-----------------------
119
EXHIBIT A
[FORM OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE OR REGISTRAR), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY,
IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR SUCH
TRANSFER IS MADE IN ACCORDANCE WITH CLAUSES (D) OR (E) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
A-1
120
OUTDOOR SYSTEMS, INC.
Senior Subordinated Notes
due 2006
No. $
OUTDOOR SYSTEMS, INC., a Delaware corporation (the "Company",
which term includes any successor corporation), for value received promises to
pay to or registered assigns, the principal sum of Dollars, on
, 2006.
Interest Payment Dates: January 15, April 15, July 15 and
October 15.
Record Dates: January 1, April 1, July 1 and October 1.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-2
121
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated:
Attest: OUTDOOR SYSTEMS, INC.
By:
- ---------------------------- ----------------------------------
Name: Name:
Title: Title:
A-3
122
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within- mentioned Indenture.
[ ]
-------------------------
as Trustee
By
---------------------------
Authorized Signatory
A-4
123
OUTDOOR SYSTEMS, INC.
Senior Subordinated Notes
due 2006
1. Interest.
OUTDOOR SYSTEMS, INC., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the
initial interest rate of [ ]%(1) per annum (the "Initial Interest Rate"). The
Initial Interest Rate will increase on each three-month anniversary of the date
of issuance of this Security by an additional .5% to a maximum interest rate of
20% per annum. The Company will pay interest quarterly on January 15, April
15, July 15 and October 15 of each year (the "Interest Payment Dates"),
commencing on ________ __, ____. Interest on the Securities will accrue from
the most recent date to which interest has been paid on this Security, or if no
interest has been paid on this Security, then from the date of issuance hereof.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months. Interest shall be payable in cash provided that the Company may
pay interest in excess of 15% per annum by issuing additional Securities ("PIK
Securities").
The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. Legal
Tender") or in PIK Securities. However, the Company may pay principal and
interest (other than interest paid in PIK Securities) by wire transfer of
Federal funds, or interest by its check payable in such U.S. Legal Tender. The
Company may deliver
- ----------------------------------
1 The interest rate in effect for Loans under the Senior Subordinated
Credit Agreement immediately prior to the issuance date, which
interest rate shall include the .5% increase on the Conversion Date if
not already included in such interest rate.
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any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. Notwithstanding the foregoing, the Company shall pay or
cause to be paid all amounts payable with respect to non-DTC eligible
Securities by wire transfer of Federal funds to the account of the Holders of
such Securities.
3. Paying Agent and Registrar.
Initially, (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to, or the consent of,
the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated as
of , (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code Section Section
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such
time as the Indenture is qualified under the TIA, and thereafter as in effect
on the date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and Holders of Securities are referred to the Indenture and said Act for a
statement of them. The Securities are general unsecured obligations of the
Company limited in aggregate principal amount to $240,000,000 plus the amount
of PIK Securities outstanding at such time. Payment on each Security is
guaranteed on a senior subordinated basis, jointly and severally, by the
Guarantors pursuant to Article Eleven of the Indenture.
5. Optional Redemption.
The Securities may be redeemed in whole at any time or in part
from time to time, at the option of the Company, at a redemption price equal to
the applicable percentage of the principal amount thereof set forth below,
together with accrued and unpaid interest to the Redemption Date, if redeemed
during the 12 months commencing on [ ](2) in the years set forth
below:
- ----------------------------------
2 The month and day of the Closing Date of the Bridge Loan.
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Year Percentage
---- ----------
1997 . . . . . . . . . . . . . . . . 101%
1998 . . . . . . . . . . . . . . . . 102%
1999 . . . . . . . . . . . . . . . . 103%
2000 . . . . . . . . . . . . . . . . 104%
2001 . . . . . . . . . . . . . . . . 104%
2002 . . . . . . . . . . . . . . . . 103%
2003 . . . . . . . . . . . . . . . . 102%
2004 . . . . . . . . . . . . . . . . 101%
2005 . . . . . . . . . . . . . . . . 100%
The documents evidencing Senior Indebtedness will restrict the
Company's ability to optionally redeem the Securities.
6. Notice of Redemption.
Notice of redemption will be mailed at least 20 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations
larger than $1,000 may be redeemed in part in increments of $1,000; provided
that if no Securities other than PIK Securities in denominations of less than
$1,000 (or if greater than $1,000, not in integral multiples of $1,000) remain
outstanding or have not been called for redemption, such PIK Securities may be
redeemed.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Securities called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date and payment of the Securities called for redemption is not
prohibited under Article Four or Article Twelve of the Indenture, then, unless
the Company defaults in the payment of such Redemption Price, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the repurchase of such Holder's Securities pursuant
to a Change of Control Offer at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of purchase. The
Company shall not be required to repurchase Securities until it has complied
with its covenants to repay in full all Indebtedness of the Company and its
Subsidiaries under the Senior Credit Facilities or offer to repay in full all
such Indebtedness and repay the Indebtedness of each lender who has accepted
its offer to repay such Indebtedness or to obtain the requisite consent under
the Senior Credit
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Facilities to permit the repurchase of the Securities pursuant to a Change of
Control Offer.
8. Offer to Repurchase Securities with Net Cash Proceeds of Certain Asset
Sales.
Under certain circumstances, the Company is required to apply
the Net Cash Proceeds from Asset Sales to the repayment of Pari Passu
Indebtedness or Senior Indebtedness, to make Related Business Investments, or
to purchase in a Net Proceeds Offer (at a price equal to 100% of the aggregate
principal amount thereof, plus accrued interest to the date of purchase) such
aggregate principal amount of Securities which, when added to the accrued
interest thereon, shall be equal to the net proceeds required to be applied
thereto.
9. Offer to Repurchase Securities with Net Cash Proceeds of Certain
Issuances of Debt and Equity Securities.
Upon the repayment of all amounts owing under the Senior
Credit Facilities, the Company will be required to make an offer to purchase
the Securities at a price of 100% of the principal amount thereof plus accrued
interest, if any, to the date of repurchase with the net cash proceeds of a
sale of certain debt or equity securities, in the manner and subject to the
limitations provided in the Indenture.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, and
(except for the PIK Securities) are in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities or portions
thereof selected for redemption.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
12. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agents will pay the money
back to the Company at its request. After
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that, all liability of the Trustee and such Paying Agents with respect to such
money shall cease.
13. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay the principal of
and interest on the Securities to redemption or maturity and complies with the
other provisions of the Indenture relating thereto, the Company and the
Subsidiary Guarantors will be discharged from certain provisions of the
Indenture and the Securities (including the financial covenants, but excluding
the Company's obligation to pay the principal of and interest on the Securities
and each Subsidiary Guarantor's obligation with respect to its Guarantee).
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities
and the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of
a majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, comply with Article Six or
Section 11.06 of the Indenture, or comply with any requirements of the
Commission in connection with the qualification of the Indenture under the
TIA, or make any other change that does not adversely affect the rights of any
Holder of a Security.
15. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other Person and sell, lease, transfer or otherwise
dispose of substantially all of its properties or assets. The limitations are
subject to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such limitations.
16. Subordination.
The Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture)
of the Company. The Guarantees are
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subordinated in right of payment, in the manner and to the extent set forth in
the Indenture, to the prior payment in full of Guarantor Senior Indebtedness
(as defined in the Indenture). To the extent and in the manner provided in the
Indenture, Senior Indebtedness, and in the case of payment by a Subsidiary
Guarantor, Guarantor Senior Indebtedness, must be paid before any payment may
be made to any Holder of this Security. Any Securityholder by accepting this
Security agrees to the subordination and authorizes the Trustee to give it
effect.
17. Successors.
When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
18. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest, including an Accelerated Payment) if it determines that withholding
notice is in their interest.
19. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates as if it
were not the Trustee.
20. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator,
as such, of the Company or a Subsidiary Guarantor shall have any liability for
any obligation of the Company or any Subsidiary Guarantor under the Securities
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Security by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
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21. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
22. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
23. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP
numbers to be printed on the Securities immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be
made to: Outdoor Systems, Inc., 2502 North Black Canyon Highway, Phoenix,
Arizona 85009, Attn: Chief Financial Officer.
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[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor Person under the Indenture) have unconditionally,
jointly and severally, guaranteed on a senior subordinated basis (such
guarantee by each Subsidiary Guarantor being referred to herein as the
"Guarantee") (i) the due and punctual payment of the principal of and interest
on the Securities, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal and interest, if any,
on the Securities, to the extent lawful, and the due and punctual performance
of all other obligations of the Company to the holders of the Securities or the
Trustee all in accordance with the terms set forth in Article Eleven and
Article Twelve of the Indenture and (ii) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
The obligations of each Subsidiary Guarantor to the holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth and are expressly subordinated and subject in right of
payment to the prior payment in full of all Guarantor Senior Indebtedness of
such Subsidiary Guarantor, to the extent and in the manner provided, in Article
Eleven and Article Twelve of the Indenture, and reference is hereby made to
such Indenture for the precise terms of the Guarantee therein made.
No past, present or future stockholder, director, officer,
employee or incorporator, as such, of any of the Subsidiary Guarantors shall
have any liability for any obligation of the Subsidiary Guarantors under the
Guarantee or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Guarantees.
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The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE GUARANTORS:
OS BASELINE, INC.
By:
---------------------------------
Name:
Title:
Attest:
----------------------------
OUTDOOR SYSTEMS PAINTING, INC.
By:
---------------------------------
Name:
Title:
Attest:
----------------------------
OS ADVERTISING OF TEXAS PAINTING,
INC.
By:
---------------------------------
Name:
Title:
Attest:
----------------------------
NEW YORK SUBWAYS ADVERTISING CO.,
INC.
By:
---------------------------------
Name:
Title:
Attest:
----------------------------
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DECADE COMMUNICATIONS GROUP, INC.
By:
----------------------------
Name:
Title:
Attest:
----------------------------
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
By:
----------------------------
Name:
Title:
Attest:
----------------------------
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[FORM OF ASSIGNMENT]
I or we assign this Security to
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
- -------------------------------------
and irrevocably appoint _______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
-------------------- --------------------------------
- -----------------------------------------------------------------
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee:
---------------------------------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 5.15 or Section 5.16 of the Indenture, check the
appropriate box: Section 5.15 [ ] Section 5.16 [ ] Section 5.20 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 5.15 or Section 5.16 of the
Indenture, state the amount:
$
Date: Signature:
-----------------------------------------
---------- (Sign exactly as your name
appears on the front of
this Security)
Signature Guarantee:
---------------------------------------------------------
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