SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) - June 30, 1999
PREMIER PARKS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-13703 13-3995059
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
11501 Northeast Expressway
Oklahoma City, Oklahoma 73131
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code - (405) 475-2500
(Former name or former address, if changed since last report): Not Applicable
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Item 5. Other Events
On June 30, 1999, the Registrant consummated the previously announced
offering and sale of $430,000,000 principal amount of the Registrant's 9 3/4%
Senior Notes due 2007. The Registrant is filing herewith the Indenture dated as
of June 30, 1999 between the Registrant and The Bank of New York, as trustee,
and the First Supplemental Indenture dated as of June 30, 1999 between the
Registrant and The Bank of New York, as trustee, each of which was executed in
connection with the offering and sale of the new notes.
Item 7. Financial Statements and Exhibits
(c) Exhibits
4.1 Indenture dated as of June 30, 1999 between the Registrant and
The Bank of New York, as trustee.
4.2 First Supplemental Indenture dated as of June 30, 1999 between
the Registrant and The Bank of New York, as trustee.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PREMIER PARKS INC.
By: /s/ James M. Coughlin
---------------------------------
Name: James M. Coughlin
Title: Vice President
<PAGE>
Exhibit Index
Exhibit Description
------- -----------
4.1 Indenture dated as of June 30, 1999 between the Registrant and
The Bank of New York, as trustee.
4.2 First Supplemental Indenture dated as of June 30, 1999 between
the Registrant and The Bank of New York, as trustee.
EXECUTION COPY
PREMIER PARKS INC.
and
THE BANK OF NEW YORK
---------------------------
as Trustee
---------------------------
Indenture
Dated as of June 30, 1999
-----------------
Debt Securities
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TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY 1
ARTICLE I
Definitions
SECTION 1.01. Certain Terms Defined 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act 15
SECTION 1.03. Rules of Construction 15
ARTICLE II
Debt Securities
SECTION 2.01. Forms Generally 16
SECTION 2.02. Form of Trustee's Certificate of Authentication 17
SECTION 2.03. Principal Amount; Issuable in Series 17
SECTION 2.04. Execution of Debt Securities 20
SECTION 2.05. Authentication and Delivery of Debt Securities 21
SECTION 2.06. Denomination of Debt Securities 23
SECTION 2.07. Registration of Transfer and Exchange 23
SECTION 2.08. Temporary Debt Securities 25
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities 26
SECTION 2.10. Cancelation of Surrendered Debt Securities 27
SECTION 2.11. Provisions of the Indenture and Debt Securities for
the Sole Benefit of the Parties and the Holders 28
SECTION 2.12. Payment of Interest; Rights Preserved 28
SECTION 2.13. Securities Denominated in Foreign Currencies 28
SECTION 2.14. Wire Transfers 29
SECTION 2.15. Securities Issuable in the Form of a Global Security 29
SECTION 2.16. Medium Term Securities 32
SECTION 2.17. Defaulted Interest 33
SECTION 2.18. Judgments 33
SECTION 2.19. CUSIP Numbers 34
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3
ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article 34
SECTION 3.02. Notice of Redemption; Selection of Debt Securities 35
SECTION 3.03. Payment of Debt Securities Called for Redemption 37
SECTION 3.04. Mandatory and Optional Sinking Funds 38
SECTION 3.05. Redemption of Debt Securities for Sinking Fund 38
ARTICLE IV
Particular Covenants of the Company
SECTION 4.01. Payment of Principal of, and Premium, If Any, and Interest
on, Debt Securities 40
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities 41
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee 42
SECTION 4.04. Duties of Paying Agents, etc 42
SECTION 4.05. Statement by Officers as to Default 43
SECTION 4.06. Further Instruments and Acts 43
SECTION 4.07. Existence 44
SECTION 4.08. Maintenance of Properties 44
SECTION 4.09. Payment of Taxes and Other Claims 44
ARTICLE V
Holders' Lists and Reports by the Company
and the Trustee
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information 45
SECTION 5.02. Communications to Holders 45
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4
SECTION 5.03. Reports by Company 45
SECTION 5.04. Reports by Trustee 46
SECTION 5.05. Record Dates for Action by Holders 47
ARTICLE VI
Remedies of the Trustee and Holders
in Event of Default
SECTION 6.01. Events of Default 47
SECTION 6.02. Collection of Indebtedness by Trustee, etc 51
SECTION 6.03. Application of Moneys Collected by Trustee 53
SECTION 6.04. Limitation on Suits by Holders 54
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default 55
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default 55
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold Such Notice in Certain Circumstances 56
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain
Suits under the Indenture or Against the Trustee 57
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities 57
SECTION 7.02. Certain Rights of Trustee 59
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Debt Securities 60
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities 61
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust 61
SECTION 7.06. Compensation and Reimbursement 61
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed 62
SECTION 7.08. Separate Trustee; Replacement of Trustee 62
SECTION 7.09. Successor Trustee by Merger 64
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5
SECTION 7.10. Eligibility; Disqualification 65
SECTION 7.11. Preferential Collection of Claims Against Company 65
SECTION 7.12. Compliance with Tax Laws 65
ARTICLE VIII
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders 65
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities 66
SECTION 8.03. Who May Be Deemed Owner of Debt Securities 66
SECTION 8.04. Instruments Executed by Holders Bind Future Holders 67
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders 68
SECTION 9.02. Modification of Indenture with Consent of Holders of Debt
Securities 70
SECTION 9.03. Effect of Supplemental Indentures 72
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures 72
SECTION 9.05. Payment for Consent 73
ARTICLE X
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Company 73
SECTION 10.02. Rights and Duties of Successor Corporation 74
ARTICLE XI
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
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6
SECTION 11.01. Applicability of Article 74
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance 74
SECTION 11.03. Conditions of Defeasance 76
SECTION 11.04. Application of Trust Money 77
SECTION 11.05. Repayment to Company 78
SECTION 11.06. Indemnity for U.S. Government Obligations 78
SECTION 11.07. Reinstatement 78
ARTICLE XII
Subordination of Debt Securities
SECTION 12.01. Applicability of Article; Agreement To Subordinate 78
SECTION 12.02. Liquidation, Dissolution, Bankruptcy 79
SECTION 12.03. Default on Senior Indebtedness 79
SECTION 12.04. Acceleration of Payment of Debt Securities 81
SECTION 12.05. When Distribution Must Be Paid Over 81
SECTION 12.06. Subrogation 81
SECTION 12.07. Relative Rights 81
SECTION 12.08. Subordination May Not Be Impaired by Company 82
SECTION 12.09. Rights of Trustee and Paying Agent 82
SECTION 12.10. Distribution or Notice to Representative 82
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right
to Accelerate 82
SECTION 12.12. Trust Moneys Not Subordinated 83
SECTION 12.13. Trustee Entitled to Rely 83
SECTION 12.14. Trustee to Effectuate Subordination 84
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior Indebtedness 84
SECTION 12.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions 84
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01. Successors and Assigns of Company Bound by Indenture 84
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7
SECTION 13.02. Acts of Board, Committee or Officer of Successor
Company Valid 84
SECTION 13.03. Required Notices or Demands 85
SECTION 13.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York 86
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company 86
SECTION 13.06. Payments Due on Legal Holidays 86
SECTION 13.07. Provisions Required by Trust Indenture Act to Control 87
SECTION 13.08. Computation of Interest on Debt Securities 87
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar 87
SECTION 13.10. No Recourse Against Others 87
SECTION 13.11. Severability 87
SECTION 13.12. Effect of Headings 87
SECTION 13.13. Indenture May Be Executed in Counterparts 87
SIGNATURES 88
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8
PREMIER PARKS INC.
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
Indenture
TIA Section Section
----------- -------
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) 7.10
(a)(5) 7.10
(b) 7.10
(c) N.A.**
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 5.01
(b) 5.02
(c) 5.02
313 (a) 5.04
(b)(1) 5.04
(b)(2) 5.04
(c) 12.03
(d) 5.04
314 (a)(1) 5.03(a)
(a)(2) 5.03(b)
(a)(3) 5.03(a)&(b)
& 12.03
(a)(4) 5.04
(b) N.A.
(c)(1) 12.05
(c)(2) 12.05
(c)(3) N.A.
(d) N.A.
(e) 12.05
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9
(f) 4.06
315 (a) 7.01(a)
(b) 6.07 &12.03
(c) 7.01
(d) 7.01
(e) 6.08
316 (a)(last sentence) 1.01
(a)(1)(A) 6.06
(a)(1)(B) 6.06
(a)(2) 9.01(d)
(b) 6.04
(c) 5.05
317 (a)(1) 6.02
(a)(2) 6.02
(b) 4.04
318 (a) 12.07
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
<PAGE>
INDENTURE dated as of June 30, 1999, between PREMIER
PARKS INC., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes
called the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement to the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the
Debt Securities are authenticated, issued and delivered, and in consideration of
the premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Terms Defined. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
Indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise
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2
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force as of the date of original execution of this Indenture.
"Affiliate" of any specified Person means 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
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any business day in such city.
"Bank Indebtedness" means any and all amounts payable under or in
respect of (i) the Credit Facilities, as supplemented, amended, modified,
refinanced or replaced at any time from time to time, and (ii) any lines of
credit and letters of credit of the Company, in each case, including principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof.
"Beneficial Share Assignment Agreement" means the Beneficial Share
Assignment Agreement, dated as of April 1, 1998, between TW-SPV Co. and the
Company.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee
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3
or subcommittee of such Board, except as the context may otherwise require.
"business day" means, when used with respect to any Place of Payment
specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies in
such Place of Payment are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 2.03.
"Capitalized Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP; and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Common Stock" means the common stock ($0.025 par value), of the
Company, which stock is currently listed on the New York Stock Exchange.
"Company" means Premier Parks Inc., a Delaware corporation, and,
subject to the provisions of Article X, shall also include its successors and
assigns.
"Company Order" means a written order of the Company, signed by its
Chairman of the Board, President or any Vice President and by its Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary.
"corporate trust office of the Trustee" or other similar term means
the office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered.
"Credit Facilities" means, with respect to the Company or any of its
Restricted Subsidiaries, one or
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4
more debt facilities (including, without limitation, the Premier Credit Facility
and the Six Flags Credit Facility) or commercial paper facilities with banks or
other institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"Currency" means Dollars or Foreign Currency.
"Debt Security" or "Debt Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be, of any series authenticated and delivered
under this Indenture.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 2.03 or 2.15, with respect to registered Debt
Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the Exchange Act
or other applicable statute or regulations.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
(ii) any other Senior Indebtedness of the Company.
"Disqualified Stock" of a Person means Redeemable Stock of such
Person as to which the maturity, mandatory redemption, conversion or exchange or
redemption at the option of the holder thereof occurs, or may occur, on or prior
to the 91st day after the Stated Maturity of the Debt Securities.
"Dollar" or "$" means such currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained
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5
by converting such Foreign Currency involved in such computation into Dollars at
the spot rate for the purchase of Dollars with the applicable Foreign Currency
as quoted by Citibank, N.A. (unless another comparable financial institution is
designated by the Company) in New York, New York at approximately 11:00 a.m.
(New York time) on the date two business days prior to such determination.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Floating Rate Security" means a Debt Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued or adopted by the
government of any country other than the United States, any other currency
available to banks, freely transferable and freely convertible to Dollars, or a
composite currency the value of which is determined by reference to the values
of the currencies of any group of countries.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time, including those set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession. All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP consistently applied.
"Global Security" means with respect to any series of Debt
Securities issued hereunder, a Debt Security which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal
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6
amount of, all the Outstanding Debt Securities of such series or any portion
thereof, in either case having the same terms, including, without limitation,
the same original issue date, date or dates on which principal is due and
interest rate or method of determining interest.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person or (ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder," "Holder of Debt Securities" or other similar terms mean,
with respect to a Registered Security, the Registered Holder.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
"Incurrence" and "Incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication),
(i) the principal of Indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
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7
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations (other
than obligations described in (i) through (iv) above) entered into in the
ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the third business day following
receipt by such Person of a demand for reimbursement following payment on
the letter of credit;
(vi) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock
(but excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person; provided, however, that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination or (B) the amount of such Indebtedness of such other
Persons; and
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue
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8
discount, and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness. The term "Indebtedness" shall not include (i) any obligations in
respect of the SFEC Zero Coupon Senior Notes so long as (x) the SFEC Escrow
Agreement is in full force and effect and the trustee under the indenture
governing the New SFEC Notes holds thereunder an amount sufficient to pay the
aggregate principal amount at maturity of such SFEC Zero Coupon Senior Notes
pursuant to the terms thereof or (y) the SFEC Zero Coupon Senior Notes shall
have been defeased in accordance with the indenture governing the SFEC Zero
Coupon Senior Notes or (ii) any obligations of the Company or any Restricted
Subsidiary under the Partnership Parks Agreements, the Marine World Agreements
or the Subordinated Indemnity Agreement.
"Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Marine World" means the Marine World Joint Powers Authority or any
successor thereto.
"Marine World Agreements" mean (i) the Parcel Lease, dated November
7, 1997, between Marine World and Park Management Corp. ("PMC"), (ii) the
Reciprocal Easement Agreement, dated November 7, 1997, between Marine World and
PMC, (iii) the Revenue Sharing Agreement, dated November 7, 1997, among Marine
World, PMC and the Redevelopment Agency of the City of Vallejo (the "Agency"),
(iv) the Purchase Option Agreement, dated as of August 29, 1997, among Marine
World, the Agency, the City of Vallejo and PMC and (v) the 1997 Management
Agreement, dated as of February 1, 1997, between Marine World and PMC, as
amended, in each case, as the same may be modified or amended at any time from
time to time after April 1, 1998, provided such modification or amendment does
not adversely affect the interests of the Holders in any material respects.
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9
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or any Vice President and by the Treasurer, chief
accounting officer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel for the Company (which counsel may be an employee of the Company), or
outside counsel for the Company. Each such opinion shall include the statements
provided for in Section 13.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration or acceleration of the maturity thereof pursuant
to Section 6.01.
"Outstanding" when used with respect to any series of Debt
Securities, means, as of the date of determination, all Debt Securities of that
series theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the
Trustee or delivered to the Trustee for cancelation;
(ii) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own paying agent) for the holders of such Debt Securities; provided, that,
if such Debt Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Debt Securities of that series which have been paid pursuant
to Section 2.09 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Debt Securities are held by a bona fide purchaser in
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10
whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall be
the Dollar Equivalent, determined in the manner provided as contemplated by
Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the
Dollar Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such Debt
Security.
"Partnership Parks Agreements" means (i) the Overall Agreement,
dated as of February 15, 1997, among Six Flags Fund, Ltd. (L.P.), Salkin Family
Trust, SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia,
<PAGE>
11
Ltd., SFOG II, Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc., SFOG
Acquisition B, L.L.C., Six Flags Over Georgia, Inc., Six Flags Services of
Georgia, Inc., Six Flags Theme Parks Inc. and Six Flags Entertainment
Corporation and the Related Agreements (as defined therein) and (ii) the Overall
Agreement, dated as of November 24, 1997, among Six Flags Over Texas Fund, Ltd.,
Flags' Directors, L.L.C., FD-II, L.L.C., Texas Flags, Ltd., SFOT Employee, Inc.,
SFOT Acquisition I, Inc., SFOT Acquisition II, Inc., Six Flags Over Texas, Inc.,
Six Flags Theme Parks Inc. and Six Flags Entertainment Corporation and the
Related Agreements (as defined therein), in each case, as the same may be
modified or amended at any time from time to time, provided such modification or
amendment does not adversely affect the interests of the Holders in any material
respect.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt
Securities of any series, the place or places where the principal of, and
premium, if any, and interest on, the Debt Securities of that series are payable
as specified pursuant to Section 2.03.
"Preferred Stock" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Premier Credit Facility" means that certain $275.0 million senior
secured credit facility dated as of March 13, 1998 among Premier Operations and
certain of its subsidiaries, The Bank of New York and the lenders named therein,
as amended from time to time.
"Premier Operations" means Premier Parks Operations Inc., a wholly
owned subsidiary of the Company.
"Principal Property" means any single gathering or distribution
system plant, facility or warehouse, owned or leased by the Company or any
Subsidiary, which
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12
is located within the United States and at which in excess of 5% of the
Company's consolidated annual revenue is generated.
"Redeemable Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Representative" means the trustee, agent or representative (if any)
for an issue of Indebtedness.
"responsible officer" when used with respect to the Trustee, means
any officer within the corporate trust department of the Trustee, including any
Vice President, any Assistant Vice President, any Assistant Treasurer, any trust
officer, any assistant trust officer or any other officer of the Trustee
performing functions similar to those performed by the persons who at the time
shall be such officers, and any other officer of the Trustee to whom corporate
trust matters are referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company which
shall at the time, directly or indirectly, through one or more Subsidiaries or
in combination with one or more Subsidiaries or the Company, owns or leases a
Principal Property.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Securities Act" means the Securities Act of 1933.
<PAGE>
13
"Senior Indebtedness" means, as to any series of Debt Securities
subordinated pursuant to the provisions of Article XII, the Indebtedness of the
Company identified as Senior Indebtedness in the resolution of the Board of
Directors and accompanying Officers' Certificate or supplemental Indenture
setting forth the terms, including as to subordination, of such series.
"SFEC" means Six Flags Entertainment Corporation, a wholly owned
subsidiary of the Company.
"SFEC Escrow Agreement" means the Escrow and Disbursement Agreement
dated as of the date of the indenture governing the New SFEC Notes, by and
between SFEC and The Bank of New York, as trustee, as amended from time to time
in accordance with the indenture governing the New SFEC Notes.
"SFEC Zero Coupon Senior Notes" means SFEC's Zero Coupon Senior
Notes due 1999.
"SFTP" means Six Flags Theme Parks Inc., a wholly owned subsidiary
of SFEC.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Six Flags Acquisition" means the acquisition by the Company by
merger of all of the capital stock of SFEC from its current stockholders
pursuant to the Six Flags Agreement.
"Six Flags Agreement" means that certain Agreement and Plan of
Merger dated as of February 9, 1998, by and among the Company, Premier Parks
Holding Corporation, a Delaware corporation, Premier Parks Merger Corporation, a
Delaware corporation, a certain group of sellers listed therein and SFEC.
"Six Flags Credit Facility" means that $472.0 million senior secured
credit facility dated as of April 1, 1998 among SFTP, S.F. Holdings, Inc., SFEC
and certain subsidiaries of SFTP, The Bank of New York and the lenders named
therein, as amended from time to time.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any
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14
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subsidiary" of any Person means (i) any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock 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 (a) such
Person, (b) such Person and one or more Subsidiaries of such Person or (c) one
or more Subsidiaries of such Person; provided that, notwithstanding the
foregoing, each of SFOG A Holdings, SFOG B Holdings, SFOT I Holdings and SFOT II
Holdings shall be deemed to be a Subsidiary of the Company for all purposes
under this Indenture so long as the Subordinated Indemnity Agreement and the
Beneficial Share Assignment Agreement shall each be in full force and effect and
no default or event of default shall have occurred thereunder, and (ii) any
partnership or limited liability company (a) the sole general partner or the
managing general partner (or equivalent) of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are such Person or one
or more Subsidiaries of such Person (or any combination hereof).
"Subordinated Indemnity Agreement" means the Subordinated Indemnity
Agreement, dated as of the date of the consummation of the Six Flags
Acquisition, among the Company, SFEC and its subsidiaries, Time Warner Inc.,
Time Warner Entertainment Company, L.P. and TW-SPV Co., as the same may be
modified or amended at any time from time to time, provided such modification or
amendment does not adversely affect the interests of the Holders in any material
fashion.
"Trade Payables" means, with respect to any Person, any accounts
payable or any Indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
of such Person in connection with the acquisition of goods or services.
"Trustee" initially means The Bank of New York and any other Person
or Persons appointed as such from time to time pursuant to Section 7.08, and,
subject to the provisions of Article VII, includes its or their
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15
successors and assigns. If at any time there is more than one such Person,
"Trustee" as used with respect to the Debt Securities of any series shall mean
the Trustee with respect to the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939 as in force at the date of this
indenture as originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof.
"Yield to Maturity" means the yield to maturity calculated at the
time of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
<PAGE>
16
"obligor" on the indenture securities means the Company and any
other obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
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) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) if the applicable series of Debt Securities are subordinated
pursuant to Article XII, unsecured indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater
of (i) the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
ARTICLE II
Debt Securities
SECTION 2.01. Forms Generally. The Debt Securities of each series
shall be in substantially the form established without the approval of any
Holder by or
<PAGE>
17
pursuant to a resolution of the Board of Directors or in one or more Indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Company may deem
appropriate (and, if not contained in a Supplemental Indenture entered into in
accordance with Article IX, as are not prohibited by the provisions of this
Indenture) or as may be required or appropriate to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange on
which such series of Debt Securities may be listed, or to conform to general
usage, or as may, consistently herewith, be determined by the officers executing
such Debt Securities as evidenced by their execution of the Debt Securities.
The definitive Debt Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________________,
As Trustee
By_________________________________
Authorized Signatory
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate
principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established, without the approval
<PAGE>
18
of any Holders, in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more Indentures
supplemental hereto, prior to the issuance of Debt Securities of any series any
or all of the following:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Debt Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method
of determining such rate or rates, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest
shall be payable, or the method by which such date will be determined, in
the case of Registered Securities, the record dates for the determination
of Holders thereof to whom such interest is payable; and the basis upon
which interest will be calculated if other than that of a 360-day year of
twelve thirty-day months;
(5) the Place or Places of Payment, if any, in addition to or
instead of the corporate trust office of the Trustee where the principal
of, and interest on, Debt Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company or
otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous
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19
provisions or at the option of a Holder thereof, and the price or prices
to which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(8) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other Debt Securities or
warrants for Common Stock, Preferred Stock or Indebtedness or other
securities of any kind of the Company or any other obligor or issuer and
the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the
conversion or exchange period and any other provision in addition to or in
lieu of those described herein;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on
Debt Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be
determined;
(11) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be Outstanding
as of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined); and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of Dollar Equivalent;
(12) any changes or additions to Article XI, including the addition
of additional covenants that may be subject to the covenant defeasance
option pursuant to Section 11.02(b)(ii);
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20
(13) if other than such coin or Currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of and premium, if any, and
interest on, Debt Securities of the series shall be payable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this Indenture
as currently in effect;
(16) any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of and interest on, such
Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in whole
or in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in
definitive registered form; and the Depositary for such Global Security or
Securities and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend
referred to in Section 2.15;
(18) any trustees, authenticating or paying agents, transfer agents
or registrars;
(19) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X;
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21
(20) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series
and any corresponding changes to the provisions of this Indenture as
currently in effect;
(21) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII;
(22) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(23) any other terms of the Debt Securities of the series (which
terms shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series appertaining thereto shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors and as set
forth in such Officers' Certificate or in any such Indenture supplemental
hereto.
SECTION 2.04. Execution of Debt Securities. The Debt Securities
shall be signed on behalf of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President and by its Secretary, an Assistant
Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the Debt
Securities may be the manual or facsimile signatures of the present or any
future such authorized officers and may be imprinted or otherwise reproduced on
the Debt Securities. The seal of the Company, if any, may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, signed manually
by the Trustee, shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee upon any Debt
Security executed by the Company shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall
<PAGE>
22
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Debt Securities nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Debt Securities had not ceased
to be such officer of the Company; and any Debt Security may be signed on behalf
of the Company by such Persons as, at the actual date of the execution of such
Debt Security, shall be the proper officers of the Company, although at the date
of such Debt Security or of the execution of this Indenture any such Person was
not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Debt Securities of any series executed by the Company to
the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debt Securities to or upon a Company Order. In authenticating such
Debt Securities and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01.) shall be fully protected in relying
upon:
(1) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance of any series of Debt
Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate; and
(4) an opinion of Counsel prepared in accordance with Section 13.05
which shall also state:
(a) that the form of such Debt Securities has been established
by or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.01 in conformity
with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental Indenture as permitted by Section 2.03 in
conformity with the provisions of this Indenture;
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23
(c) that such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(d) that the Company has the corporate power to issue such
Debt Securities and has duly taken all necessary corporate action
with respect to such issuance;
(e) that the issuance of such Debt Securities will not
contravene the charter or by-laws of the Company or result in any
material violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to
such counsel by which the Company is bound;
(f) that authentication and delivery of such Debt Securities
and the execution and delivery of any supplemental Indenture will
not violate the terms of this Indenture; and
(g) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a
court in the United States would render a money judgment in a currency other
than that of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to
existing Holders.
<PAGE>
24
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Debt Securities of any series. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Debt Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, paying
agent or agent for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any
series, each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise
provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as Registered Securities in such
denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange. (a) The Company
shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of authorized denominations for a like aggregate principal amount.
Unless and until otherwise determined by the Company by resolution
of the Board of Directors, the register of the Company for the purpose of
registration, exchange or registration of transfer of the Registered Securities
shall be kept at the corporate trust office of
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25
the Trustee and, for this purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global Security)
may be exchanged for a like aggregate principal amount of Registered Securities
of the same series of other authorized denominations. Subject to Section 2.15,
Registered Securities to be exchanged shall be surrendered at the office or
agency to be maintained by the Company as provided in Section 4.02, and the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Registered Security or Registered Securities which the Holder
making the exchange shall be entitled to receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Debt Securities for a period of 15 days next
preceding any mailing of notice of redemption of Debt Securities of such series
or (b) to register the transfer of or exchange any Debt Securities selected,
called or being called for redemption.
Prior to the due presentation for registration of transfer of any
Debt Security, the Company, the Trustee, any paying agent or any Registrar may
deem and
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26
treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none of
the Company, the Trustee, any paying agent or Registrar shall be affected by
notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any
paying agent or any Registrar will have any responsibility or liability for any
aspect of the records relating to, or payments made on account of, beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities,
all as may be determined by the Company with the concurrence of the Trustee.
Temporary Debt Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive Debt
Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company at a Place of
Payment for such series, without charge to the Holder thereof, except as
provided in Section 2.07 in connection with a transfer, and upon surrender for
cancelation of any one or more temporary Debt Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive
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27
Debt Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by
Section 2.03(17) with respect to the payment of interest on Global Securities in
temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.
If (i) any mutilated Debt Security is surrendered to the Trustee at its
corporate trust office (in the case of Registered Securities) or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them and any paying agent harmless, and neither the Company nor the
Trustee receives notice that such Debt Security has been acquired by a bona fide
purchaser, then the Company shall execute and, upon a Company Order, the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of the
same series of like tenor, form, terms and principal amount, bearing a number
not contemporaneously Outstanding. Upon the issuance of any substituted Debt
Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Debt Security which has matured
or is about to mature or which has been called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish the Company and the Trustee with such
security or indemnity as either may require to save it harmless from all risk,
however remote, and, in case
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of destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10. Cancelation of Surrendered Debt Securities. All Debt
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancelation by it, or if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities held by the Trustee shall be disposed of
by the Trustee in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirements of the Exchange Act) and certification of their
disposition shall be delivered to the Company. On request of the Company, the
Trustee shall deliver to the Company canceled Debt Securities held by the
Trustee. If the Company shall acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until the same are delivered or
surrendered to the Trustee for cancelation. The Company may not issue new Debt
Securities to replace Debt Securities it has redeemed, paid or delivered to the
Trustee for cancelation.
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29
SECTION 2.11. Provisions of the Indenture and Debt Securities for
the Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in
the Debt Securities, expressed or implied, shall give or be construed to give to
any Person, other than the parties hereto, the Holders or any Registrar or
paying agent, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto, the Holders and any Registrar and paying agents.
SECTION 2.12. Payment of Interest; Rights Preserved. (a) Interest on
any Registered Security that is payable and is punctually paid or duly provided
for on any interest payment date shall be paid to the Person in whose name such
Registered Security is registered at the close of business on the regular record
date for such interest notwithstanding the cancelation of such Registered
Security upon any transfer or exchange subsequent to the regular record date.
Payment of interest on Registered Securities shall be made at the corporate
trust office of the Trustee (except as otherwise specified pursuant to Section
2.03), or at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Debt Security
Register or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies. (a)
Except as otherwise specified pursuant to Section 2.03 for Registered Securities
of any series, payment of the principal of, and premium, if any, and interest
on, Registered Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
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30
more Foreign Currencies for any purpose under this Indenture, the principal
amount of such Debt Securities at any time Outstanding shall be deemed to be the
Dollar Equivalent of such principal amount as of the date of any such
calculation.
In the event any Foreign Currency or currencies or units of two or
more Currencies in which any payment with respect to any series of Debt
Securities may be made ceases to be a freely convertible Currency on United
States Currency markets, for any date thereafter on which payment of principal
of, or premium, if any, or interest on, the Debt Securities of a series is due,
the Company shall select the Currency of payment for use on such date, all as
provided in the Debt Securities of such series. In such event, the Company
shall, as provided in the Debt Securities of such series, notify the Trustee of
the Currency which it has selected to constitute the funds necessary to meet the
Company's obligations or such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer of immediately available funds to an account designated by the
Trustee on or before the date such moneys are to be paid to the Holders of the
Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03 that the
Debt Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 2.05, authenticate
and deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officers' Certificate, (ii) shall be
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registered in the name of the Depositary for such Global Security or securities
or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Debt Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary", or such other
legend as may then be required by the Depositary for such Global Security or
Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal
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amount equal to the principal amount of the Global Security in exchange for such
Global Security or securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global security or securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
deliver individual Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such series or portion thereof in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and 2.03
with respect to Debt Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Debt Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Persons beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its agent. Except as
provided
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in the preceding paragraph, Registered Securities issued in exchange for a
Global Security pursuant to this Section 2.15 shall be registered in such names
and in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall
deliver such Registered Securities to the Persons in whose names such Registered
Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt
Securities registered in the name of the Depositary or its nominee will be
payable to the Depositary or such nominee in its capacity as the registered
owner of such Global Security. The Company and the Trustee may treat the Person
in whose name the Debt Securities, including the Global Security, are registered
as the owner thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. None of the Company, the Trustee, any Registrar,
the paying agent or any agent of the Company or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary's direct or
indirect participants, or for maintaining, supervising or reviewing any records
of the Depositary, its nominee or any of its direct or indirect participants
relating to the beneficial ownership interests of the Global Security, (b) the
payments to the beneficial owners of the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such agent will be liable
for any delay by the Depositary, its nominee, or any of its direct or indirect
participants in identifying the beneficial owners of the Debt Securities, and
the Company and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Debt Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers'
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Certificate, resolutions of the Board of Directors, supplemental Indenture,
Opinion of Counsel or written order or any other document otherwise required
pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time of
authentication of each Debt Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent request by the Company to the Trustee to
authenticate Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of Persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such Person) and
that such Persons are authorized to determine, consistent with the Officers'
Certificate, supplemental Indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
SECTION 2.17. Defaulted Interest. If the Company defaults in a
payment of interest on the Debt Securities, it shall pay the defaulted interest
in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Debt Securities pursuant
to Section 4.01 hereof. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Debt Security and the
date of the proposed payment. The Company shall fix or cause to be fixed each
such special record date and payment date;
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35
provided that, no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company delivered to the Trustee at least five Business Days prior to the date
notice is to be mailed, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.18. Judgments. The Company may provide pursuant to Section
2.03 for Debt Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
SECTION 2.19. CUSIP Numbers. The Company in issuing the Debt
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such
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36
numbers either as printed on the Debt Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly
notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article. The provisions of this
Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Debt Securities of any series in accordance with
their terms, a resolution of the Board of Directors of the Company or a
supplemental Indenture, the Company shall fix a date for redemption and shall
give notice of such redemption at least 30 and not more than 60 days prior to
the date fixed for redemption to the Holders of Debt Securities of such series
so to be redeemed as a whole or in part, in the manner provided in Section
13.03. The notice if given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice or any defect in the notice to
the Holder of any Debt Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number, if
any, the date fixed for redemption, the redemption price at which Debt
Securities of such series are to be redeemed, the Place or Places of Payment
that payment will be made upon presentation and surrender of such Debt
Securities, that any interest accrued to the date fixed for redemption will be
paid as specified in said notice, that the redemption is for a sinking fund
payment (if applicable), that, if the Company defaults on making such redemption
payment or if the Debt Securities of that series are subordinated pursuant to
the terms of
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Article XII the paying agent is prohibited from making such payment pursuant to
the terms of this Indenture, that on and after said date any interest thereon or
on the portions thereof to be redeemed will cease to accrue, that in the case of
Original Issue Discount Securities original issue discount accrued after the
date fixed for redemption will cease to accrue, the terms of the Debt Securities
of that series pursuant to which the Debt Securities of that series are being
redeemed and that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Debt
Securities of that series. If less than all the Debt Securities of a series are
to be redeemed the notice of redemption shall specify the CUSIP numbers of the
Debt Securities of that series to be redeemed. In case any Debt Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Debt Security, a
new Debt Security or Debt Securities of that series in principal amount equal to
the unredeemed portion thereof.
At least 60 days before the redemption date unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein. If fewer than all the Debt Securities of a
series are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
less than 15 days after the date of notice to the Trustee.
On or prior to the redemption date for any Registered Securities,
the Company shall deposit with the Trustee or with a paying agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price of such Registered Securities or any portions thereof that are to be
redeemed on that date.
If less than all the Debt Securities of like tenor and terms of a
series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions) the
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Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debt Securities of that series or portions thereof (in
multiples of $1,000) to be redeemed. In any case where more than one Registered
Security of such series is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Registered Security of such series. The Trustee shall
promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If
notice of redemption has been given as provided in Section 3.02, the Debt
Securities or portions of Debt Securities of the series with respect to which
such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption
price, together with any interest accrued to the date fixed for redemption, and
on and after said date (unless the Company shall default in the payment of such
Debt Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue and any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office or such other office or agency of the
Company as is
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specified pursuant to Section 2.03, if the Company, the Registrar or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Registrar and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing, and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Debt Security without service charge, a new Debt Security or Debt Securities of
the same series, of like tenor and form, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Debt Security so surrendered;
except that if a Global Security is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security providing appropriate
space for such notation, at the option of the Holder thereof, the Trustee, in
lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make
a notation on such Debt Security of the payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Debt Securities
of any series, resolution of the Board of Directors or a supplemental Indenture
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased or otherwise acquired by the Company or (b) receive credit
for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Company pursuant to the terms of such
Debt Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such
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40
purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, any resolution or supplemental Indenture,
the portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Debt Securities of that series pursuant
to this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company to deliver such
certificate (or to deliver the Debt Securities specified in this paragraph)
shall not constitute a Default, but such failure shall require that the sinking
fund payment due on the next succeeding sinking fund payment date for that
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
this Section 3.05 and without the right to make any optional sinking fund
payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund
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41
payment date, on the sinking fund payment date following the date of such
payment) to the redemption of such Debt Securities at the redemption price
specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date
fixed for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Debt Securities shall be added to the next cash
sinking fund payment received by the Trustee for such series and, together with
such payment, shall be applied in accordance with the provisions of this Section
3.05. Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities shall be applied by the Trustee,
together with other moneys, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Debt Securities of that series
at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in the last paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.05.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with
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42
respect to such Debt Securities, except that if the notice of redemption of any
such Debt Securities shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee shall redeem such Debt Securities if cash
sufficient for that purpose shall be deposited with the Trustee for that purpose
in accordance with the terms of this Article III. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur and any moneys thereafter paid into such sinking
fund shall, during the continuance of such Default or Event of Default, be held
as security for the payment of such Debt Securities; provided, however, that in
case such Event of Default or Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on the next sinking
fund payment date for such Debt Securities on which such moneys may be applied
pursuant to the provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Company
SECTION 4.01. Payment of Principal of, and Premium, If Any, and
Interest on, Debt Securities. The Company, for the benefit of each series of
Debt Securities, will duly and punctually pay or cause to be paid the principal
of, and premium, if any, and interest on, each of the Debt Securities at the
place, at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Company's option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
Security Register maintained pursuant to Section 2.07(a).
Principal, premium and interest of Debt Securities of any series
shall be considered paid on the date due if on such date the Trustee or any
paying agent holds in accordance with this Indenture money sufficient to pay in
the Currency in which the Debt Securities of such series are denominated (except
as provided pursuant to Section 2.03) all principal, premium and interest then
due and, in the case of Debt Securities subordinated pursuant to the terms of
Article XII, the Trustee or such paying agent, as the case may be, is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of the Indenture.
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The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
each Place of Payment for any series of Debt Securities, an office or agency
where Debt Securities of such series may be presented or surrendered for
payment, where Debt Securities of such series may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debt Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the corporate trust office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
Location of any such different or additional office or agency.
SECTION 4.03. Appointment To Fill a Vacancy in the Office of
Trustee. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.08, a
Trustee, so that there shall at all times be a Trustee hereunder with respect to
each series of Debt Securities.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall
cause each paying agent, if any,
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44
other than the Trustee, to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section 4.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in
trust for the benefit of the Holders of the Debt Securities of such
series;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of and premium, if any, or interest on,
the Debt Securities of such series when the same shall be due and payable;
and
(iii) that it will at any time during the continuance of an Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest on,
the Debt Securities if any, of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Company will promptly notify the Trustee of any failure by the Company to
take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such
Debt Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such paying agent.
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45
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities, it will, prior to each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such
series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 11.05.
SECTION 4.05. Statement by Officers as to Default. The Company will
deliver to the Trustee, on or before a date not more than 120 days after the end
of each fiscal year of the Company (currently on a calendar year basis) ending
after the date hereof, an Officers' Certificate stating, as to each officer
signing such certificate, that (i) in the course of his performance of his
duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Further Instruments and Acts. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
SECTION 4.07. Existence. Subject to Article X, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); provided, however, that
the Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not disadvantageous in any material respect
to the Holders.
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46
SECTION 4.08. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
in all material respects and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on by the
Company and its subsidiaries may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the Company
or a Subsidiary from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, not
materially detrimental to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and not disadvantageous in any material respect
to the Holders.
SECTION 4.09. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Company or any Subsidiary, provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders of the
Debt Securities.
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47
ARTICLE V
Holders' Lists and Reports
by the Company And the Trustee
SECTION 5.01. Company To Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders
as of such record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01 or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any List furnished to it as provided in this
Section 5.01 upon receipt of a new List so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (a) The Company covenants and
agrees, and any obligor hereunder shall covenant and agree, to file with the
Trustee, within 15 days after the Company or such obligor, as the
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48
case may be, is required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as said
Commission may from time to time by rules and regulations prescribe) which the
Company or such obligor, as the case may be, may be required to file with said
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company or such obligor, as the case may be, is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and said Commission (to the extent the Commission accepts
any such filing), in accordance with rules and regulations prescribed from time
to time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor hereunder
shall covenant and agree, to file with the Trustee and the Securities and
Exchange Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information, documents,
and reports with respect to compliance by the Company or such obligor, as the
case may be, with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 5.04. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the time and in the
manner provided pursuant thereto.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
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49
(1) to all Registered Holders, as the names and addresses of such
Holders appear in the Debt Security Register;
(2) except in the cases of reports under Section 313(b)(2) of the
Trust Indenture Act, to each holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company
shall solicit from the Holders of Debt Securities of any series any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), the Company may,
at its option, by resolution of the Board of Directors, fix in advance a record
date for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed, such
action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of business on such record
date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action,
and for that purpose the Debt Securities of such series Outstanding shall be
computed as of such record date.
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ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
SECTION 6.01. Events of Default. If any one or more of the following
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) Default in the payment of any installment of interest upon any
Debt Securities of that series as and when the same shall become due and
payable, whether or not such payment shall be prohibited by Article XII,
if applicable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any,
on any Debt Securities of that series as and when the same shall become
due and payable, whether at maturity, upon redemption, by declaration,
upon required repurchase or otherwise, whether or not such payment shall
be prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect
to any Debt Securities of that series as and when the same shall become
due and payable; or
(d) failure on the part of the Company to comply for 30 days, after
notice to the Company by the Trustee or the Holders of at least 25%
aggregate principal amount at maturity of the Debt Securities then
outstanding voting as a single class, with any provision of Article IV or
Article X hereof; or
(e) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the
Debt Securities of that series, in any resolution of the Board of
Directors authorizing the issuance of that series of Debt Securities, in
this Indenture with respect to such series or in any supplemental
Indenture with respect to such series (other than a covenant a default in
the performance of which is elsewhere in this Section specifically dealt
with), continuing for a period of 60 days after the date on which written
notice specifying such failure and requiring the Company to remedy the
same shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the
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Trustee by the Holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time Outstanding; or
(f) Indebtedness of the Company or any Restricted Subsidiary of the
Company is not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of a default,
the total amount of such Indebtedness unpaid or accelerated exceeds
$10,000,000 or its Dollar Equivalent at the time and such default remains
uncured or such acceleration is not rescinded for 10 days after the date
on which written notice specifying such failure and requiring the Company
to remedy the same shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time Outstanding; or
(g) the Company or any of its Restricted Subsidiaries that
constitutes a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) consent
to the institution of, or fail to controvert within the time and in the
manner prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or
any such Restricted Subsidiary or for a substantial part of its property,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) admit in writing its inability or fail
generally to pay its debts as they become due, (vii) take corporate action
for the purpose of effecting any of the foregoing, or (viii) take any
comparable action under any foreign laws relating to insolvency; or
(h) the entry of an order or decree by a court having competent
jurisdiction in the premises for (i) relief in respect of the Company or
any of its Restricted Subsidiaries that constitutes a Significant
Subsidiary or any group of Restricted
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52
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary or a substantial part of any of their property under Title 11
or the United States Code or any other Federal or State bankruptcy,
insolvency or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator or similar official for the Company or any such
Restricted Subsidiary that constitutes a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary or for a substantial part of any of their
property (except any decree or order appointing such official of any
Restricted Subsidiary pursuant to a plan under which the assets and
operations of such Restricted Subsidiary are transferred to or combined
with another Subsidiary or Subsidiaries of the Company or to the Company)
or (iii) the winding-up or liquidation of the Company or any such
Restricted Subsidiary that constitutes a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary (except any decree or order approving or ordering
the winding up or liquidation of the affairs of a Restricted Subsidiary
pursuant to a plan under which the assets and operations of such
Restricted Subsidiary are transferred to or combined with another
Subsidiary or Subsidiaries of the Company or to the Company); and such
order or decree shall continue unstayed and in effect for 60 consecutive
days; or any similar relief is granted under any foreign laws and the
order or decree stays in effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms of the Debt
Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time outstanding occurs and is continuing,
unless the principal of and interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Holders), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that series)
and interest on all the Debt Securities of that series to be due and
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53
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities
of a particular series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. Upon any such rescission, the parties hereto shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the parties hereto shall continue as though no
proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), (d), (e), (f), (g), (h) or (i), its status
and what action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an
Event of Default occurs and is continuing, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
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54
institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid or enforce the performance of any provision of the
Debt Securities of the affected series or this Indenture, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the Debt
Securities of such series (and collect in the manner provided by law out of the
property of the Company or any other obligor upon the Debt Securities of such
series wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Debt Securities
of any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property,
the Trustee, irrespective of whether the principal of Debt Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of such
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities Incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities of such series, its
creditors or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of such Holders and of the Trustee
on their behalf, and any receiver, assignee or trustee in
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55
bankruptcy or reorganization is hereby authorized by each of such Holders to
make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to such Holders, to pay to the Trustee such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other reasonable expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture,
or under any of the Debt Securities, of any series, may be enforced by the
Trustee without the possession of any such Debt Securities or the production
thereof in any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
or other property collected by the Trustee pursuant to Section 6.02 with respect
to Debt Securities of any series shall be applied, after giving effect to the
provisions of Article XII, if applicable, in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
First: To the payment of all money due the Trustee pursuant to
Section 7.06;
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56
Second: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall not have become
due, to the payment of interest on the Debt Securities of such series in
the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) borne by
the Debt Securities of such series, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
Third: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate or Yield
to Maturity (in the case of Original Issue Discount Debt Securities) borne
by the Debt Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Debt Security of such series over any
Debt Security of such series, ratably to the aggregate of such principal
and premium, if any, and interest; and
Fourth: The remainder, if any, shall be paid to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.03.
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SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less
than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such
action or proceedings in respect of such Event of Default in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
Incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
6.04, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security to receive payment of the principal of,
and premium, if any, and (subject to Section 2.12) interest on, such Debt
Security on or after the respective due dates expressed in such Debt Security,
and to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or effected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default.
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All powers and remedies given by this Article VI to the Trustee or to the
Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder to exercise
any right or power accruing upon any Default occurring and continuing as
aforesaid, shall impair any such right or power, or shall be construed to be a
waiver of any such Default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by this Article VI or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Debt Securities To Direct Trustee and To Waive Default. The Holders of a
majority in aggregate principal amount of the Debt Securities of any series at
the time Outstanding shall have the right to 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 the Trustee, with respect to the Debt
Securities of such series; provided, however, that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture, and
that subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided further, however, that nothing in this Indenture contained shall
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities of that series waive any past Default or
Event of Default and its consequences for that series specified in the terms
thereof as contemplated by Section 2.03, except (i) a Default in the payment of
the
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59
principal of, and premium, if any, or interest on, any of the Debt Securities
and (ii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected thereby. In case of any such
waiver, such Default shall cease to exist, any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.07. Trustee To Give Notice of Defaults Known to It, but
May Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90
days after the occurrence of a Default actually known to a responsible officer
with respect to a series of Debt Securities give to the Holders thereof, in the
manner provided in Section 13.03, notice of all Defaults with respect to such
series actually known to a responsible officer of the Trustee, unless such
Defaults shall have been cured or waived before the giving of such notice;
provided that, except in the case of Default in the payment of the principal of,
or premium, if any, or interest on, any of the Debt Securities of such series or
in the making of any sinking fund payment with respect to the Debt Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a committee of
directors or responsible officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders thereof.
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain
Suits under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder of any Debt Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, 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, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the Trust Indenture Act, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the
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provisions of this Section 6.08 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than ten percent in principal amount of the Outstanding Debt
Securities of that series or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, or premium, if any, or interest
on, any Debt Security on or after the due date for such payment expressed in
such Debt Security.
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities. The Trustee,
prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of
the first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to
the Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations
with respect to such series as are specifically set forth in this
Indenture, and no implied covenants or
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obligations with respect to such series shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture; but the
Trustee shall examine the evidence furnished to it pursuant to
Section 5.03 to determine whether or not such evidence conforms to
the requirement of this Indenture;
(c) the Trustee shall not be liable for an error of judgment made in
good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
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Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise
provided in Section 7.01:
(a) the Trustee may rely conclusively and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) 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 of Debt Securities of any series pursuant
to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which may be Incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
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(f) prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or
document, unless requested in writing to do so by the Holders of a
majority in aggregate principal amount of the then outstanding Debt
Securities of a series affected by such matter; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be Incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity satisfactory to it against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such investigation shall be paid by the Company or, if
paid by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder; and
(h) if any property other then cash shall at any time be subject to
a Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction
or by the supplemental instrument subjecting such property to such lien,
shall be entitled to make advances for the purpose of preserving such
property or of discharging tax Liens or other prior Liens or encumbrances
thereon.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Debt Securities. The recitals contained herein and in the Debt Securities
(except the Trustee's certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities of any series, except
that the Trustee represents that it
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64
is duly authorized to execute and deliver this Indenture, authenticate the Debt
Securities and perform its obligations hereunder, and that the statements made
by it or to be made by it in a Statement of Eligibility and Qualification on
Form T-1 supplied to the Company are true and accurate. The Trustee shall not be
accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
Securities. The Trustee or any paying agent or Registrar, in its individual or
any other capacity, may become the owner or pledgee of Debt Securities and
subject to the provisions of the Trust Indenture Act relating to conflicts of
interest and preferential claims may otherwise deal with the Company with the
same rights it would have if it were not Trustee, paying agent or Registrar.
SECTION 7.05. Moneys Received by Trustee To Be Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time to the Company upon a Company
Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants
and agrees to pay in Dollars to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Trustee and the Company shall
from time to time agree in writing for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to
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65
hold it harmless against, any loss, liability, claim, damage or expense incurred
without negligence, wilful misconduct or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance or administration of this
trust or trusts hereunder, including the reasonable costs and expenses of
defending itself against any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligations of the
Company under this Section 7.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. The Company and the Holders agree that such
additional indebtedness shall be secured by a Lien prior to that of the Debt
Securities upon all property and funds held or collected by the Trustee, as
such, except funds held in trust for the payment of principal of, and premium,
if any, or interest on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee To Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company
may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by
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66
giving notice to the Company. The Holders of a majority in principal amount of
the Debt Securities of a particular series may remove the Trustee for such
series and only such series by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders
of a majority in principal amount of the Debt Securities of a particular series
and such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Debt Securities of each applicable series. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may, at the expense of the Company, petition any court of
competent jurisdiction for
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the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.06 shall continue for
the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more series, the Company,
any retiring Trustee and each successor or separate Trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Debt Securities shall have been authenticated but
not delivered, any such successor to the Trustee may
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adopt the certificate of authentication of any predecessor trustee, and deliver
such Debt Securities so authenticated; and in case at that time any of the Debt
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Debt Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Debt
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000,
as set forth in its most recent published annual report of condition. No obligor
upon the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities of such series. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act this Indenture or 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 Section
310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who had resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
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ARTICLE VIII
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders. Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof
at any meeting of Holders duly called and held in accordance with the provisions
of Section 5.02 or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.09,
proof of the execution of any instrument by a Holder or his agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
The ownership of Registered Securities of any series shall be proved
by the Debt Security Register or by a certificate of the Registrar for such
series.
The Trustee may require such additional proof of any matter referred
to in this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to
due presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.03) interest on such Registered
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Security and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Registrar shall be affected by any notice to the
contrary; and all such payments so made to any such Holder for the time being,
or upon his order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Registered Security.
None of the Company, the Trustee, any paying agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action taken
by the Holder of any Debt Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Debt Security and of any
Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or such other Debt Securities. Any action taken by the
Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the Holders of all the
Debt Securities of such series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Registered Securities entitled to
give their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding
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paragraph, those Persons who were Holders of Registered Securities at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders of
Registered Securities after such record date. No such consent shall be valid or
effective for more than 120 days after such record date unless the consent of
the Holders of the percentage in aggregate principal amount of the Debt
Securities of such series specified in this Indenture shall have been received
within such 120-day period.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Purposes for Which Supplemental Indenture May Be
Entered into Without Consent of Holders. The Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to evidence the succession pursuant to Article X of another
Person to the Company, or successive successions, and the assumption by
the Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the
Debt Securities;
(b) to surrender any right or power herein conferred upon the
Company, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders
of all or any series of Debt Securities (and if such covenants are to be
for the benefit of less than all series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) as the Board of Directors shall consider to be for the protection
of the Holders of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a Default in any of such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of
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all or any of the several remedies provided in this Indenture; provided,
that in respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular period
of grace after Default (which period may be shorter or longer than that
allowed in the case of other Defaults) or may provide for an immediate
enforcement upon such Default or may limit the remedies available to the
Trustee upon such Default or may limit the right of the Holders of a
majority in aggregate principal amount of any or all series of Debt
Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt Securities
of any series that may be defective or inconsistent with any other
provision contained herein, in any supplemental Indenture or in the Debt
Securities of such series; to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee, or to make such other provisions in
regard to matters or questions arising under this Indenture as shall not
adversely affect the interests of any Holders of Debt Securities of any
series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing
herein contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;
(e) to add to or change any of the provisions of this Indenture to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, or interest on, Registered Securities; provided, that any
such action shall not adversely affect the interests of the Holders of
Debt Securities of any series in any material respect;
(f) to comply with Article X;
(g) in the case of any Debt Securities, if any, subordinated
pursuant to Article XII, to make any change in Article XII that would
limit or terminate the benefits applicable to any holder of Senior
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Indebtedness (or Representatives therefor) under Article XII;
(h) to add Guarantees with respect to the Debt Securities or to
secure the Debt Securities;
(i) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise
permitted under this Section 9.01 shall (i) neither (A) apply to any Debt
Security of any series created prior to the execution of such supplemental
Indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security outstanding;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee;
(k) to establish the form or terms of Debt Securities of any series
as permitted by Sections 2.01 and 2.03; and
(l) to provide for uncertified Debt Securities in addition to or in
place of uncertified Debt Securities or to alter the provisions of Article
2 hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental Indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
Indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the
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Holders of any of the Debt Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
In the case of any Debt Securities subordinated pursuant to Article
XII, an amendment under this Section 9.01 may not make any change that adversely
affects the rights under Article XII of any holder of such Senior Indebtedness
then Outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of
Debt Securities. Without notice to any Holder but with the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental Indenture or of modifying in any manner the rights of the
Holders of the Debt Securities of such series; provided, that no such
supplemental Indenture, without the consent of the Holders of each Debt Security
so affected, shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; (ii) reduce
the rate of or extend the time for payment of interest on any Debt Security;
(iii) reduce the principal of or extend the Stated Maturity of any Debt
Security; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
other than that stated in the Debt Security; (vi) in the case of any Debt
Security subordinated pursuant to Article XII, make
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any change in Article XII that adversely affects the rights of any Holder under
Article XII; (vii) release any security that may have been granted in respect of
the Debt Securities; or (viii) make any change in Section 6.06 or this Section
9.02.
A supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
Upon the request of the Company, accompanied by a copy of a
resolution of the Board of Directors authorizing the execution of any such
supplemental Indenture, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental Indenture unless such supplemental Indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
In the case of any Debt Securities subordinated pursuant to Article
XII, an amendment under this Section 9.02 may not make any change that adversely
affects the rights under Article XII of any holder of such Senior Indebtedness
then Outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
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SECTION 9.03. Effect of Supplemental Indentures. Upon the execution
of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures. Debt Securities of any series authenticated and
delivered after the execution of any supplemental Indenture pursuant to the
provisions of this Article IX may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental Indenture. New Debt Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental Indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of such series then outstanding.
Failure to make the appropriate notation or to issue a new Debt Security of such
series shall not affect the validity of such amendment.
SECTION 9.05. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Debt Securities unless such consideration
is offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
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ARTICLE X
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Company. The
Company shall not consolidate with or merge with or into any Person, or convey,
transfer or lease all or substantially all its assets, unless: (i) either (a)
the Company shall be the continuing Person in the case of a merger or (b) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities according to their
tenor, and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a result of such
transaction as having been Incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if any)
comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case
of any consolidation or merger, or conveyance or transfer of the assets of the
Company as an entirety or virtually as an entirety in accordance with Section
10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation shall be relieved of any further
obligation under the Indenture and the Debt Securities. The Successor Company
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Company, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
which previously shall have been signed and
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delivered by the officers of the Company to the Trustee for authentication, and
any Debt Securities which the Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities appertaining thereto thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 11.01. Applicability of Article. If, pursuant to Section
2.03, provision is made for the defeasance of Debt Securities of a series, then
the provisions of this Article XI relating to defeasance of Debt Securities
shall be applicable except as otherwise specified pursuant to Section 2.03 for
Debt Securities of such series.
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance.
(a) If at any time (i) the Company shall have delivered to the Trustee for
cancelation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09 and (2) Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 11.05) or (ii) all Debt Securities of such series not
theretofore delivered to the Trustee for cancelation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Section 2.03)
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sufficient to pay at maturity or upon redemption all Debt Securities of such
series not theretofore delivered to the Trustee for cancelation, including
principal and premium, if any, and interest due or to become due on such date of
maturity or redemption date, as the case may be, and if in either case the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive payments of
principal of, and premium, if any, and interest on, such Debt Securities) with
respect to the Debt Securities of such series, and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an opinion of counsel and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at
any time may terminate, with respect to Debt Securities of a particular series,
(i) all its obligations under the Debt Securities of such series and this
Indenture with respect to the Debt Securities of such series ("legal defeasance
option") or (ii) its obligations with respect to the Debt Securities of such
series under clause (ii) of Section 10.01 and the related operation of Section
6.01(d) and the operation of Sections 6.01(e), (f) and (i) ("covenant defeasance
option"). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities of the defeased series may not be accelerated
because of an Event of Default specified in Sections 6.01(d), (e), (f) and (i)
(except to the extent covenants or agreements referenced in such Sections remain
applicable).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06
and 11.07 shall
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survive until the Debt Securities of the defeased series have been paid in full.
Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall
survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise
its legal defeasance option or its covenant defeasance option with respect to
Debt Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium and
interest when due on all the Debt Securities of such series to maturity or
redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such
series are subordinated pursuant to Article XII, is not prohibited by
Article XII;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
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(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case of the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such 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 defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of Debt Securities of such series 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; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
SECTION 11.04. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities of the defeased series. In the event the Debt Securities of
the defeased series are subordinated pursuant to Article XII, money and
securities so held in trust are not subject to Article XII.
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SECTION 11.05. Repayment to Company. The Trustee and any paying
agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
any paying agent shall pay to the Company upon request any money held by them
for the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Subordination of Debt Securities
SECTION 12.01. Applicability of Article; Agreement To Subordinate.
The provisions of this Article XII shall be applicable to the Debt Securities of
any series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the
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subordination is for the benefit of and enforceable by the holders of Senior
Indebtedness. All provisions of this Article XII shall be subject to Section
12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy,
whether or not allowed as a claim against the Company in such bankruptcy
proceeding) before Holders of Subordinated Debt Securities shall be
entitled to receive any payment of principal of, or premium, if any, or
interest on, the Subordinated Debt Securities; and
(2) until the Senior Indebtedness is paid in full, any distribution
to which Holders of Subordinated Debt Securities would be entitled but for
this Article XII shall be made to holders of Senior Indebtedness as their
interests may appear, except that such Holders may receive shares of stock
and any debt securities that are subordinated to Senior Indebtedness to at
least the same extent as the Subordinated Debt Securities.
SECTION 12.03. Default on Senior Indebtedness. The Company may not
pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.04, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (i) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Senior Indebtedness occurs
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or
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(y) such Senior Indebtedness has been paid in full in cash; provided, however,
that the Company may pay the Subordinated Debt Securities without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative of each issue of Designated Senior Indebtedness.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay the Subordinated Debt Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Company and the Trustee of written
notice of such default from the Representative of any Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period (a
"Blockage Notice") and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Company from the Person or Persons who gave such Blockage Notice, (ii) by
repayment in full in cash of such Designated Senior Indebtedness or (iii)
because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section 12.03), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the Subordinated Debt Securities after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of
Senior Indebtedness during such period; provided, however, that if any Blockage
Notice within such 360-day period is given by or on behalf of any holders of
Designated Senior Indebtedness (other than the Bank Indebtedness), the
Representative of the Bank Indebtedness may give another Blockage Notice within
such period; provided further, however, that in no event may the total number of
days during which any Payment Blockage Period or Periods is in effect exceed 179
days in the aggregate during any 360 consecutive day period. For purposes of
this Section 12.03, no default or event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Senior Indebtedness initiating such Payment Blockage Period shall
be, or be made, the basis
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85
of the commencement of a subsequent Payment Blockage Period by the
Representative of such Senior Indebtedness, whether or not within a period of
360 consecutive days, unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
SECTION 12.04. Acceleration of Payment of Debt Securities. If
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. When Distribution Must Be Paid Over. If a
distribution is made to Holders of Subordinated Debt Securities that because of
this Article XII should not have been made to them, the Holders who receive such
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness is paid in
full and until the Subordinated Debt Securities are paid in full, Holders
thereof shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article XII to holders of Senior Indebtedness which otherwise would
have been made to Holders of Subordinated Debt Securities is not, as between the
Company and such Holders, a payment by the Company on Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article XII defines the
relative rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of either
Subordinated Debt Securities or Debt Securities, the obligation of the
Company, which is absolute and unconditional, to pay principal of, and
premium, if any, and interest on, the Subordinated Debt Securities and the
Debt Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its available remedies upon
a Default, subject to the rights of holders of Senior
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86
Indebtedness to receive distributions otherwise payable to Holders of
Subordinated Debt Securities.
SECTION 12.08. Subordination May Not Be Impaired by Company. No
right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
however, that, if an issue of Senior Indebtedness has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 12.11. Article XII Not To Prevent Defaults or Limit Right to
Accelerate. The failure to make a payment pursuant to the Debt Securities by
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default.
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87
Nothing in this Article XII shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of either the Subordinated Debt
Securities or the Debt Securities, as the case may be.
SECTION 12.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article XII, and none of the Holders thereof shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness of
the Company or any other creditor of the Company.
SECTION 12.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to such
Holders or (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XII. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
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88
SECTION 12.14. Trustee To Effectuate Subordination. Each Holder by
accepting a Subordinated Debt Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders of Subordinated Debt Securities
and the holders of Senior Indebtedness as provided in this Article XII and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Subordinated Debt
Securities or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article XII
or otherwise.
SECTION 12.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Subordinated Debt Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Subordinated Debt Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01. Successors and Assigns of Company Bound by Indenture.
All the covenant's stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Acts of Board, Committee or Officer of Successor
Company Valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board,
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89
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any Successor
Company.
SECTION 13.03. Required Notices or Demands. Except as otherwise
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited postage prepaid in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee) as
follows: Premier Parks Inc., 122 East 42nd Street, 49th Floor, New York, NY
10168, Attention: Chief Financial Officer. Except as otherwise expressly
provided in this Indenture, any notice, direction, request or demand by the
Company or by any Holder to or upon the Trustee may be given or made, for all
purposes, by being deposited, postage prepaid, in a post office letter box in
the United States addressed to the corporate trust office of the Trustee
initially at The Bank of New York, 101 Barclay Street, Floor 21W, New York, New
York 10286, Attention: Corporate Trust Administration. The Company or the
Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the
Company or the Trustee pursuant to the provisions of this Indenture shall be
deemed to be properly mailed by being deposited postage prepaid in a post office
letter box in the United States addressed to such Holder at the address of such
Holder as shown on the Debt Security Register. Any report pursuant to Section
313 of the Trust Indenture Act shall be transmitted in compliance with
subsection (c) therein.
In the event of suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose thereunder.
In the event of suspension of publication of any Authorized
Newspaper or by reason of any other cause it shall be impracticable to give
notice by publication, then such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for every purpose
hereunder.
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90
Failure to mail a notice or communication to a Holder or any defect
in it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 13.04. Indenture and Debt Securities To Be Construed in
Accordance with the Laws of the State of New York. This Indenture and each Debt
Security shall be deemed to be New York contracts, and for all purposes shall be
construed in accordance with the laws of said State (without reference to
principles of conflicts of law).
SECTION 13.05. Officers' Certificate and Opinion of Counsel To Be
Furnished upon Application or Demand by the Company. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture 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 such
Person, such condition or covenant has been complied with.
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91
SECTION 13.06. Payments Due on Legal Holidays. In any case where the
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date is
not a business day, the record date shall not be affected.
SECTION 13.07. Provisions Required by Trust Indenture Act To
Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 318,
inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 13.08. Computation of Interest on Debt Securities. Interest,
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 13.10. No Recourse Against Others. An incorporator or any
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Debt Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Debt
Securities.
SECTION 13.11. Severability. In case any provision in this
Indenture, the Debt Securities shall be
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92
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12. Effect of Headings. The article and section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 13.13. Indenture May Be Executed in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
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93
The Trustee hereby accepts the trusts in this Indenture upon the
terms and conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed as of the date first written above.
PREMIER PARKS INC.,
by /s/
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by /s/
--------------------------------------
Name:
Title:
EXECUTION COPY
PREMIER PARKS INC.
$430,000,000
9 3/4% SENIOR NOTES DUE 2007
------------------------------
FIRST
SUPPLEMENTAL
INDENTURE
Dated as of June 30, 1999
------------------------------
------------------------------
THE BANK OF NEW YORK
as Trustee
------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE dated as of June 30, 1999 (the
"Supplemental Indenture") between Premier Parks Inc., a Delaware corporation
(the "Company"), and The Bank of New York, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated
as of June 30, 1999 (the "Original Indenture"), with The Bank of New York, as
trustee;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by this Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Debt
Securities may at any time be established by the Board of Directors of the
Company in accordance with the provisions of the Original Indenture and the
terms of such series may be established by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new
series of Debt Securities;
WHEREAS, additional Debt Securities of other series hereafter
established, except as may be limited in the Original Indenture as at the time
supplemented and modified, may be issued from time to time pursuant to the
Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
SECTION 1.01 Establishment. (a) There is hereby established a new
<PAGE>
series of Notes to be issued under the Indenture, to be designated as the
Company's 9-3/4% Senior Notes due 2007 (the "Notes").
(b) There are to be authenticated and delivered $430,000,000
principal amount of Notes.
(c) The Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Notes shall be The Depository Trust Company.
(d) Each Note shall be dated the date of authentication thereof and
shall bear interest from the date of original issuance thereof or from the most
recent date to which interest has been paid or duly provided for.
(e) If and to the extent that the provisions of the Original
Indenture are duplicative of, or in contradiction with, the provisions of this
Supplemental Indenture, the provisions of this Supplemental Indenture shall
govern.
ARTICLE II
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 2.01. Definitions. (a) All capitalized terms used herein and
not otherwise defined below shall have the meanings ascribed thereto in the
Original Indenture.
(b) The following are definitions used in this Supplemental
Indenture and to the extent that a term is defined both herein and in the
Original Indenture, the definition in this Supplemental Indenture shall govern.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly
or
<PAGE>
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Asset Sale" means (i) the sale, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business;
provided that the sale, conveyance or other disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a
whole will be governed by Section 5.11 and/or Section 6.01 hereof and not by
Section 5.06 hereof, and (ii) the issue or sale by the Company or any of its
Restricted Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $10.0 million or (b) for net proceeds in excess of $10.0
million. Notwithstanding the preceding, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) the transfer of Equity
Interests in any Restricted Subsidiary pursuant to the Subordinated Indemnity
Agreement or the Partnership Parks Agreements, (iv) the issuance of Equity
Interests by a Restricted Subsidiary to any employee thereof or as consideration
for the acquisition of all or substantially all of the assets of, or a majority
of the Voting Stock of, any Person (or a business unit or division of such
Person), provided that the primary business of such Person (or such unit or
division) is a Permitted Business, (v) the substitution of property in
accordance with the terms of the Parcel Lease, dated November 7, 1997, between
Marine World and Park Management Corp. as the same may be modified or amended
from time to time after April 1, 1998, provided such modification or amendment
does not adversely affect the interests of the Holders in any material respect,
and (vi) a Restricted Payment that is permitted by Section 5.03 hereof.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee
<PAGE>
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction (including any period for which such lease has
been extended or may, at the option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars or foreign
currency, (ii) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than one year from the date of
acquisition, (iii) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any lender party to the Credit Facilities or with
any commercial bank having capital and surplus in excess of $500.0 million and a
Thompson Bank Watch Rating of "B" or better, (iv) repurchase obligations with a
term of not more than thirty days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper having the highest rating obtainable from Moody's Investors
Service, Inc. or Standard & Poor's Corporation and in each case maturing within
one year after the date of acquisition, (vi) securities with maturities of six
months or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state,
<PAGE>
commonwealth or territory, the securities of which state, commonwealth,
territory, political subdivision or taxing authority (as the case may be) are
rated at least "A" by Standard & Poor's Corporation or "A" by Moody's Investors
Service, Inc. and (vii) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (i) through (vi)
of this definition.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries taken
as a whole to any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act), (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company, (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" becomes the "beneficial owner" (as such terms are defined
in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of
more than 35% of the Voting Stock of the Company, or (iv) the first day on which
a majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Company" means Premier Parks Inc., and any and all successors
thereto.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i)
provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) Consolidated
Interest Expense of such Person and its Restricted Subsidiaries for such period,
to the extent that any such expense was deducted in computing such Consolidated
Net Income, plus (iii) depreciation, amortization (including any depreciation or
amortization arising out of purchases by the Company or any Restricted
Subsidiary of Equity Interests in the partners of the Co-Venture Partnerships
and amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, minus (iv) non-cash items increasing
such Consolidated Net Income for such period, in each case, on a consolidated
basis and determined in accordance with GAAP (other than accrual of income in
the ordinary course of business in respect of a future cash payment).
<PAGE>
Notwithstanding any other provision of this Indenture to the contrary,
"Consolidated Cash Flow" of the Company for any period will be deemed to include
100% of the cash distributions to the Company or any of its Restricted
Subsidiaries in respect of such period from the Co-Venture Partnerships,
directly or indirectly, out of the Consolidated Cash Flow of the Co-Venture
Partnerships in respect of such period.
"Consolidated Indebtedness" means, with respect to any Person as of
any date of determination, the sum, without duplication, of (i) the total amount
of Indebtedness and Attributable Debt of such Person and its Restricted
Subsidiaries, plus (ii) the total amount of Indebtedness and Attributable Debt
of any other Person, to the extent that the same has been guaranteed by the
referent Person or one or more of its Restricted Subsidiaries, plus (iii) the
aggregate liquidation value of all Disqualified Stock of such Person and all
preferred stock of Restricted Subsidiaries of such Person, in each case,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum of (i) the consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations) and (ii) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period,
and (iii) any interest expense on Indebtedness or Attributable Debt of another
Person that is guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such guarantee or Lien is called upon). The term
"Consolidated Interest Expense" shall not include the consolidated interest
expense of any Person with respect to (A) (i) any obligations in respect of the
SFEC Zero Coupon Notes so long as (x) the SFEC Escrow Agreement is in full force
and effect and the trustee under the indenture governing the SFEC Notes holds
thereunder an amount sufficient to pay the aggregate principal amount at
maturity of such SFEC Zero Coupon Notes pursuant to the terms thereof or (y) the
SFEC Zero Coupon Notes shall have been defeased in accordance with the indenture
governing the SFEC Zero Coupon Notes, or (ii) Indebtedness of the Co- Venture
Partnerships (or the general partners thereof), except to the extent guaranteed
by the Company or any Restricted Subsidiary (other than such general partners),
or (B) any obligations of the Company or any Restricted Subsidiary under the
Partnership Parks Agreements, the Marine World Agreements or the Subordinated
Indemnity Agreement.
<PAGE>
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and prior to any
deduction in respect of dividends on any series of preferred stock of such
Person, determined in accordance with GAAP; provided that (i) the Net Income
(but not loss) of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the referent
Person or a Wholly Owned Restricted Subsidiary thereof, (ii) the Net Income of
any Person acquired in a pooling of interests transaction for any period prior
to the date of such acquisition shall be excluded and (iii) the cumulative
effect of a change in accounting principles shall be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Co-Venture Parks" means Six Flags Over Georgia and Six Flags Over
Texas.
"Co-Venture Partnerships" means (i) Six Flags Over Georgia II, L.P.,
a Delaware Limited Partnership and (ii) Texas Flags, Ltd., a Texas Limited
Partnership.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Debt to Cash Flow Ratio" means, as of any date of determination,
the ratio of (a) the Consolidated Indebtedness of the Company as of such date to
(b) the Consolidated Cash Flow of the Company for the four most recent full
fiscal quarters ending immediately prior to such date for which financial
statements have been filed with the SEC, determined on a pro forma basis after
giving effect to all acquisitions or Asset Sales made by the Company and its
Restricted Subsidiaries from the beginning of such four-quarter period through
and including such date of determination (including any related financing
transactions) as if such acquisitions and dispositions had occurred at the
<PAGE>
beginning of such four-quarter period. In addition, for purposes of calculating
the Debt to Cash Flow Ratio, (i) acquisitions that have been made by the Company
or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four- quarter reference period or subsequent to such reference period and on or
prior to the calculation date shall be deemed to have occurred on the first day
of the four-quarter reference period and Consolidated Cash Flow for such
reference period shall be calculated without giving effect to clause (ii) of the
proviso set forth in the definition of Consolidated Net Income, and (ii) the
Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
calculation date, shall be excluded.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 1.01(c) hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 5.03 hereof.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but, without limiting the generality of
the foregoing, excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Indebtedness" means up to $1,763.1 million in aggregate
principal amount of Indebtedness (including Indebtedness under the Premier
Credit Facility and the Six Flags Credit Facility) of the Company and its
Subsidiaries in existence on the date of this Indenture, plus the principal
amount, if any, of SFTP Notes
<PAGE>
and Premier Operations Notes that are not tendered and purchased in the tender
offers, in each case, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Government Securities" means (i) direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged and (ii) money market funds at least 95% of the assets of
which constitute Government Securities of the kinds described in clause (i) of
this definition.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, or representing any Hedging Obligations if and
to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the guarantee
by such
<PAGE>
Person of any indebtedness of any other Person. The amount of any Indebtedness
outstanding as of any date shall be (i) the accreted value thereof, in the case
of any Indebtedness issued with original issue discount, and (ii) the principal
amount thereof, together with any interest thereon that is more than 30 days
past due, in the case of any other Indebtedness. The term "Indebtedness" shall
not include (i) any obligations in respect of the SFEC Zero Coupon Notes so long
as (x) the SFEC Escrow Agreement is in full force and effect and the trustee
under the indenture governing the SFEC Notes holds thereunder an amount
sufficient to pay the aggregate principal amount at maturity of such SFEC Zero
Coupon Notes pursuant to the terms thereof or (y) the SFEC Zero Coupon Notes
shall have been defeased in accordance with the indenture governing the SFEC
Zero Coupon Notes, (ii) any obligations of the Company or any Restricted
Subsidiary under the Partnership Parks Agreements, the Marine World Agreements
or the Subordinated Indemnity Agreement or (iii) for purposes of Section 5.05
hereof only, any Indebtedness of the Co-Venture Partnerships (or the general
partners thereof), except to the extent guaranteed by the Company or any
Restricted Subsidiary (other than such general partners).
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees and any deposit or advance made pursuant to
any contract entered into in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company (other than
pursuant to the terms of the Partnership Parks Agreements or the Subordinated
Indemnity Agreement) such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in the
final paragraph of Section 5.03 hereof.
"Issue Date" means June 30, 1999.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or
<PAGE>
not filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Mandatorily Convertible Preferred Stock" means the Company's 7 1/2%
Mandatorily Convertible Preferred Stock.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with any Asset Sale (including, without limitation,
dispositions pursuant to sale and leaseback transactions) and (ii) any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets that were
the subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted
<PAGE>
Subsidiaries.
"Notes" has the meaning assigned to it in Section 1.01(a) hereof.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice President of such Person.
"Permitted Business" means any business related, ancillary or
complementary to the businesses of the Company and its Restricted Subsidiaries
on the date of this Indenture.
"Permitted Investments" means an Investment by the Company or any
Restricted Subsidiary in (i) cash or Cash Equivalents, (ii) the Company, a
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary; provided, however, that the primary
business of such Restricted Subsidiary is a Restricted Subsidiary; provided,
however, that such Person's (or such unit's or division's) primary business is a
Permitted Business; (iv) another Person if the aggregate amount of all
Investments in all such other Persons does not exceed $25.0 million at any one
time outstanding (with each Investment being valued as of the date made and
without giving effect to subsequent changes in value); provided, however, that
such Person's primary business is a Permitted Business; (v) promissory notes
received as consideration for an Asset Sale which are secured by a Lien on the
asset subject to such Asset Sale; provided that the aggregate amount of all such
promissory notes at any one time outstanding does not exceed $5.0 million; (vi)
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 5.06 hereof; (vii) assets acquired solely in exchange
for the issuance of Equity Interests (other than Disqualified Stock) of the
Company; (viii) receivables owing to the Company or any Restricted Subsidiary,
if created or acquired in the ordinary course of business; (ix) payroll, travel
and similar advances that are made in the ordinary course of business; (x) loans
or advances to employees made in the ordinary course of business consistent with
past practices of the Company or such Restricted Subsidiary; (xi) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and
<PAGE>
owing to the Company or any Restricted Subsidiary or in satisfaction of
judgments; and (xii) other Investments in any Person at any time outstanding
(each such Investment being measured on the date each such Investment was made
and without giving effect to subsequent changes in value) not to exceed $150
million.
"Permitted Liens" means (a) Liens to secure Indebtedness of a
Restricted Subsidiary of the Company that was permitted to be incurred under
this Indenture; (b) Liens existing on the Issue Date; (c) Liens on property or
shares of Capital Stock of another Person at the time such other Person becomes
a Restricted Subsidiary of such Person; provided, however, that such Liens are
not created, incurred or assumed in connection with, or in contemplation of,
such other Person becoming such a Restricted Subsidiary; provided further,
however, that such Lien may not extend to any other property owned by such
Person or any of its Restricted Subsidiaries; (d) Liens on property at the time
such Person or any of its Restricted Subsidiaries acquires the property,
including any acquisition by means of a merger or consolidation with or into
such Person or a Restricted Subsidiary of such Person; provided, however, that
such Liens are not created, incurred or assumed in connection with, or in
contemplation of, such acquisition; provided further, however, that the Liens
may not extend to any other property owned by such Person or any of its
Restricted Subsidiaries; (e) Liens securing Indebtedness or other obligations of
a Restricted Subsidiary of such Person owing to such Person or a Restricted
Subsidiary of such Person; (f) Liens securing Hedging Obligations so long as the
related Indebtedness is, and is permitted to be under this Indenture, secured by
a Lien on the same type of property securing such Hedging Obligations; (g) Liens
to secure any Permitted Refinancing Indebtedness; provided, however, that (x)
such new Lien shall be limited to all or part of the same property that secured
the original Indebtedness (plus improvements on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness refinanced at the time the original Lien
became a Permitted Lien and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement; (h)(i) mortgages, liens, security interests,
restrictions or encumbrances that have been placed by any developer, landlord or
other third party on property over which the Company or any Restricted
Subsidiary of the Company has easement rights or on any real property leased by
the Company or any Restricted Subsidiary of the Company and subordination or
similar agreements relating thereto and (ii) any condemnation or eminent domain
proceedings affecting any real property; (i) pledges or deposits by such Person
under workmen's compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such Person is a
party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or appeal
<PAGE>
bonds to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case incurred in the
ordinary course of business; (j) Liens imposed by law, such as carriers',
warehousemen's and mechanic's Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings for review; (k) Liens for
property taxes not yet due or payable or subject to penalties for non-payment or
which are being contested in good faith and by appropriate proceedings; (l)
minor survey exceptions, minor encumbrances, easements or reservations of, or
rights of others for, licenses, rights of way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real properties or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness and which do not in the aggregate
materially impair the use of such properties in the operation of the business of
such Person; (m) Liens securing Purchase Money Indebtedness; provided, however,
that (i) the Indebtedness secured by such Liens is otherwise permitted to be
incurred under this Indenture, (ii) the principal amount of any Indebtedness
secured by any such Lien does not exceed the cost of assets or property so
acquired or constructed and (iii) the amount of Indebtedness secured by any such
Lien is not subsequently increased; (n) Liens arising out of the transactions
contemplated by the Partnership Parks Agreements, the Marine World Agreements,
the Subordinated Indemnity Agreement or the Six Flags Agreement; and (o) Liens
incurred in the ordinary course of business of the Company or any Subsidiary of
the Company with respect to obligations that do not exceed $20.0 million at any
one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses,
including premiums, incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
<PAGE>
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the
Company or by a Restricted Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Premier Operations Notes" means Premier Operations' 9 3/4% Senior
Notes due 2007.
"Public Equity Offering" means an underwritten primary public
offering of common stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Purchase Money Indebtedness" means Indebtedness (i) consisting of
the deferred purchase price of property, conditional sale obligations,
obligation under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (ii)
incurred to finance the acquisition by the Company or a Restricted Subsidiary of
the Company of such asset, including additions and improvements; provided,
however, that any Lien arising in connection with any such Indebtedness shall be
limited to the specified asset being financed or, in the case of real property
or fixtures, including additions and improvements, the real property on which
such asset is attached; and provided further, that such Indebtedness is incurred
within 180 days after such acquisition, addition or improvement by the Company
or Restricted Subsidiary of such asset.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
<PAGE>
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"SFEC Notes" means SFEC's 8-7/8% Senior Notes due 2006.
"SFTP Notes" means SFTP 12-1/4% Senior Subordinated Discount Notes
due 2005.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Specified Amount" means, as of any date, the product of (a) the
Consolidated Cash Flow of the Company for the most recently ended four-quarter
period for which financial statements have been filed with the SEC determined on
a pro forma basis after giving effect to all acquisitions or Asset Sales made by
the Company and its Restricted Subsidiaries from the beginning of such
four-quarter period through and including such date of determination (including
any related financing transactions) as if such acquisitions and dispositions had
occurred at the beginning of such four-quarter period, times (b) 0.75.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Strategic Equity Investment" means a cash contribution to the
common equity capital of the Company or a purchase from the Company of common
Equity Interests (other than Disqualified Stock), in either case by or from a
Strategic Equity Investor and for aggregate cash consideration of at least $25.0
million.
"Strategic Equity Investor" means, as of any date, any Person (other
than an Affiliate of the Company) engaged in a Permitted Business which, as of
the day immediately before such date, had a Total Equity Market Capitalization
of at least $1.0
<PAGE>
billion.
"Subordinated Indemnity Agreement" means the Subordinated Indemnity
Agreement, dated as of April 1, 1998, among the Company, SFEC and its
subsidiaries, Time Warner Inc., Time Warner Entertainment Company, L.P. and
TW-SPV Co. , as the same may be modified or amended from time to time after
April 1, 1998, provided such modification or amendment does not adversely affect
the interests of the Holders in any material fashion.
"Total Equity Market Capitalization" of any Person means, as of any
day of determination, the sum of (i) the product of (A) the aggregate number of
outstanding primary shares of (x) common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such Person) and (y) preferred
stock of such Person on such day (to the extent listed on a national securities
exchange or the Nasdaq National Market System) multiplied by (B) the average
closing price of such common stock or such preferred stock, as the case may be
listed on a national securities exchange or the Nasdaq National Market System
over the 20 consecutive business days immediately preceding such day, plus (ii)
the liquidation value of any outstanding shares of preferred stock of such
Person on such day not listed on a national securities exchange or the Nasdaq
National Market System.
"Unrestricted Subsidiary" means any Subsidiary (other than Premier
Operations or SFTP or any successor to either of them) that is designated by the
Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution;
but only to the extent that such Subsidiary: (a) has no Indebtedness other than
Non-Recourse Debt; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (c) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries; and (e) has at least one director on its board of
directors that is not a director or executive officer of the Company or any of
its Restricted Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries. Any such designation by the Board of Directors shall be evidenced
to the Trustee by
<PAGE>
filing with the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and was permitted by Section
5.03 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date (and, if such Indebtedness is not
permitted to be incurred as of such date under Section 5.05 hereof, the Company
shall be in default of such covenant). The Board of Directors of the Company may
at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 5.05 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote by the holder thereof in the
election of the Board of Directors (or comparable 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 (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person or by such Person and one or more Wholly
Owned Restricted Subsidiaries of such Person.
Section 2.02. Other Definitions.
<PAGE>
Defined in
Term Section
"Additional Notes" 3.01
"Affiliate Transaction" 5.07
"Asset Sale" 5.06
"Asset Sale Offer" 4.03
"Basket Period" 5.03
"Change of Control Offer" 5.11
"Change of Control Payment" 5.11
"Change of Control Payment Date" 5.11
"Covenant Defeasance" 8.03
"Event of Default" 7.01
"Excess Proceeds" 5.06
"incur" 5.05
"Legal Defeasance" 8.02
"Offer Amount" 4.03
"Offer Period" 4.03
"Permitted Debt" 5.05
"Purchase Date" 4.03
"Restricted Payments" 5.03
ARTICLE III
THE NOTES
Section 3.01. Issuance of Additional Notes. The Company may, subject
to Section 5.05 hereof, issue additional Notes ("Additional Notes") under this
Indenture which will have identical terms as the Notes issued on the Issue Date
other than with respect to the Issue Date, issue price and first payment of
interest. The Notes issued on the Issue Date and any Additional Notes
subsequently issued shall be treated as a single class for all purposes under
this Indenture.
Section 3.02. Payments by Company by Wire Transfer. The Company
shall make all interest, premium, if any, and principal payments by wire
transfer to any Holder who shall have given written directions to the Company to
make such payments by wire transfer pursuant to the wire transfer instructions
supplied to the Company by such Holder.
<PAGE>
ARTICLE IV
REDEMPTION AND PREPAYMENT
Section 4.01. Optional Redemption. (a) Except as set forth in clause
(b) of this Section 4.01, the Company shall not have the option to redeem the
Notes pursuant to this Section 4.01 prior to June 15, 2003. After June 15, 2003,
the Company may redeem all or part of the Notes upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest thereon to
the applicable redemption date, if redeemed during the twelve-month period
beginning on June 15 of the years indicated below:
Year Percentage
2003 104.875%
2004 103.250%
2005 101.625%
2006 and thereafter 100.000%
(b) Notwithstanding the foregoing, during the first 36 months after
the Issue Date, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Notes (which includes Additional Notes, if
any) originally issued under this Indenture at a redemption price of 109.750% of
the principal amount thereof, plus accrued and unpaid interest to the redemption
date, with the net cash proceeds of one or more Public Equity Offerings and/or
the net cash proceeds of a Strategic Equity Investment; provided that at least
65% of the aggregate principal amount of Notes (which includes Additional Notes,
if any) originally issued remains outstanding immediately after the occurrence
of each such redemption (excluding the Notes held by the Company and its
Subsidiaries); and provided, further, that any such redemption shall occur
within 60 days of the date of the closing of each such Public Equity Offering
and/or Strategic Equity Investment.
(c) Any redemption pursuant to this Section 4.01 shall be made
pursuant to the provisions of Section 3.01 through 3.03 of the Original
Indenture.
Section 4.02. Mandatory Redemption. Except as set forth in Sections
5.06 and 5.11, the Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
<PAGE>
Section 4.03. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 5.06 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 business
days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five business days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 5.06 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
4.03 and Section 5.06 hereof and the length of time the Asset Sale Offer shall
remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset
<PAGE>
Sale Offer may only elect to have all of such Note purchased and may not elect
to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a Depositary, if appointed by
the Company, or a paying agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the paying agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 4.03. The Company, the Depositary or the paying
agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company shall authenticate and mail
or deliver such new Note to such Holder, in a principal amount equal to any
<PAGE>
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
Other than as specifically provided in this Section 4.03, any
purchase pursuant to this Section 4.03 shall be made pursuant to the provisions
of Sections 3.01 through 3.03 of the Original Indenture.
ARTICLE V
COVENANTS
Section 5.01. Compliance Certificate. (a) The Company shall deliver
to the Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the reports delivered
pursuant to Section 5.03(a) of the Original Indenture shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in connection with the audit for
certification of the financial statements contained in such reports, nothing has
come to their attention that would lead them to believe that the Company has
failed to comply with any provisions of Article 4 or Section 5.03 of the
Original Indenture, this Article 5 or Article 6 hereof insofar as the provisions
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
<PAGE>
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith and in any event within five days upon any
Officer becoming aware of any Default or Event of Default or an event which,
with notice or the lapse of time or both, would constitute an Event of Default,
an Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 5.02. Stay, Extension and Usury Laws. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
Section 5.03. Restricted Payments. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or distribution on account
of any Equity Interests of the Company (including, without limitation, any
payment in connection with any merger or consolidation involving the Company) or
to the direct or indirect holders of any Equity Interests of the Company in
their capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem
or otherwise acquire or retire for value (including, without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company; (iii)
make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the Company that is
subordinated to the Notes, except a payment of interest or principal at Stated
Maturity; or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
<PAGE>
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash
Flow test set forth in the first paragraph of Section 5.05 hereof; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments declared or made after April 1, 1998 (excluding
Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding
paragraph) shall not exceed, at the date of determination, the sum, without
duplication, of (i) an amount equal to the Company's Consolidated Cash Flow for
the period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after April 1, 1998 to the end of the Company's most
recently ended full fiscal quarter for which financial statements have been
filed with the SEC (the "Basket Period") less the product of 1.4 times the
Company's Consolidated Interest Expense for the Basket Period, plus (ii) 100% of
the aggregate net cash proceeds received by the Company after April 1, 1998 as a
contribution to its common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or from the issue or
sale after April 1, 1998 of Disqualified Stock or debt securities of the Company
that have been converted into such Equity Interests (other than (x) Equity
Interests (or Disqualified Stock or convertible debt securities) sold to a
Subsidiary of the Company and (y) any sale of Equity Interests of the Company
the net cash proceeds of which are applied pursuant to clause (ii) of the
immediately succeeding paragraph), plus (iii) to the extent that any Restricted
Investment that was made after April 1, 1998 is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (A) the cash return of capital with
respect to such Restricted Investment (less the cost of disposition, if any) and
(B) the initial amount of such Restricted Investment, plus (iv) to the extent
that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary
after April 1, 1998, the fair market value of the Company's or its Restricted
Subsidiary's, as the case may be, Investment in such Subsidiary as of the date
of such redesignation.
The preceding provisions shall not prohibit: (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than Disqualified Stock); provided that the amount of any such
net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause
<PAGE>
(c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase
or other acquisition of subordinated Indebtedness with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no
Default or Event of Default shall have occurred and be continuing (or would
result therefrom), the purchase, redemption, retirement or other acquisition by
the Company or any Restricted Subsidiary of the Company of partnership interests
held by the partners in the limited partners of the Co-Venture Partnerships, the
co-general partner of the Co-Venture Partnerships or, in each case, their
successors, in accordance with and in the manner required or permitted by the
terms of the Partnership Parks Agreements; (v) so long as no Default or Event of
Default shall have occurred and be continuing (or would result therefrom), any
transactions pursuant to or contemplated by, and payments made in connection
with, and in accordance with the terms of, the Partnership Parks Agreements and
the Marine World Agreements; (vi) so long as no Default or Event of Default
shall have occurred and be continuing (or would result therefrom), any
transactions pursuant to or contemplated by, and payments made in connection
with, and in accordance with the terms of, the Subordinated Indemnity Agreement;
(vii) so long as no Default or Event of Default shall have occurred and be
continuing (or would result therefrom), the payment of dividends on the
Mandatorily Convertible Preferred Stock in accordance with the terms thereof as
in effect on the date of this Indenture; (viii) in the event the Company issues
common stock in exchange for or upon conversion of Mandatorily Convertible
Preferred Stock, cash payments made in lieu of the issuance of fractional shares
of common stock, not to exceed $250,000 in the aggregate in any fiscal year; and
(ix) the repurchase, redemption or other acquisition or retirement for value of
any Equity Interests of the Company from employees, former employees, directors
or former directors of the Company or any of its Restricted Subsidiaries (or
permitted transferees of such employees, former employees, directors or former
directors); provided, however, that the aggregate amount of such repurchases
shall not exceed $5.0 million in any twelve-month period.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default;
provided that in no event shall the business currently operated by Premier
Operations or SFTP be transferred to or held by an Unrestricted Subsidiary. If a
Restricted Subsidiary is designated an Unrestricted Subsidiary, all outstanding
Investments owned by the Company and its Restricted Subsidiaries (except to the
extent repaid in cash) in the Subsidiary so designated will be deemed to be
Restricted Payments at the time of such designation and will reduce the amount
available for Restricted Payments under the first paragraph of this covenant.
All such outstanding Investments will be valued at their fair market value at
the time of such designation. That designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
<PAGE>
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this
Section 5.03 shall be determined by the Board of Directors of the Company whose
resolution with respect thereto shall be delivered to the Trustee. The Board of
Directors' determination shall be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $10.0 million. Not later than the date of making any
Restricted Payment (other than any Restricted Payment permitted pursuant to
clause (i) through (ix) of the second preceding paragraph), the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 5.03 were computed, together with a copy of any
fairness opinion or appraisal required by this Indenture.
Section 5.04. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (b) pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries or (iii) transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries. However, the preceding
restrictions will not apply to encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness, (b) the Partnership Parks Agreements, the
Marine World Agreements or the Subordinated Indemnity Agreement, (c) the terms
of any Indebtedness permitted by this Indenture to be incurred by any Restricted
Subsidiary of the Company, (d) this Indenture and the Notes, (e) applicable law,
(f) any instrument governing Indebtedness or Capital Stock of a Person acquired
by the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred, (g) customary
non-assignment
<PAGE>
provisions in leases, licenses or other contracts entered into in the ordinary
course of business, (h) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (iii) above on the property so acquired, (i) any agreement for the sale
of a Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale, (j) obligations otherwise permitted to be incurred
pursuant to the provisions of Section 5.08 that limits the right of the obligee
to dispose of the assets securing such obligations, (k) provisions with respect
to the disposition or distribution of assets or property in joint venture
agreements and other similar agreements entered into in the ordinary course of
business and (l) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 5.05. Incurrence of Indebtedness and Issuance of Preferred
Stock. The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt), and the
Company shall not issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock and the Company's Subsidiaries may incur Indebtedness or
issue shares of preferred stock if the Company's Debt to Cash Flow Ratio at the
time of incurrence of such Indebtedness or the issuance of such Disqualified
Stock or such preferred stock, as the case may be, after giving pro forma effect
to such incurrence or issuance as of such date and to the use of the proceeds
therefrom as if the same had occurred at the beginning of the most recently
ended four full fiscal quarter period of the Company for which financial
statements have been furnished or are required to be furnished to Holders of the
Notes in reports pursuant to Section 5.03 of the Original Indenture, would have
been no greater than 6.0 to 1.
The Company shall not incur any Indebtedness that is contractually
subordinated in right of payment to any other Indebtedness of the Company unless
such Indebtedness is also contractually subordinated in right of payment to the
Notes on substantially identical terms; provided, however, that no Indebtedness
of the Company shall be deemed to be contractually subordinated in right of
payment to any other Indebtedness of the Company solely by virtue of being
unsecured.
The provisions of the first paragraph of this Section 5.05 will not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of
<PAGE>
additional Indebtedness under Credit Facilities, in an amount equal to
$650.0 million (in addition to any Existing Indebtedness and any Permitted
Refinancing Indebtedness in respect thereof);
(ii) the incurrence by the Company and its Restricted Subsidiaries
of additional revolving credit Indebtedness and letters of credit pursuant
to Credit Facilities in an aggregate principal amount (with letters of
credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries
thereunder) at any one time outstanding not to exceed the Specified Amount
as of such date of incurrence; provided that, the aggregate principal
amount of all Indebtedness incurred pursuant to this clause (ii) is
reduced to an outstanding balance of $1.0 million or less for at least 30
consecutive days in each fiscal year;
(iii) the incurrence by the Company and its Restricted Subsidiaries
of the Existing Indebtedness;
(iv) the incurrence by the Company of Indebtedness represented by
the Notes (other than any Additional Notes);
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount not to exceed $25.0 million at any time outstanding;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness and Indebtedness
incurred pursuant to clauses (i) and (ii) above) that was permitted by
this Indenture to be incurred;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on any such Indebtedness, such Indebtedness is, if
any Default or Event of Default with respect to the Company occurs and is
continuing, expressly subordinated to the prior payment in full in cash of
all Obligations with respect to the Notes and (ii)(A) any subsequent
issuance or transfer of Equity Interests that results in any
<PAGE>
such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary thereof and (B) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary thereof shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(vii);
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of (a) Hedging Obligations that are incurred for the purpose
of fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
incurred and (b) Currency Agreements that do not increase the Indebtedness
of the Company and its Restricted Subsidiaries outstanding at any time
other than as a result of fluctuations in foreign currency exchange rates
or interest rates or by reason of fees, indemnities and compensation
payable thereunder;
(ix) Indebtedness in respect of performance bonds, letters of
credits, surety or appeal bonds, prior to any drawing thereunder, for or
in connection with pledges, deposits or payments made or given in the
ordinary course of business;
(x) the guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of
the Company that was permitted to be incurred by another provision of this
Section 5.05 (including, without limiting the generality of the foregoing,
the guarantee by the Company of any Restricted Subsidiary of the Company
of Existing Indebtedness;
(xi) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (xi); and
(xii) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (xii), not to
exceed $75.0 million.
<PAGE>
For purposes of determining compliance with this Section 5.05, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (i) through (xii) above or
is entitled to be incurred pursuant to the first paragraph of this Section 5.05,
the Company shall, in its sole discretion, classify (or later reclassify in
whole or in part, in its sole discretion) such item of Indebtedness in any
manner that complies with this Section 5.05. Accrual of interest, accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on preferred stock in the form of additional shares of the
same class of preferred stock will not be deemed to be an incurrence of
Indebtedness or an issuance of preferred stock for purposes of this Section
5.05; provided, in each such case, that the amount thereof is included in
Consolidated Indebtedness of the Company as accrued.
Section 5.06. Asset Sales. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to consummate an Asset Sale unless (i)
the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed of,
(ii) such fair market value is determined by the Board of Directors and
evidenced by a resolution of the Board of Directors set forth in an Officer's
Certificate delivered to the Trustee and (iii) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash. For purposes of this covenant each of the following shall be deemed to be
cash: (x) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinate to the Notes) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the Company or
such Restricted Subsidiary from further liability or, in the case of the sale of
Capital Stock, that are assumed by the transferee by operation of law and (y)
any securities, notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee that are promptly (subject to
ordinary settlement periods) converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received in that conversion).
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or the applicable Restricted Subsidiary may apply such Net
Proceeds (a) to repay or repurchase Indebtedness of a Restricted Subsidiary of
the Company (and to correspondingly reduce commitments with respect thereto in
the case of revolving credit borrowings), (b) to acquire all or substantially
all of the assets of, or a majority of the Voting Stock of, another Person (or
business unit or division of such Person); provided that the primary business of
such Person (or unit or division) is a Permitted Business, (c) to fund
obligations of the Company or any Restricted Subsidiary under the Partnership
<PAGE>
Parks Agreements or the Subordinated Indemnity Agreement, (d) to acquire Capital
Stock of a Restricted Subsidiary of the Company held by Persons other than the
Company or any Restricted Subsidiary, (e) to make a capital expenditure or (f)
to acquire other long-term assets that are used or useful in a Permitted
Business. Pending the final application of any such Net Proceeds, the Company or
such Restricted Subsidiary may temporarily reduce revolving credit borrowings or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Company will be required to make an offer to all Holders of Notes and all
holders of other Indebtedness of the Company that is pari passu with the Notes
containing provisions similar to those set forth in this Indenture with respect
to offers to purchase or redemptions with the proceeds of sales of assets (an
"Asset Sale Offer") to purchase the maximum principal amount of Notes and such
other pari passu Indebtedness of the Company that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100%
of the principal amount thereof plus accrued and unpaid interest thereon, if
any, to the date of repurchase and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
such Excess Proceeds for any purpose not otherwise prohibited by this Indenture.
If the aggregate principal amount of Notes and such other Indebtedness tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such other Indebtedness to be purchased on a pro rata
basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero.
To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this covenant by virtue thereof.
Section 5.07. Transactions with Affiliates. The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, make any payment to,
or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Restricted
<PAGE>
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $2.5 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing. Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions: (i) any employment agreement entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business, or any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment or
indemnification arrangements, stock options and stock ownership plans approved
by the Board of Directors, or the grant of stock options or similar rights to
employees and directors of the Company pursuant to plans approved by the Board
of Directors, (ii) transactions between or among the Company and/or its
Restricted Subsidiaries, (iii) payment of reasonable directors fees to Persons
who are not otherwise employees of the Company or its Restricted Subsidiaries,
(iv) loans or advances to employees in the ordinary course of business, (v)
Restricted Payments that are permitted by Section 5.03 hereof, (vi) transactions
pursuant to or contemplated by, and in accordance with, the terms of the
Subordinated Indemnity Agreement, (vii) transactions pursuant to or contemplated
by and payments in connection with, and, in each case, in accordance with, the
terms of the Partnership Parks Agreements and (viii) transactions pursuant to or
contemplated by, and in accordance with, the Marine World Agreements.
Section 5.08. Liens. The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, directly or indirectly create, incur, assume
or suffer to exist any Lien securing trade payables, Attributable Debt or
Indebtedness on any asset now owned or hereafter acquired, except Permitted
Liens.
Section 5.09. Line of Business. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, engage in any business other than
Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole.
Section 5.10. Corporate Existence. Subject to Article 6 hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational
<PAGE>
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
Section 5.11. Offer to Repurchase Upon Change of Control. (a) Upon
the occurrence of a Change of Control, the Company shall make an offer (a
"Change of Control Offer") to each Holder of Notes to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder stating: (1) that the Change of
Control Offer is being made pursuant to this Section 5.11 and that all Notes
tendered will be accepted for payment; (2) the purchase price and the purchase
date, which shall be no later than 30 business days from the date such notice is
mailed (the "Change of Control Payment Date"); (3) that any Note not tendered
will continue to accrue interest; (4) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes 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 any Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the paying agent at the address specified in
the notice prior to the close of business on the third business day preceding
the Change of Control Payment Date; (6) that Holders will be entitled to
withdraw their election if the paying agent receives, not later than the close
of business on the second business day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the
<PAGE>
repurchase of Notes as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company will, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the paying
agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The paying agent will promptly mail to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate (upon a written order of the Company) and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each
such new Note will be in a principal amount of $1,000 or an integral multiple
thereof. 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.
To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this paragraph by virtue thereof.
Section 5.12. Limitation on Sale and Leaseback Transactions. The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided that the Company or a
Restricted Subsidiary of the Company may enter into a sale and leaseback
transaction if (i) the Company could have (a) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the Debt to Cash Flow test set forth in the first paragraph of
Section 5.05 hereof or pursuant to clause (vi) of the second paragraph of
Section 5.05 hereof and (b) incurred a Lien to secure such Indebtedness pursuant
to Section 5.08 hereof, (ii) the gross cash proceeds of such sale and leaseback
transaction are at least equal to the fair market value (as determined in good
faith by the Board of Directors and set forth in an Officers' Certificate
delivered to the Trustee) of the property that is the subject of such sale and
leaseback transaction and (iii) the transfer of assets in such sale and
leaseback transaction is permitted by, and the Company or such Restricted
Subsidiary applies the proceeds of such transaction in compliance with, Section
5.06 hereof.
Section 5.13. Limitation on Issuances and Sales in Equity Interests
in Restricted Subsidiaries. The Company (i) shall not, and shall not permit any
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any
<PAGE>
Equity Interests in any Restricted Subsidiary of the Company to any Person
(other than the Company or a Restricted Subsidiary of the Company and other than
transactions contemplated by the Partnership Parks Agreements and the
Subordinated Indemnity Agreement), unless (a)(1) such transfer, conveyance,
sale, lease or other disposition is of all the Equity Interests in such
Restricted Subsidiary or (2) after giving effect thereto, such Restricted
Subsidiary will still constitute a Restricted Subsidiary and (b) the cash Net
Proceeds from such transfer, conveyance, sale, lease or other disposition are
applied in accordance with Section 5.06 hereof, and (ii) will not permit any
Restricted Subsidiary of the Company to issue any of its Equity Interests (other
than, if necessary, shares of its Capital Stock constituting directors'
qualifying shares) to any Person other than to the Company or a Wholly Owned
Restricted Subsidiary of the Company if, after giving effect thereto, such
Restricted Subsidiary will not be a direct or indirect Subsidiary of the
Company.
Section 5.14. 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 of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
Section 5.15. Limitation on Leases. The Company shall not, directly
or indirectly, lease all or substantially all of its properties and assets to
any Person.
ARTICLE VI
SUCCESSORS
With respect to the Notes, the provisions of this Article 6 shall
preempt the provisions of Article 10 of the Original Indenture in their
entirety.
Section 6.01. Merger, Consolidation, or Sale of Assets. The Company
shall not consolidate or merge with or into (whether or not the Company is the
surviving corporation), or sell, assign, transfer, convey or otherwise dispose
of all or substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity unless (i) the Company is
the surviving corporation or the entity or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States, any state
thereof or the District of Columbia; (ii) the entity or Person formed by or
<PAGE>
surviving any such consolidation or merger (if other than the Company) or the
entity or Person to which such sale, assignment, transfer, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Notes and this Indenture pursuant to supplemental indentures in forms
reasonably satisfactory to the Trustee; (iii) immediately after such transaction
no Default or Event of Default exists; and (iv) except in the case of a merger
of the Company with or into a Wholly Owned Restricted Subsidiary of the Company,
the Company or the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made will, both at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Cash Flow test set forth in the
first paragraph of Section 5.05 hereof.
Section 6.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 6.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), 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
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 6.01 hereof.
ARTICLE VII
DEFAULTS AND REMEDIES
With respect to the Notes, the provisions of this Article 7 shall
preempt the provisions of Article 6 of the Original Indenture in their entirety.
Section 7.01. Events of Default. An "Event of Default" occurs if:
<PAGE>
(a) the Company defaults in the payment when due of interest on the
Notes and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at maturity,
upon redemption (including in connection with an offer to purchase) or
otherwise;
(c) the Company fails to comply for (i) a period of 30 days with any
of the provisions of Section 5.06 or 5.11 hereof or (ii) 30 days after notice to
the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class, with other
provisions of Article 5 or Section 6.01 hereof or Sections 4.01, 4.02, 4.07,
4.08, 4.09 or 5.03 of the Original Indenture (in each case, other than failure
to purchase the Notes);
(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture or the Notes for
60 days after notice to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding voting as a
single class;
(e) the Company or any Restricted Subsidiary fails to pay
Indebtedness within any applicable grace period after final maturity or the
acceleration of any Indebtedness by the holders thereof because of a default and
the total amount of such Indebtedness unpaid or accelerated at any time exceeds
$10.0 million;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its Restricted Subsidiaries and such judgment or judgments are not paid,
discharged or stayed for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $10.0 million;
(g) the Company or any Restricted Subsidiary that constitutes a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary pursuant to or within the
meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
<PAGE>
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any Restricted Subsidiary
that constitutes a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of the property of
the Company or any Restricted Subsidiary that constitutes a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 7.02. Acceleration. If any Event of Default (other than an
Event of Default specified in clause (g) or (h) of Section 7.01 hereof with
respect to the Company, any Restricted Subsidiary that constitutes a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary) occurs and is continuing, either the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (g) or
(h) of Section 7.01 hereof occurs with respect to the Company, any Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
all outstanding Notes shall become due and payable without further action or
notice. The
<PAGE>
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after June 15, 2003 by reason of
any willful action or inaction taken or not taken by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
Section 4.01 hereof, then, upon acceleration of the Notes, an equivalent premium
shall also become and be immediately due and payable, to the extent permitted by
law, anything in this Indenture or in the Notes to the contrary notwithstanding.
If an Event of Default occurs prior to June 15, 2003 by reason of any willful
action or inaction taken or not taken by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to such
date, then, upon acceleration of the Notes, an additional premium shall also
become and be immediately due and payable in an amount, for each of the years
beginning on June 15, of the years set forth below, as set forth below
(expressed as a percentage of the amount that would otherwise be due but for the
provisions of this paragraph, plus accrued interest, if any, to the date of
payment):
Year Percentage
- ---- ----------
1999 9.750%
2000 8.125%
2001 6.500%
2002 4.875%
Section 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 7.04. Waiver of Past Defaults. Holders of not less than a
majority
<PAGE>
in aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 7.05. Control by Majority. Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee in personal liability.
Section 7.06. Limitation on Suits. A Holder of a Note may pursue a
remedy with respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of
<PAGE>
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 7.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 7.08. Collection Suit by Trustee. If an Event of Default
specified in Section 7.01(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, premium on, if
any, and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 7.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.06 of the
Original Indenture. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.06 of the Original Indenture
out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that
the Holders may be entitled to receive in such proceeding whether in liquidation
or
<PAGE>
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 7.10. Priorities. If the Trustee collects any money pursuant
to this Article or the Pledge and Escrow Agreement, it shall pay out the money
in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.06 of the Original Indenture, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 7.10.
Section 7.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as a Trustee, 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 and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 7.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VIII
<PAGE>
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
With respect to the Notes, the provisions of this Article 8 shall
preempt the provisions of Article 11 of the Original Indenture in their
entirety.
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge. Upon the Company's
exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Notes on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium on,
if any, and interest on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Article 2 and Section 4.02 of the
Original Indenture, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance. Upon the Company's exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, the Company
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in
Sections 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.11, 5.12, 5.13, 5.14 and
5.15 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied
<PAGE>
(hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 7.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under Section 7.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 7.01(d) through
7.01(f) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.02 or
8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium on, if any, and interest on the
outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
<PAGE>
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Notes pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections 7.01(g) or 7.01(h)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that on the
91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof, all
money and
<PAGE>
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any paying agent (including the Company acting as
paying agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium on , if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company. Any money deposited with the
Trustee or any paying agent, or then held by the Company, in trust for the
payment of the principal of, premium on, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its written
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as a secured creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
paying agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such paying agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
<PAGE>
Section 8.07 Reinstatement. If the Trustee or paying agent is unable
to apply any United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or paying agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium on, if
any, or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE IX
MISCELLANEOUS
References to (A) "Section 6.01" in the Original Indenture in the
definition of Original Issue Discount Debt Security and in Section 2.03(14)
shall be deemed to be references to Section 7.01 of this Supplemental Indenture;
(B) "Section 6.02" in the Original Indenture in Section 2.03(14) shall be deemed
to be a reference to Section 7.09 of this Supplemental Indenture; (C) "Section
11.05" in the Original Indenture in Sections 4.04(e) as 7.05 shall be deemed to
be references to Section 8.06 of this Supplemental Indenture; (D) "Section
6.01(g) or (h)" in the Original Indenture in Sections 7.06 and 11.03 (3) shall
be deemed to be references to Section 7.01(g) or (h) of this Supplemental
Indenture; and (E) "Section 6.06" in the Original Indenture in Section 9.02
shall be deemed to be a reference to Section 7.05 of this Supplemental
Indenture.
[Signatures on following page]
<PAGE>
SIGNATURES
Dated as of June 30, 1999
PREMIER PARKS INC.
By:/s/
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:/s/
--------------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
(Face of Note)
(a) CUSIP 740540 AF 6 No.
9 3/4% Senior Notes due 2007
$
PREMIER PARKS INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on June 15, 2007.
Interest Payment Dates: June 15, and December 15
Record Dates: June 1 and December 1
PREMIER PARKS INC.
By: _____________________________________
Name: Patrick J. Walker
Title: Vice President
By: _____________________________________
Name: James M. Coughlin
Title: Assistant Secretary
<PAGE>
This is one of the
Notes referred to in the
within-mentioned Indenture:
Dated: June 30, 1999
The Bank of New York,
as Trustee
By: _____________________________
Authorized Signatory
<PAGE>
(Back of Note)
9 3/4% Senior Notes due 2007
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.09 OF THE ORIGINAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.15 OF THE ORIGINAL
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELATION PURSUANT TO SECTION 2.10 OF THE ORIGINAL INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. Premier Parks Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 9
3/4% per annum from June 30, 1999 until maturity. The Company will pay interest
semi-annually on June 15 and December 15 of each such year, or if any such day
is not a business day, on the next succeeding business day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be December 15, 1999. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-
<PAGE>
day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the June 1 or December 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.17 of the
Original Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium, if any, and interest at the office or agency of the
Company maintained for such purpose within or without The City and State of New
York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium on, the Global
Note and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the paying agent on or prior to the applicable
record date. Such payment shall be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as paying agent and registrar. The Company
may change any paying agent or registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated
as of June 30, 1999 (the "Original Indenture"), as supplemented by the
Supplemental Indenture as of the same date (the "Supplemental Indenture" and,
together with the Original Indenture, the "Indenture") between the Company and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are obligations of the Company initially in
aggregate principal amount of $430.0 million. Subject to compliance with Section
5.05 of the Supplemental Indenture, the Company is permitted to issue Additional
Notes under the Indenture in an unlimited principal amount. Any such Additional
Notes that are actually issued will be treated as issued and outstanding Notes
(and as the same class as the initial Notes) for all purposes of the Indenture,
under the
<PAGE>
context clearly indicated otherwise.
5. Optional Redemption. (a) Except as set forth in subparagraph (b)
of this Paragraph 5, the Company shall not have the option to redeem the Notes
prior to June 15, 2003. Thereafter, the Company shall have the option to redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on June 15
of the years indicated below:
Year Percentage
2003 104.875%
2004 103.250%
2005 101.625%
2006 and thereafter 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, during the first 36 months after the date of original issuance of
the Notes, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes (which includes Additional Notes, if any)
originally issued under the Indenture at a redemption price of 109.750% of the
principal amount thereof on the redemption date with the net cash proceeds of
one or more Public Equity Offerings and/or the net cash proceeds of a Strategic
Equity Investment; provided that at least 65% of the aggregate principal amount
of Notes (which includes Additional Notes, if any) originally issued remains
outstanding immediately after the occurrence of each such redemption (excluding
the Notes held by the Company and its Subsidiaries); and provided, further, that
any such redemption shall occur within 60 days of the date of the closing of
each such Public Equity Offering and/or Strategic Equity Investment.
6. Mandatory Redemption. Except as set forth in paragraph 7 below,
the Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. Repurchase at Option of Holder. (a) If there is a Change of
Control, the Company shall be required to make an offer (a "Change of Control
Offer") to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon, if
any, to the date of purchase (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
<PAGE>
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales, when the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall commence an offer to all Holders of Notes (as "Asset Sale Offer")
pursuant to Section 4.03, of the Supplemental Indenture to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes tendered pursuant to
an Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Subsidiary) may use such deficiency for general corporate purposes. If the
aggregate amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
<PAGE>
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes voting as a single class, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes voting as a single class. Without the consent of any Holder of a Note, the
Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes when the same
becomes due and payable, upon redemption (including in connection with an offer
to purchase) or otherwise, (iii) failure by the Company to comply for (A) a
period of 30 days with any of the provisions of Section 5.06 or 5.11 of the
Indenture or (B) 30 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class with any other provisions of Article 5 or
Section 6.01 of the Supplemental Indenture or Sections 4.01, 4.02, 4.07, 4.08,
4.09 or 5.03 of the Original Indenture (in each case, other than a failure to
purchase the Notes); (iv) failure by the Company for 60 days after notice to the
Company by the Trustee or the Holders of at least 25% in principal amount of the
Notes then outstanding voting as a single class to comply with certain other
agreements in the Indenture or the Notes; (v) default under certain other
agreements relating to Indebtedness of the Company which default results in the
acceleration of such Indebtedness prior to its express maturity; (vi) certain
final judgments for the payment of money that remain undischarged for a period
of 60 days and (vii) certain events of bankruptcy or insolvency with respect to
the Company or any of its Restricted Subsidiaries. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding
<PAGE>
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN NET (=
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).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without
<PAGE>
charge a copy of the Indenture. Requests may be made to:
Premier Parks Inc.
11501 Northeast Expressway
Oklahoma City, Oklahoma 73131
Attention: Corporate Secretary
<PAGE>
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:_________________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 5.06 or 5.11 of the Supplemental Indenture, check the box
below:
|_| Section 5.06 |_| Section 5.11
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 5.06 or Section 5.11 of the Supplemental Indenture,
state the amount you elect to have purchased: $__________
Date:
Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No:
Signature Guarantee.
<PAGE>
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE
The following increases or decreases in this Global Note, have been
made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of of Signature of
decrease in increase in this Global Note authorized
Principal Principal Amount following such officer of
Date of Amount of of decrease Trustee or Note
Exchange this Global Note this Global Note (or increase) Custodian
- -------- ---------------- ---------------- ------------- ---------
<S> <C> <C> <C> <C>
</TABLE>
