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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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) OCTOBER 11, 1996
ALL AMERICAN COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 0-14333 95-3803222
(STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
808 WILSHIRE BOULEVARD, SANTA MONICA, CALIFORNIA 90401-1810
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(310) 656-1100
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Item 5. Other Events
All American Communications, Inc. completed a private institutional
placement of $100 million principal amount of its 10-7/8% Senior Subordinated
Notes due 2001 (the "Placement"). Certain documents and a press release (dated
October 11, 1996) related to the Placement are attached hereto as exhibits.
Such exhibits are incorporated herein by reference.
Item 7. Financial Statements and Exhibits
(c) Exhibits
4.3 Purchase Agreement, dated October 4, 1996, by and among All
American Communications, Inc., Goldman, Sachs & Co. and Chase
Securities Inc.
4.4 Registration Rights Agreement, dated as of October 11, 1996, by
and among All American Communications, Inc., Goldman, Sachs &
Co. and Chase Securities Inc.
4.5 Indenture, dated as of October 11, 1996, by and between All
American Communications, Inc. and U.S. Trust Company of
California, N.A. (including Forms of Notes attached thereto as
Exhibits A-1 and A-2).
99 All American Communications, Inc., press release, dated October
11, 1996.
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SIGNATURES
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 hereunto duly authorized.
ALL AMERICAN COMMUNICATIONS, INC.
By /s/ Thomas Bradshaw
----------------------------------
Thomas Bradshaw
Chief Financial Officer and Senior
Executive Vice President
Date: October 22, 1996.
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INDEX TO EXHIBITS
Exhibit Number
Description of Exhibit
4.3 Purchase Agreement, dated October 4, 1996, by and among All American
Communications, Inc., Goldman, Sachs & Co. and Chase Securities Inc.
4.4 Registration Rights Agreement, dated as of October 11, 1996, by and
among All American Communications, Inc., Goldman, Sachs & Co. and Chase
Securities Inc.
4.5 Indenture, dated as of October 11, 1996, by and between All American
Communications, Inc. and U.S. Trust Company of California, N.A.
(including Forms of Notes attached thereto as Exhibits A-1 and A-2).
99 All American Communications, Inc., press release, dated October 11,
1996.
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Exhibit 4.3
ALL AMERICAN COMMUNICATIONS, INC.
10 7/8% SENIOR SUBORDINATED NOTES DUE 2001
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PURCHASE AGREEMENT
October 4, 1996
Goldman, Sachs & Co.
Chase Securities Inc.
c/o Goldman, Sachs & Co.
333 South Grand Avenue
Los Angeles, California 90071
Ladies and Gentlemen:
All American Communications, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "Purchasers")
an aggregate of $100,000,000 principal amount of the 10 7/8% Senior Subordinated
Notes due 2001 specified above (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering circular, dated September 17, 1996 (the
"Preliminary Offering Circular") and an offering circular, dated October 4, 1996
(the "Offering Circular") in each case including the international supplement
thereto have been prepared in
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connection with the offering of the Securities. Any reference to the Preliminary
Offering Circular or the Offering Circular, as the case may be, shall be deemed
to refer to and include, without limitation, the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995 (the "10-K") the amendments
thereto on Form 10-K/A dated April 29, 1996 and June 18, 1996 and Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996, (the "10-Q") and all
subsequent documents filed with the United States Securities and Exchange
Commission (the "Commission") pursuant to Section 13(a), 13(c) or 15(d) of the
United States Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or prior to the date of the Preliminary Offering Circular or the Offering
Circular, as the case may be (the "Exchange Reports"), and any reference to the
Preliminary Offering Circular or the Offering Circular, as the case may be, as
amended or supplemented, as of any specified date, shall be deemed to include
the Exchange Act Reports and any documents filed with the Commission pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act after the date of the
Preliminary Offering Circular, as the case may be, and prior to such specified
date (the "Incorporated Documents"). The Incorporated Documents, when they were
or are filed with the Commission, conformed or will conform in all material
respects to the applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, and included or will include
at the time required to be filed all exhibits thereto (whether by incorporation
by reference or otherwise) and all contracts and documents of a character
required by the Commission to be filed as exhibits to such reports. The
Preliminary Offering Circular and the Offering Circular and any amendments or
supplements thereto and the Incorporated Documents did not and will not, as of
their respective dates, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a Purchaser through Goldman, Sachs & Co.
expressly for use therein;
(b) Neither the Company nor any of All American FDF Holdings, Inc., All
American Television, Inc., All American Television Production, Inc., All
American Entertainment, Inc., All American Fremantle International, Inc., All
American Goodson, Inc., Fremantle (Deutschland) Fernsehproduktions GmbH, The
Baywatch Production Company, The Baywatch Nights Production Company, The Malibu
Branch Production Company, All American Music Group, Fremantle France
Productions SARL, Mark Goodson Productions, LLC (collectively, the "Significant
Subsidiaries") has sustained since the date of the latest audited financial
statements included in the Offering Circular any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Offering
Circular; and, since the respective dates as of which information is given in
the Offering Circular, there has not been any change in the capital stock or
long-term debt of the Company and its subsidiaries, other than those changes set
forth in the accountants letter delivered pursuant to Section 7(f) hereof, or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the
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Company and its subsidiaries, in each case, otherwise than as set forth or
contemplated in the Offering Circular;
(c) The Company and its subsidiaries have good and marketable title in
fee simple to each of the items of real property and good title to each of the
items of personal property which are reflected in the latest audited financial
statements included in the Offering Circular (except as disposed of after the
date of such financial statements in the ordinary course of business) or are
referred to in the Offering Circular as being owned by it and valid and
enforceable leasehold interest in each of the items of real and personal
property which are referred to in the Offering Circular as being leased by it,
in each case free and clear of all liens, encumbrances, claims, security
interests and defects, other than those described in the Offering Circular and
as would not, individually or in the aggregate, result in a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
(d) The Company and each of its subsidiaries have been duly
incorporated or organized, as the case may be, and is validly existing as a
corporation or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or organization, with full
corporate power and authority to own its properties and conduct its business as
described in the Offering Circular and to execute, deliver and perform its
obligations under this Agreement, the Indenture by and between the Company and
the trustee named therein (the "Trustee") under which the Securities will be
issued (the "Indenture"), the Securities, and the Registration Rights Agreement
by and among the Company and the Purchasers, to be dated as of the Time of
Delivery (as defined below) (the "Registration Rights Agreement") (collectively,
the "Operative Documents"), and to consummate the transactions contemplated
hereby and thereby, including, with respect to the Company, without limitation,
the corporate power and authority to issue, sell and deliver the Securities as
provided herein and therein, and that Company and each of its subsidiaries has
been duly qualified as a foreign corporation or limited liability company, as
the case may be, for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
liability or disability by reason of the failure to be so qualified in any such
jurisdiction, except as would not, individually or in the aggregate, result in a
material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(e) As of the date stated therein, the Company has an authorized
capitalization as set forth in the Offering Circular, and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (to the extent such
concepts are applicable with respect to any subsidiary incorporated or organized
in a non-U.S. jurisdiction) and (except for (i) directors' qualifying shares,
(ii) with respect to Fremantle International, Inc., 1% of its outstanding common
stock, (iii) with respect to Fremantle Hellas SA, a Greek corporation, 40% of
its outstanding common stock, (iv) with respect to Fremantle Hellas EPE, a
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Greek corporation, 5% of its outstanding common stock and (v) Fremantle de
Espana, a Spanish corporation, 0.4% of its common stock) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims, other than pursuant to or permitted by the Credit, Security, Guaranty
and Pledge Agreement, dated as of April 13, 1995, by and between the Company,
the guarantors named therein and the lenders named therein (as amended,
including each instrument pursuant to which obligations thereunder are deferred,
extended, renewed, replaced, refunded or refinanced, the "Bank Credit
Agreement"); the Company has no direct or indirect subsidiaries as of the date
hereof except as set forth in the Incorporated Documents, including the exhibits
thereto; and except as set forth in the Offering Circular and the Incorporated
Documents, there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any of its
subsidiaries, other than (i) pursuant to or as contemplated by the Bank Credit
Agreement and (ii) liens incurred in the ordinary course of business;
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement and the Indenture and authenticated by the
Trustee, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium,
receivership, and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and, as to rights of
indemnification, by principles of public policy or federal or state securities
laws relating thereto, and entitled to the benefits provided by the Indenture;
the Indenture has been duly authorized and, when executed and delivered by the
Company and the Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium,
receivership, and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and, as to rights of
indemnification, by principles of public policy or federal or state securities
laws relating thereto; and the Securities and the Indenture will conform to the
descriptions thereof in the Offering Circular and will be in substantially the
form previously delivered to you;
(g) The Registration Rights Agreement in substantially the form
previously delivered to you, has been duly authorized by the Company and, when
duly executed and delivered by the Company and by you will be the valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, receivership, and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and, as to rights of indemnification, by principles of public policy
or federal or state securities laws relating thereto; pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Commission, under the circumstances set forth therein, (i) the registration
statement under the United States Securities Act of 1933, as amended (the
"Securities Act"), as provided in Section 5(l) hereof, relating to another
series of debt securities of the Company with terms identical to the Securities
(the "Exchange Securities") to be offered in exchange for the Securities (the
"Exchange Offer"), and (ii) to the extent required by the Registration Rights
Agreement, a
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shelf registration statement pursuant to Rule 415 under the Securities Act
relating to the resale by certain holders of the Securities, and to use its best
efforts to cause such Registration Statements to be declared effective; the
Exchange Securities have been duly and validly authorized for issuance by the
Company, and when issued and authenticated in accordance with the terms of the
Indenture, the Registration Rights Agreement and the Exchange Offer, the
Exchange Securities will be the valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium, receivership, and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles and, as to rights of indemnification, by principles of
public policy or federal or state securities laws relating thereto;
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and legally binding agreement
of the Company;
(i) None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Securities)
will violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System;
(j) Prior to the date hereof, none of the Company or any of its
subsidiaries or any of their respective officers and directors or, to the best
knowledge of the Company, any person acting on its on or their behalf, has taken
any action which is designed to or which has constituted or which might have
been expected to cause or result in stabilization or manipulation of the price
of any security of the Company in connection with the offering of the
Securities;
(k) The issue and sale of the Securities, the issue of the Exchange
Securities in the Exchange Offer, and the compliance by the Company with all of
the provisions of the Securities, the Exchange Securities, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under (or an event that with notice or the lapse of time, or both, would
constitute a default under), or require a consent under, or result in the
imposition or creation of (or the obligation to create or impose) a lien or an
acceleration of indebtedness pursuant to, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the certificate of incorporation or bylaws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Securities, the issue of the Exchange Securities in the Exchange
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Offer, or the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture, the Securities, the Exchange Securities and the
Registration Rights Agreement, except for the filing of a registration statement
by the Company with the Commission pursuant to the Securities Act pursuant to
Section 5(l) hereof, the filing of a notice on Form D by the Company with the
Commission pursuant to Section 5(h) hereof, such consents, approvals,
authorizations, registrations or qualifications as may be required under state
or foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Purchasers and the issue of the Exchange
Securities in the Exchange Offer and, in connection with the Exchange Offer,
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended;
(l) Neither the Company nor any of its subsidiaries is (i) in any
violation of the provisions of its certificate of incorporation or bylaws or, in
the case of a limited liability company, its operating agreement or any other
organizational document; (ii) in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties or assets may be bound or
to which any of the property or assets of the Company or any of its subsidiaries
is subject; or (iii) is in violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or their respective properties or assets,
except as would not with respect to the matters identified in clauses (ii) and
(iii) of this paragraph, individually or in the aggregate, result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole,
and there exists no condition that, with notice or the lapse of time, or both,
would constitute any such default under any such document or instrument, except
as would not, individually or in the aggregate, result in a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
(m) The statements set forth in the Offering Circular under the caption
"Description of Notes," insofar as they purport to constitute a summary of the
terms of the Securities, under the captions "Notice to Investors," "Certain
United States Federal Tax Considerations for Non-United States Holders" and
"Offer and Resale," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate and fair in all material
respects;
(n) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which have a reasonable likelihood of being
determined adversely to the Company or any of its subsidiaries, and which, if so
determined, would individually or in the aggregate have a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole,
would interfere with or adversely affect the issuance and sale of the
Securities, the issue of the Exchange Securities and consummation of the
Exchange Offer or would affect the validity of any Operative Document, and, to
the best of the
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Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(o) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning of
Rule 144A under the Securities Act) as securities of the Company which are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system;
(p) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(q) The Company is not, and after giving effect to the offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the United
States Investment Company Act of 1940, as amended (the "Investment Company
Act");
(r) Neither the Company, its subsidiaries, their respective officers
and directors, nor, to the best knowledge of the Company, any other person
acting on its or their behalf other than the Purchasers, has offered or sold the
Securities by means of any general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act or, with respect to
Securities sold outside the United States to non-U.S. persons (as defined in
Rule 902 under the Securities Act), by means of any directed selling efforts
within the meaning of Rule 902 under the Securities Act ("Regulation S") and the
Company, any affiliate of the Company and any person acting on its or their
behalf has complied with and will implement the "offering restriction" within
the meaning of Regulation S;
(s) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person any
Securities, or any securities of the same or a similar class as the Securities,
other than Securities offered or sold to the Purchasers hereunder. The Company
will take reasonable precautions designed to insure that any offer or sale,
direct or indirect, in the United States or to any U.S. person (as defined in
Rule 902 under the Securities Act) of any Securities or any substantially
similar security issued by the Company, within six months subsequent to the date
on which the distribution of the Securities has been completed (as notified to
the Company by Goldman, Sachs & Co.), is made under restrictions and other
circumstances reasonably designed not to affect the status of the offer and sale
of the Securities in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of the
Securities Act;
(t) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(u) Ernst & Young LLP and Price Waterhouse, LLP, each of whom have
certified certain financial statements and/or certain financial data of the
Company and its subsidiaries, are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission thereunder.
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(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect thereto;
(w) To the best of knowledge of the Company, neither the Company nor
any of its subsidiaries has violated any environmental, safety or similar law or
regulation applicable to its business or property relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), lacks any permits,
licenses or other approvals required of them under applicable Environmental Laws
or is violating any term or condition of any such permit, license or approval,
except as would not, individually or in the aggregate, result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole;
(x) Except as would not, individually or in the aggregate, have a
material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, (i) the Company and each of its subsidiaries has
all certificates, consents, exemptions, orders, permits, licenses,
authorizations, or other approvals (each, an "Authorization") of and from, and
has made all declarations and filings with, all Federal, state, foreign, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary or required to engage in its business
currently conducted by it in the manner described in the Offering Circular, (ii)
all such Authorizations are valid and in full force and effect and (iii) the
Company and each of its subsidiaries are in compliance in all material respects
with the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto;
(y) The Company and each of its subsidiaries owns or possesses or has
the enforceable right to use the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, performing rights and literary,
dramatic, musical, artistic, personal, private or contract rights (collectively,
the "Intellectual Property") presently employed by them in connection with, and
material, individually or in the aggregate, to the operation of the businesses
now operated by them and as described in the Offering Circular, and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to the foregoing which
has a reasonable likelihood of resulting in an unfavorable decision, ruling or
finding, which, individually or in the aggregate, would result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole.
To the best knowledge of the Company, the use of such
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Intellectual Property in connection with the business and operations of the
Company and its subsidiaries does not infringe on the rights of any person,
except as would not, individually or in the aggregate, result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole;
(z) The Company and each of its subsidiaries maintains insurance
covering its respective properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are adequate in accordance
with customary industry practice to protect the Company and its subsidiaries and
their businesses. Neither the Company nor its subsidiaries has received notice
from any insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force on the Time of Delivery (as defined);
(aa) Except as described in the Offering Circular and the Incorporated
Documents, there are no holders of securities of the Company who, by reason of
the execution by the Company of this Agreement or any other Operative Document
or the consummation of the transactions contemplated hereby and thereby, have
the right to request or demand the Company register under the Securities Act or
analogous foreign laws and regulations securities held by them (other than
pursuant to (1) the Registration Rights Agreement, (2) the Registration Rights
Agreement dated August 3, 1994 by and between the Company and The Interpublic
Group of Companies, Inc., (3) the Shareholders Agreement dated February 25, 1991
among the Company and the other parties thereto, and (4) the Registration Rights
Agreement dated February 8, 1993 by and between the Company and The Bank of New
York);
(bb) To the best knowledge of the Company, on the date hereof and upon
the issuance of the Securities, the present fair saleable value of the assets of
the Company and its subsidiaries, taken as a whole, exceeds or will exceed the
amount that will be required to be paid on or in respect of the existing debts
and other liabilities (including the maximum amount of liability that may
reasonably be expected to result from contingent liabilities) of the Company and
its subsidiaries as they become absolute and matured and the assets of the
Company and its subsidiaries, taken as a whole, do not and will not constitute
unreasonably small capital to carry out their business as conducted or as
proposed to be conducted. The Company does not intend to, or believe that it
will, incur debts beyond its ability to pay such debts as they mature. The
Company does not intend to permit any of its subsidiaries to incur debts beyond
their respective ability to pay such debts as they mature (other than with
respect to the guarantees by any such subsidiaries of the Company's obligation
under the Bank Credit Agreement);
(cc) Each certificate signed by any officer of the Company and
delivered to the Purchasers or counsel for the Purchasers shall be deemed to be
a representation and warranty by the Company to each Purchaser as to the matters
covered thereby;
(dd) The sale of the Securities in offshore transactions pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Securities Act.
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The Company acknowledges that the Purchasers and, for purposes of the
opinions to be delivered to the Purchasers pursuant to Section 7 hereof, counsel
to the Company and counsel to the Purchasers will rely upon the accuracy and
truth of the foregoing representations and the Company hereby consents to such
reliance.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.0% of the principal amount thereof, plus accrued interest, if any,
from October 11, 1996 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular. Each Purchaser
hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A, (ii) institutions which it reasonably believes are
"accredited investors" ("Institutional Accredited Investors") within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act or, (iii) upon the
terms and conditions set forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor;
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the methods
described in Rule 502(c) under the Securities Act;
(d) The sale of Securities in offshore transactions pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Securities Act; and
(e) Such Purchaser also understands that the Company and, for purposes
of the opinions to be delivered to you pursuant to Section 7 hereof, counsel to
the Company and counsel to such Purchasers will rely upon the accuracy and truth
of the foregoing representations and hereby consents to such reliance.
Terms used in this Section 3 that have meanings assigned to them in Regulation S
are used herein as so defined.
4. (a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian; provided, however, that such
Securities, if any, as Goldman, Sachs & Co. may request upon at least
forty-eight hours' prior to notice to the Company (such request to include the
authorized denominations and the names in which they are to be registered),
shall be
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delivered in definitive certificated form. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each Purchaser, against
payment by or on behalf of such Purchaser of the purchase price therefor by wire
transfer of immediately available funds to the account of the Company, by
causing DTC to credit the Securities to the account of Goldman, Sachs & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to Goldman, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"), or in the case of Securities in
definitive certificated form, at the offices of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on October __ , 1996 or such other time
and date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such
time and date are herein called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents reasonably
requested by the Purchasers pursuant to Section 7(k) hereof, will be delivered
at such time and date at the offices of Latham & Watkins, 633 West Fifth Street,
Suite 4000, Los Angeles, California 90071 (the "Closing Location"), and the
Securities will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 6:00 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make
no amendment or any supplement to the Offering Circular which shall be
reasonably disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Purchasers with five copies of the Offering Circular
and each amendment or supplement thereto with copies of the independent
accountants' report(s) in the Offering Circular, and copies of any amendment or
supplement containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional copies thereof in such
quantities as you may from time to time reasonably request, and if, at any
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<PAGE> 12
time prior to the earlier of (i) consummation of the Exchange Offer and (ii)
expiration of nine months after the date of the Offering Circular, any event
shall have occurred as a result of which the Offering Circular as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Offering
Circular is delivered, not misleading, or, if it shall be necessary or desirable
during such same period to amend or supplement the Offering Circular, to notify
you and upon your request to prepare and furnish without charge to each
Purchaser as many copies as you may from time to time reasonably request of an
amended Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing
until the date six months after the Time of Delivery, not to offer, sell
contract to sell or otherwise dispose of, except as provided hereunder any
securities of the Company that are substantially similar to the Securities
(except as contemplated by the Registration Rights Agreement and the Exchange
Offer), including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Securities or any such
substantially similar securities without the prior written consent of Goldman,
Sachs & Co., which consent shall not be unreasonably withheld;
(e) Not to be or become, at any time prior to the expiration of the
earlier of (i) three years after the Time of Delivery or (ii) the date on which
none of the Securities are Transfer Restricted Securities (as defined below), an
open-end investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act. For the purposes of
this Section 5(e), "Transfer Restricted Subsidiaries" shall mean each Note,
until the earliest to occur of (a) the date on which such Note is exchanged in
the Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Securities
Act, (b) the date on which such Note has been disposed of in accordance with a
shelf registration statement pursuant to the Registration Rights Agreement, (c)
the date on which such Note is disposed of by a broker-dealer pursuant to the
"Plan of Distribution" contemplated by the exchange offer registration statement
(including delivery of the prospectus contained therein) pursuant to the
Registration Rights Agreement or (d) the date on which such Note is distributed
to the public pursuant to Rule 144 under the Securities Act;
(f) As long as the Securities are outstanding, at any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, for the
benefit of holders from time to time of Securities, to furnish at its expense,
upon request, to holders of Securities and prospective purchasers of securities
information (the "Additional Issuer Information") satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act;
(g) If requested by you, to use its best efforts to cause such
Designated Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
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(h) To file with the Commission, not later than 15 days after the Time
of Delivery, five copies of a notice on Form D under the Securities Act (one of
which will be manually signed by a person duly authorized by the Company); to
otherwise comply with the requirements of Rule 503 under the Securities Act; and
to furnish promptly to you evidence of each such required timely filing
(including a copy thereof);
(i) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date of the
Offering Circular), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail (which may be in the
form of an annual report on form 10-K or a quarterly report on form 10-Q as
prescribed by the SEC);
(j) During a period of five years from the date of the Offering
Circular, to furnish to you copies of all reports or other communications
(financial or other) furnished to stockholders of the Company, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed (on a non-confidential basis) with the
Commission or any securities exchange on which the Securities, or any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(k) During the period of three years after the Time of Delivery, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 under the Securities Act that
have been reacquired by any of them, without the prior written consent of
Goldman, Sachs & Co., which consent shall not be unreasonably withheld;
(l) Pursuant to the Registration Rights Agreement, the Company shall
file and use its best efforts to cause to be declared or become effective under
the Securities Act (i) on or prior to 120 days after the Time of Delivery, a
registration statement on Form S-4 providing for the registration of the
Exchange Securities, and the exchange of the Securities for the Exchange
Securities, all in a manner which will permit persons who acquire the Exchange
Securities to resell the Exchange Securities pursuant to Section 4(1) of the
Securities Act and (ii) at the time and to the extent required by the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Securities Act relating to the resale by certain holders of the
Securities;
(m) To comply with all agreements set forth in the representation
letter of the Company to DTC relating to the approval of the Securities by DTC
for "book-entry" transfer;
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<PAGE> 14
(n) To advise the Purchasers promptly and, if requested by any of the
Purchasers, confirm such advice in writing of the issuance by any state or
foreign securities commission of any stop order suspending the qualification or
exemption of the Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by the Commission or any state or
foreign securities commission or other regulatory authority, and to use its best
efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Securities under any state or foreign
securities or Blue Sky laws, and if, at any time, any state or foreign
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption of the Securities under any state or
foreign securities or Blue Sky laws, to use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(o) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Offering
Circular under the caption "Use of Proceeds"; and
(p) Upon original issuance thereof by the Company, and until such time
as the same is no longer required under the applicable requirements of the
Securities Act, the Securities (and all securities issued in exchange therefor
or in substitution thereof) shall bear the legend set forth in the Offering
Circular under the caption "Notice to Investors."
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation, printing and filing of the Preliminary Offering Circular and the
Offering Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing this Agreement, the Indenture, the Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state and foreign securities laws as
provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Purchasers in connection with such qualification and in
connection with the Blue Sky and legal investment surveys (not to exceed
$15,000); (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses
of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;
(vii) any cost incurred in connection with the designation of the Securities for
trading in PORTAL; (viii) all fees and expenses payable to DTC in connection
with approval of the Securities by DTC for "book-entry" transfer; and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as expressly provided in this Section, and
Sections 8 and 10 hereof, the Purchasers will pay all of their own costs and
expenses, including the fees of their counsel (other than as set forth in clause
(iii) above), transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
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<PAGE> 15
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties of the
Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Latham & Watkins, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to
such matters as you may reasonably request, and Latham & Watkins shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(b) Kaye, Scholer, Fierman, Hays & Handler, LLP, counsel for the
Company, shall have furnished to you their written opinion, dated the Time of
Delivery, in the form of Annex II hereto;
(c) Paul A. Pavlis, General Counsel of the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in the form
of Annex III hereto;
(d) Foreign counsel, for each of the Company's Significant Subsidiaries
the Company, shall have furnished to you their written opinion, dated the Time
of Delivery, in the form of Annex IV hereto;
(e) On the date of the Offering Circular prior to the execution of this
Agreement, Ernst & Young, LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex V hereto;
(f) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Price Waterhouse, LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form or substance satisfactory to you, to the effect set forth in
Annex VI hereto;
(g) On the date of the Offering Circular prior to the execution of this
Agreement, Coopers & Lybrand, LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form or substance
satisfactory to you, to the effect set forth in Annex VII hereto;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
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in the Offering Circular, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Purchasers so material and adverse
as to make it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated in this
Agreement and in the Offering Circular;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York or California State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Purchasers makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities on
the terms and in the manner contemplated in the Offering Circular;
(j) The Securities have been designated for trading on PORTAL;
(k) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsection (h) of this Section and as
to such other matters as you may reasonably request;
(l) No stop order suspending the qualification or exemption from
qualification of any of the Securities in any jurisdiction referred to in
Section 5(b) shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened;
(m) No action shall have been taken and no statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or their respective properties or
assets which would, as of the Time of Delivery, prevent the issuance of any of
the Securities, the Exchange Securities or consummation of the Exchange Offer;
and no injunction, restraining order or order of any nature by a Federal or
state court of competent jurisdiction shall have been issued as of the Time of
Delivery which would prevent the issuance of the Securities, the Exchange
Securities or consummation of the Exchange Offer. No action, suit or proceeding
shall be pending against or affecting or, to the best of the Company's
knowledge, threatened against the Company or any of its subsidiaries before any
court or arbitrator or any governmental body, agency or official has a
reasonable likelihood of being determined adversely to the Company or any of its
subsidiaries, which, if so determined, would prohibit, interfere with or
adversely affect the issuance or sale of the Securities or would have a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole,
or in any manner draw into question the validity of this Agreement or the other
Operative
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Documents; and no stop order preventing the use of the Offering Circular, or any
amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act shall have been issued;
(n) The Company shall have entered into the Registration Rights
Agreement and you shall have received executed counterparts thereof;
(o) The Company and the Trustee shall have entered into the Indenture
and you shall have received executed counterparts thereof; and
(p) The Company shall have received a consent and/or waiver from the
requisite lenders under the Bank Credit Agreement, reasonably satisfactory to
the Purchasers, to the effect that the issuance and sale of the Securities and
the Exchange Securities and the use of proceeds contemplated hereby will not
result in a "default," or an event which with notice or passage of time or both
would result in an "event of default" (as each such term is used in the Bank
Credit Agreement) under the Bank Credit Agreement in effect as of the Time of
Delivery.
All opinions, certificates, letters and other documents required to be
delivered by the Company will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to the Purchasers or
in conformity herewith. The Company will furnish the Purchasers with such
conformed copies of such opinions, certificates, letters and other documents as
the Purchasers shall reasonably request.
8. (a) The Company will indemnify and hold harmless each Purchaser against
any losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Offering Circular or the
Offering Circular, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Offering Circular or the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Offering Circular or the Offering Circular, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged
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omission to state therein a material fact or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular or the Offering Circular
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Purchaser through Goldman,
Sachs & Co. expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Purchasers on
the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the
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<PAGE> 19
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Purchasers, in each case as set forth in the
Offering Circular. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Purchasers on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price received by such Purchaser with respect to the sale of the
Securities exceeds the amount paid by such Purchaser for such Securities. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act; and the obligations of the
Purchasers under this Section 8 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Securities Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other
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documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Offering Circular which in your opinion may thereby be made
necessary. The term "Purchaser" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-tenth of the aggregate
principal amount of all the Securities, then the Company shall have the right to
require each non-defaulting Purchaser to purchase the principal amount of
Securities which such Purchaser agreed to purchase hereunder and, in addition,
to require each non-defaulting Purchaser to purchase its pro rata share (based
on the principal amount of Securities which such Purchaser agreed to purchase
hereunder) of the Securities of such defaulting Purchaser or Purchasers for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-tenth of the aggregate principal amount of
all the Securities, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Purchasers to purchase Securities
of a defaulting Purchaser or Purchasers, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Purchaser or the
Company, except for the expenses to be borne by the Company and the Purchasers
as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Purchaser from
liability for its default.
(d) The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
10. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities (except that in the case of a
termination by the Purchasers pursuant to Section 7(i) hereof such expenses
shall not exceed $250,000), but the Company shall then be under no further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
20
<PAGE> 21
11. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at in care of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: Secretary; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
13. Time shall be of the essence of this Agreement.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
21
<PAGE> 22
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Purchasers plus one for each
counsel counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Purchasers, this letter and such acceptance hereof shall constitute
a binding agreement between each of the Purchasers and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement Among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
All American Communications, Inc.
By: /s/ Thomas Bradshaw
------------------------------
Name: Thomas Bradshaw
Title: Chief Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Chase Securities Inc.
By Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
-----------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
<PAGE> 23
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
SECURITIES TO
PURCHASER BE PURCHASED
- --------- -------------
<S> <C>
Goldman, Sachs & Co. ................................ $ 75,000,000
Chase Securities Inc. ............................... 25,000,000
------------
Total ............................................... $100,000,000
============
</TABLE>
<PAGE> 24
SCHEDULE II
List of Exhibits
Annex I - Terms and Conditions of Sales under Regulation S under the
Securities Act.
Annex II - Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP Referred
to in Section 7(b).
Annex III - Opinion of Paul A. Pavlis Referred to in Section 7(c).
Annex IV - Opinion of Foreign Counsel Referred to in Section 7(d).
Annex V - Form of Letter of Ernst & Young LLP.
Annex VI - Form of Letter of Price Waterhouse LLP.
Annex VII - Form of Letter of Coopers & Lybrand, LLP.
<PAGE> 1
Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of October 11, 1996
by and among
All American Communications, Inc.
and
Goldman, Sachs & Co.
Chase Securities Inc.
<PAGE> 2
This Registration Rights Agreement (this "Agreement") is made and
entered into as of October 11, 1996, by and among All American Communications,
Inc., a Delaware corporation (the "Company"), and Goldman, Sachs & Co. and Chase
Securities Inc. (each an "Initial Purchaser" and, collectively, the "Initial
Purchasers"), each of whom has agreed to purchase the Company's 10 7/8% Senior
Subordinated Notes due 2001 (the "Series A Senior Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
October 4, 1996, (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Series A Notes, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 3 of
the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Broker-Dealer Transfer Restricted Securities: Series B Notes that are
acquired by a Broker-Dealer in the Exchange Offer in exchange for Series A Notes
that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Notes
acquired directly from the Company or any of its affiliates).
Certificated Securities: As defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes tendered by
Holders thereof pursuant to the Exchange Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
1
<PAGE> 3
Exchange Offer: The registration by the Company under the Act of the
Series B Notes pursuant to the Exchange Offer Registration Statement pursuant to
which the Company shall offer the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding Transfer Restricted
Securities for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act, to certain "accredited
investors," as such term is defined in Rule 501(a)(1), (2), (3), and (7) of
Regulation D under the Act and to certain persons outside of the United States
in reliance on Regulation S under the Act.
Global Noteholder: As defined in the Indenture.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated the Closing Date, between the Company
and U.S. Trust Company of California, N.A., as trustee (the "Trustee"), pursuant
to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, limited liability company,
corporation, trust, unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Special Interest Payment Date, each
Person who is a Holder of Notes on the record date with respect to the Interest
Payment Date on which such Special Interest Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) which is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and
2
<PAGE> 4
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
Transfer Restricted Securities.
Series B Notes: The Company's 10 7/8% Series B Senior Subordinated
Notes due 2001 to be issued pursuant to the Indenture (i) in the Exchange Offer
or (ii) upon the request of any Holder of Series A Notes covered by a Shelf
Registration Statement, in exchange for such Series A Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
Special Interest: The special interest payable in respect of the Series
A Notes pursuant to Section 5 hereof.
Special Interest Payment Date: With respect to the Series A Notes, each
Interest Payment Date.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to occur
of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) the date on which such Note
has been disposed of in accordance with a Shelf Registration Statement, (c) the
date on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan
of Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) cause to be filed with the Commission as
soon as practicable after the Closing Date, but in no event later than 30 days
after the Closing Date, the Exchange Offer Registration Statement, (ii) use its
best efforts (which as used in this Agreement shall not require commercially
unreasonable efforts) to cause such Exchange Offer Registration Statement to
become effective at the earliest possible time, but in no event later than 120
days after the Closing Date, (iii) in connection with the foregoing, (A) file
all pre-effective amendments to such Exchange Offer Registration Statement as
may be necessary in order to cause such Exchange Offer Registration Statement to
become effective, (B) file, if applicable, a post-effective amendment to such
3
<PAGE> 5
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer,
provided, that the Company shall not be required in connection therewith to
register or qualify as a foreign corporation in any such jurisdiction, and (iv)
upon the effectiveness of such Exchange Offer Registration Statement, commence
and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Series A Notes that are Transfer Restricted Securities and to
permit sales of Broker-Dealer Transfer Restricted Securities by Restricted
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Notes shall be
included in the Exchange Offer Registration Statement. The Company shall use its
best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 120 days after the Closing Date.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Series A Notes that are
Transfer Restricted Securities and that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Series A Notes (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company)
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of each Series B Note received by such Broker-Dealer in the Exchange Offer,
which prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers that the Commission may require in order
to permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer, except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers, and to ensure that such Registration
Statement conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of one year from the date on which the Exchange Offer is
Consummated.
The Company shall promptly provide sufficient copies of the latest
version of such Prospectus to such Restricted Broker-Dealers promptly upon
request, and in no event later than one day after such request, at any time
during such one-year period in order to facilitate such sales.
4
<PAGE> 6
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Series B Notes because
the Exchange Offer is not permitted by applicable law (after the procedures set
forth in Section 6(a)(i) below have been complied with) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Company within 20 Business Days
following the Consummation of the Exchange Offer that (A) such Holder, or
together with such other Holders who hold in the aggregate at least $1.0 million
principal amount of Transfer Restricted Securities, was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Series B Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Series A
Notes acquired directly from the Company or one of its affiliates, then the
Company shall (x) cause to be filed on or prior to 30 days after the date on
which the Company determines that it is not required to file the Exchange Offer
Registration Statement pursuant to clause (i) above or 30 days after the date on
which the Company receives the notice specified in clause (ii) above a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement")), relating to all Transfer Restricted Securities
the Holders of which shall have provided the information required pursuant to
Section 4(b) hereof, and shall (y) use their respective best efforts to cause
such Shelf Registration Statement to become effective on or prior to 90 days
after the date on which the Company becomes obligated to file such Shelf
Registration Statement. If, after the Company has filed an Exchange Offer
Registration Statement which satisfies the requirements of Section 3(a) above,
the Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer shall not be permitted under
applicable federal law, then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above. Such
an event shall have no effect on the requirements of clause (y) above. The
Company shall use its best efforts to keep the Shelf Registration Statement
discussed in this Section 4(a) continuously effective, supplemented and amended
as required by and subject to the provisions of Sections 6(b) and (c) hereof to
the extent necessary to ensure that it is available for sales of Transfer
Restricted Securities by the Holders thereof entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least (1) in the case of a Shelf
Registration Statement required to be filed pursuant to clauses (i), (ii)(A) or
(ii)(B) of this paragraph, three years (as extended pursuant to Section 6(c)(i))
following the date on which such Shelf Registration Statement first becomes
effective under the Act (or such shorter period of time after which the Transfer
Restricted Securities may be sold pursuant to Rule 144(k) under the Act, or such
successor provision) or (2) in the case of a Shelf Registration Statement
required to be filed solely pursuant to clause (ii)(C) of this paragraph, one
year (as extended pursuant to Section 6(c)(i)) following the date on which such
Shelf Registration Statement first becomes effective under the Act.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information specified in item 507 of Regulation S-K under the Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Special Interest pursuant to Section 5 hereof unless and until
such Holder shall have provided all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information
5
<PAGE> 7
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
5. SPECIAL INTEREST
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has not been
Consummated within 30 days after the date the Exchange Offer Registration
Statement first becomes effective or (iv) any Registration Statement required by
this Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is declared effective within five Business Days
following the date that such Registration Statement ceased to be effective or
failed to be usable for its intended purpose (each such event referred to in
clauses (i) through (iv), a "Registration Default"), Special Interest will
accrue and be payable on the Transfer Restricted Securities at the rate of .50%
per annum from and including the date on which any such Registration Default
shall have occurred to but excluding the date on which all Registration Defaults
have been cured. If the Company has not consummated the Exchange Offer within
240 days after the Closing Date (or, if applicable, the Shelf Registration
Statement has not become effective within 210 days following the Shelf Filing
Deadline), the Special Interest will be increased by an additional .50% per
annum and Special Interest will be payable at such increased rate from and
including such date to but excluding the date on which the Company consummates
the Exchange Offer or the Shelf Registration Statement becomes effective.
Special Interest shall be computed on the same basis as on the Notes (i.e., on
the basis of a 360-day year of twelve 30-day months). Notwithstanding anything
to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of each of (ii) above and the second sentence of this
paragraph, (3) upon Consummation of the Exchange Offer, in the case of each of
(iii) above and the second sentence of this paragraph, or (4) upon the filing of
a post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the Special Interest payable
with respect to the Transfer Restricted Securities as a result of such clause
(i), (ii), (iii), (iv) or the second sentence of this paragraph, as applicable,
shall cease.
All accrued Special Interest shall be paid to the Global Note Holder on
each Special Interest Payment Date in the manner set forth in the Indenture and
the Notes for the payment of interest. All obligations of the Company set forth
in the preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to
such security shall have been satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its best efforts to effect such exchange and to
permit the sale of Broker-Dealer Transfer Restricted Securities being sold in
6
<PAGE> 8
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, such that in the reasonable opinion of counsel to the Company there
is a substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Series A Notes. The Company hereby
agrees to pursue the issuance of such a decision to the Commission staff
level. In connection with the foregoing, the Company hereby agrees to take
all such other actions as are requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursuing a resolution (which need not be favorable) by
the Commission staff of such submission;
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in its ordinary
course of business. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate
in a distribution of the securities to be acquired in the Exchange Offer
(1) could not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter obtained pursuant
to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Series B Notes obtained by such Holder
in exchange for Series A Notes acquired by such Holder directly from the
Company or an affiliate thereof; and
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that the
Company has not entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in the Exchange
Offer and that, to the best of the Company's information and belief, each
Holder participating in the Exchange Offer is acquiring the Series B Notes
in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C)
7
<PAGE> 9
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Exchange Offer Registration Statement and the related Prospectus, to the extent
that the same are required to be available to permit sales of Broker-Dealer
Transfer Restricted Securities by Restricted Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case of
clause (A), correcting any such misstatement or omission, and (2) in the
case of clauses (A) and (B), use their respective best efforts to cause
such amendment to be declared effective and such Registration Statement
and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, or such shorter
period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act
in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted
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<PAGE> 10
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of any fact
or the happening of any event that makes any statement of a material fact made
in the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration Statement
in order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company shall
use its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to the Initial Purchaser(s), each selling Holder named
in any Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with such sale, if any,
for a period of at least five Business Days, and the Company will not file any
such Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the selling Holders of the Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s) in connection with such sale, if any, shall reasonably object
within five Business Days after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Act;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, provide
copies of such document to the selling Holders and to the underwriter(s) in
connection with such sale, if any, make the Company's representatives available
for discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the selling
Holders, any managing underwriter participating in any disposition pursuant to
such Registration Statement and any attorney or accountant retained by such
selling Holders or any of such underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect
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<PAGE> 11
to the principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters to
be included in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in connection with
the offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(x) enter into such customary agreements (including an underwriting
agreement) and make such representations and warranties and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement as may be reasonably requested by any
Holder of Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Registration Statement contemplated by this
Agreement, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten
Registration, the Company shall:
(A) furnish (or in the case of paragraphs (2) and (3), use its best
efforts to furnish) to each selling Holder and each underwriter, if any,
upon the effectiveness of the Shelf Registration Statement and to each
Restricted Broker-Dealer upon Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, signed on behalf of the Company by (x)
the President or any Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of the date thereof,
the matters set forth in paragraphs (f), (g) and (i) through (l) of
Section 7 of the Purchase Agreement and such other similar matters as
the Holders, underwriter(s) and/or Restricted Broker Dealers may
reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for the Company covering matters similar
to those set forth in paragraph (b) of Section 7 of the Purchase
Agreement and such other matter as the Holders, underwriters and/or
Restricted Broker Dealers may reasonably request, and in any event
including a statement to the effect that such counsel has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company
and have considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or
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<PAGE> 12
fairness of such statements; and that such counsel advises that, on the
basis of the foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that caused
such counsel to believe that the applicable Registration Statement, at
the time such Registration Statement or any post-effective amendment
thereto became effective and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation of the Exchange
Offer, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of the Exchange
Offer, as of the date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and
schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be, from the
Company's independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters delivered
pursuant to Section 7 of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Shelf Registration Statement the indemnification provisions
and procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders, the underwriter(s), if any,
and Restricted Broker Dealers, if any, to evidence compliance with clause
(A) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company pursuant to this
clause (x);
The above shall be done at each closing under such underwriting or similar
agreement, as and to the extent required thereunder, and if at any time the
representations and warranties of the Company contemplated in clause (A)(1)
above cease to be true and correct, the Company shall so advise the
underwriter(s), if any, the selling Holders and each Restricted Broker-Dealer
promptly and if requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may request and
do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered
by the applicable Registration Statement; provided, however,
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<PAGE> 13
that the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) issue, upon the request of any Holder of Series A Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
Series B Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Series B Notes to be
registered in the name of such Holder or in the name of the purchaser(s) of such
Notes, as the case may be; in return, the Series A Notes held by such Holder
shall be surrendered to the Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to such
sale of Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities which
are in a form eligible for deposit with The Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
its best efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
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<PAGE> 14
(xviii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use its best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder each document filed with
the Commission pursuant to the requirements of Section 13 or Section 15(d)
of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (the "Advice"). If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of either such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(c)(i)
or Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof
or shall have received the Advice.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Series B Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and, in accordance with Section 7(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Notes on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and (vi)
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<PAGE> 15
all fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(a) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Purchasers and the Holders of Transfer Restricted Securities being tendered in
the Exchange Offer and/or resold pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or registered pursuant to
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person, including
the Initial Purchasers in connection with any resale of Notes included in a
Registration Statement (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder"), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company in writing (provided,
that the failure to give such notice shall not relieve the Company of its
obligations pursuant to this Agreement, except to the extent that it is
materially prejudiced by such failure). The Company will be entitled to
participate in any such action and, to the extent it so elects, to assume the
defense thereof with counsel reasonably satisfactory to the Indemnified Holder.
Notwithstanding the foregoing, the Indemnified Holder shall have the right to
employ its or their own counsel in any such case (regardless of whether it is
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<PAGE> 16
ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder), but the fees and expenses of such counsel shall be
at the expense of such Indemnified Holder unless (i) the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such action, (ii) the Company shall not have employed counsel to
take charge of the defense of such action within a reasonable time after notice
of commencement of the action or (iii) such Indemnified Holder shall have
reasonably concluded, upon the advice of counsel, that there may be defenses
available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
direct the defense of such action on behalf of the Indemnified Holder), in any
of which events such reasonable fees and expenses of counsel shall be borne by
the Company, provided, however, that the Company shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders. The Company shall be liable for any settlement of any
such action or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company agrees to
indemnify and hold harmless each Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The Company shall not, without
the prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors,
officers, and any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company, and the respective officers,
directors, partners, employees, representatives and agents of each such person,
to the same extent as the foregoing indemnity from the Company to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Company, and the Company, such directors or officers or
such controlling person shall have the rights and duties given to each Holder by
the preceding paragraph. In no event shall any Holder be liable or responsible
for any amount in excess of the amount by which the total received by such
Holder with respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Holders, on the other hand, from their sale of
Transfer Restricted Securities or if such
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<PAGE> 17
allocation is not permitted by applicable law, the relative fault of the
Company, on the one hand, and of the Indemnified Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Indemnified Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Indemnified Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no Holder or
its related Indemnified Holders shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities plus (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(c) are several in proportion to the respective
principal amount of Series A Notes held by each of the Holders hereunder and not
joint.
9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Securities Exchange Act, to
make available, upon request of any Holder of Transfer Restricted Securities, to
any Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (i) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (ii) completes and executes all
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<PAGE> 18
reasonable questionnaires, powers of attorney, and other documents required
under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company. Such investment bankers and managers are
referred to herein as the "underwriters."
12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by them of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person other than (i) the Registration Rights Agreement, dated
February 8, 1993, by and between the Company and Bank of New York pursuant to
which the Company has agreed to register 250,000 shares of the Company's Common
Stock, (ii) the Registration Rights Agreement, dated August 3, 1994, by and
between the Company and The Interpublic Group of Companies, Inc. pursuant to
which the Company has agreed to register 630,000 shares of the Company's Class A
Common Stock and 2,250,200 shares of the Company's Class B Common Stock and
(iii) the Shareholders Agreement, dated February 25, 1991 (as amended), by and
between the Company and the other parties thereto. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will not take any
action, or voluntarily permit any change to occur, with respect to the Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may
17
<PAGE> 19
be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
All American Communications, Inc.
808 Wilshire Boulevard
Santa Monica, CA 90401
Telecopier No.: (310)656-7400
Attention: Mr. Thomas Bradshaw, Chief Financial Officer
With a copy to:
Kaye, Scholer, Fierman, Hays & Handler, LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Telecopier No.: (310) 788-1200
Attention: Barry Dastin, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
Business Days after being deposited in the mail, postage prepaid, if mailed;
(iii) when receipt acknowledged, if telecopied; and (iv) on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
18
<PAGE> 20
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[Signature Page Follows.]
19
<PAGE> 21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALL AMERICAN COMMUNICATIONS, INC.
By: /s/ Thomas Bradshaw
------------------------------
Name: Thomas Bradshaw
Title: Chief Financial Officer
GOLDMAN, SACHS & CO.
CHASE SECURITIES INC.
By Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
<PAGE> 1
Exhibit 4.5
================================================================================
------------------------------------------
ALL AMERICAN COMMUNICATIONS, INC.
SERIES A AND SERIES B
10 7/8% SENIOR SUBORDINATED NOTES DUE 2001
-----------------
INDENTURE
Dated as of October 11, 1996
-------------------------
U.S. Trust Company of California, N.A.
-----------------
Trustee
-----------------
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1).................................................. 7.10
(a)(2).................................................. 7.10
(a)(3) ................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b) .................................................... 7.10
(c) .................................................... N.A.
311 (a) .................................................... 7.11
(b) .................................................... 7.11
(c) .................................................... N.A.
312 (a)..................................................... 2.05
(b)..................................................... 11.03
(c) .................................................... 11.03
313 (a) .................................................... 7.06
(b)(1) ................................................. N.A.
(b)(2) ................................................. 7.07
(c) .................................................... 7.06;11.02
(d)..................................................... 7.06
314 (a) .................................................... 4.03;11.02
(c)(1) ................................................. 11.04
(c)(2) ................................................. 11.04
(c)(3) ................................................. N.A.
(d) .................................................... N.A.
(e) ................................................... 11.05
(f)..................................................... N.A.
315 (a)..................................................... 7.01
(b)..................................................... 7.05,11.02
(c) ................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.11
316 (a)(last sentence) ..................................... 2.09
(a)(1)(A)............................................... 6.05
(a)(1)(B) .............................................. 6.04
(a)(2) ................................................. N.A.
(b) .................................................... 6.07
(c) .................................................... N.A.
317 (a)(1) ................................................. 6.08
(a)(2).................................................. 6.09
(b) .................................................... 2.04
318 (a)..................................................... 11.01
(b)..................................................... N.A.
(c)..................................................... 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C>
SECTION 1.01. DEFINITIONS........................................................... 1
SECTION 1.02. OTHER DEFINITIONS..................................................... 14
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..................... 14
SECTION 1.04. RULES OF CONSTRUCTION................................................. 15
ARTICLE 2
THE NOTES
SECTION 2.01. FORM OF DATING........................................................ 15
SECTION 2.02. EXECUTION AND AUTHENTICATION.......................................... 17
SECTION 2.03. REGISTRAR AND PAYING AGENT............................................ 17
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST................................... 18
SECTION 2.05. HOLDER LISTS.......................................................... 18
SECTION 2.06. TRANSFER AND EXCHANGE................................................. 18
SECTION 2.07. REPLACEMENT NOTES..................................................... 27
SECTION 2.08. OUTSTANDING NOTES..................................................... 28
SECTION 2.09. TREASURY NOTES........................................................ 28
SECTION 2.10. TEMPORARY NOTES....................................................... 28
SECTION 2.11. CANCELLATION.......................................................... 28
SECTION 2.12. DEFAULTED INTEREST.................................................... 29
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.................................................... 29
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED..................................... 29
SECTION 3.03. NOTICE OF REDEMPTION.................................................. 30
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION........................................ 30
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE........................................... 30
SECTION 3.06. NOTES REDEEMED IN PART................................................ 31
SECTION 3.07. OPTIONAL REDEMPTION................................................... 31
SECTION 3.08. MANDATORY REDEMPTION.................................................. 31
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS................... 31
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES...................................................... 33
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY....................................... 34
SECTION 4.03. REPORTS............................................................... 34
SECTION 4.04. COMPLIANCE CERTIFICATE................................................ 34
SECTION 4.05. TAXES................................................................. 35
SECTION 4.06. STAY, EXTENSION AND USURY LAWS........................................ 35
SECTION 4.07. RESTRICTED PAYMENTS................................................... 35
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES........ 38
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK............ 38
SECTION 4.10. ASSET SALES........................................................... 40
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.......................................... 41
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
SECTION 4.12. LIENS................................................................. 42
SECTION 4.13. LINE OF BUSINESS...................................................... 42
SECTION 4.14. CORPORATE EXISTENCE................................................... 42
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL............................ 42
SECTION 4.16. NO SENIOR SUBORDINATED DEBT........................................... 43
SECTION 4.17. PREFERRED STOCK OF RESTRICTED SUBSIDIARIES............................ 43
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.............................. 44
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED..................................... 44
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT..................................................... 45
SECTION 6.02. ACCELERATION.......................................................... 46
SECTION 6.03. OTHER REMEDIES........................................................ 47
SECTION 6.04. WAIVER OF PAST DEFAULTS............................................... 47
SECTION 6.05. CONTROL BY MAJORITY................................................... 47
SECTION 6.06. LIMITATION ON SUITS................................................... 47
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT......................... 48
SECTION 6.08. COLLECTION SUIT BY TRUSTEE............................................ 48
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM...................................... 48
SECTION 6.10. PRIORITIES............................................................ 49
SECTION 6.11. UNDERTAKING FOR COSTS................................................. 49
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE..................................................... 49
SECTION 7.02. RIGHTS OF TRUSTEE..................................................... 50
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.......................................... 51
SECTION 7.04. TRUSTEE'S DISCLAIMER.................................................. 51
SECTION 7.05. NOTICE OF DEFAULTS.................................................... 51
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES............................ 51
SECTION 7.07. COMPENSATION AND INDEMNITY............................................ 52
SECTION 7.08. REPLACEMENT OF TRUSTEE................................................ 52
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC...................................... 53
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION......................................... 53
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..................... 54
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.............. 54
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE........................................ 54
SECTION 8.03. COVENANT DEFEASANCE................................................... 54
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE............................ 55
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS...................................................... 56
SECTION 8.06. REPAYMENT TO COMPANY.................................................. 56
SECTION 8.07. REINSTATEMENT......................................................... 57
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES........................................ 57
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES........................................... 58
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT........................................ 59
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.......................................... 59
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES........................................... 59
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC............................................ 59
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE................................................. 60
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY..................................... 60
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT........................................ 60
SECTION 10.04. ACCELERATION OF SECURITIES............................................... 61
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER...................................... 61
SECTION 10.06. NOTICE BY COMPANY........................................................ 62
SECTION 10.07. SUBROGATION.............................................................. 62
SECTION 10.08. RELATIVE RIGHTS.......................................................... 62
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY............................. 62
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE................................. 62
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT....................................... 63
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.................................... 63
SECTION 10.13. AMENDMENTS............................................................... 63
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.............................................. 63
SECTION 11.02. NOTICES................................................................... 63
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES............. 65
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT........................ 65
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............................. 65
SECTION 11.06. RULES BY TRUSTEE AND AGENTS............................................... 65
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.. 65
SECTION 11.08. GOVERNING LAW............................................................. 66
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............................. 66
SECTION 11.10. SUCCESSORS................................................................ 66
SECTION 11.11. SEVERABILITY.............................................................. 66
SECTION 11.12. COUNTERPART ORIGINALS..................................................... 66
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.......................................... 66
</TABLE>
iii
<PAGE> 6
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B-1 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM U.S. GLOBAL NOTE TO REGULATION S GLOBAL NOTE
Exhibit B-2 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE OR
ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
Exhibit B-3 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR ACCREDITED INSTITUTIONAL INVESTOR
GLOBAL NOTE TO ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE OR
RULE 144A GLOBAL NOTE, RESPECTIVELY
Exhibit B-4 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER OF
DEFINITIVE NOTES
Exhibit B-5 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR ACCREDITED INSTITUTIONAL INVESTOR
GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE TO DEFINITIVE
NOTE
Exhibit B-6 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM DEFINITIVE NOTE TO RULE 144A GLOBAL NOTE OR ACCREDITED
INSTITUTIONAL INVESTOR GLOBAL NOTE OR REGULATION S PERMANENT
GLOBAL NOTE
iv
<PAGE> 7
INDENTURE dated as of October 11, 1996 between All American
Communications, Inc., a Delaware corporation (the "Company"), and U.S. Trust
Company of California, N.A., as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the 10
7/8% Series A Senior Subordinated Notes due 2001 (the "Series A Notes") and the
10 7/8% Series B Senior Subordinated Notes due 2001 (the "Series B Notes" and,
together with the Series A Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Accredited Institutional Investor Global Note" means a
permanent global note that contains the paragraph referred to in footnote 1 and
the additional schedule referred to in footnote 2 to the form of the Note
attached hereto as Exhibit A-1, and that is deposited with and registered in the
name of the Depositary, representing a series of Notes sold to institutional
accredited investors in transactions exempt from registration under the
Securities Act not made in reliance on Rule 144A or Regulation S.
"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 became a Restricted 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
Restricted 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 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 specified 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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Members" means members of, or participants in, the
Depositary.
"Applicable Procedures" means applicable procedures of the
Depositary, Euroclear or Cedel Bank, as the case may be.
"Asset Sale" by any Person means (i) any transfer, conveyance,
sale, lease, license, or other disposition by such Person or any of its
Restricted Subsidiaries (including a consolidation or merger or other sale of
any such Restricted Subsidiaries with, into or to another Person in a
transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary, but excluding a disposition by a Restricted Subsidiary of such
Person to such Person) of any assets or rights of such Person or any of its
Restricted Subsidiaries outside of the ordinary course of business, and (ii) any
issuance or sale of Equity Interests in any of such Person's Restricted
Subsidiaries (other than to the Company or a Wholly Owned Restricted Subsidiary
of the Company), which in the case of either or both of clauses (i) and (ii),
whether in a single transaction or a series of related transactions, result in
Net Proceeds in excess of $5.0 million during any 12-month period, excluding
immaterial amounts received in respect of damaged, worn out or other
<PAGE> 8
property no longer necessary to the conduct of business. Notwithstanding the
foregoing, "Asset Sales" shall be deemed not to include (i) the licensing of
television programming and recorded music in the ordinary course of business,
(ii) assets transferred or disposed of in connection with a Securitized
Financing Transaction and (iii) the transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to another Restricted
Subsidiary pursuant to and in accordance with the provisions of Section 4.07
hereof, shall not be deemed "Asset Sales." The sale, lease, conveyance or other
disposition of all or substantially all the assets of the Company and its
Subsidiaries taken as a whole will be governed in accordance with Section 5.01
hereof and not be subject to the provisions of Section 4.10 hereof.
"Bank Credit Agreement" means (i) the Credit, Security,
Guaranty and Pledge Agreement, dated as of April 13, 1995 by and among the
Company and the lenders named therein, (ii) each instrument pursuant to which
Obligations under the agreement described in clause (i) is amended, deferred,
extended, renewed, replaced, refunded or refinanced, in whole or in part,
provided, however, that in the event the Obligations to pay principal at final
maturity under any such agreement as so amended, deferred, extended, renewed,
replaced, refunded or refinanced (for purposes of this definition, the "Amended
Bank Credit Agreement") become due and payable after the Stated Maturity of the
principal of the Notes, then such Amended Bank Credit Agreement shall not by its
terms prohibit payment of principal of the Notes at or after the Stated Maturity
of the principal of the Notes, except under the circumstances contemplated by
Article 10 hereof, and (iii) each instrument now or hereafter evidencing,
governing, guarantying or securing any Indebtedness under any agreements
described in clause (i) or (ii) above, in each case, as modified, amended,
restated or supplemented from time to time.
"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.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease" means, at the time any determination thereof
is to be made, any lease of property, real or personal or mixed in respect of
which the present value of the minimum rental commitment would be capitalized on
a balance sheet of the lessee 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, partnership
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.
"Capitalized Lease Obligation" of any Person means any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is required to be accounted for as a Capital
Lease on the balance sheet of that Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof, (iii) certificates
of deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not exceeding
six months and overnight bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess of $500 million and a
2
<PAGE> 9
Keefe Bank Watch Rating of "B" or better, (iv) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) entered into with any financial institution
meeting the qualifications specified in clause (iii) above, (v) commercial paper
having one of the two the highest rating categories obtainable from Moody's or
S&P and in each case maturing within six months after the date of acquisition
and (vi) readily marketable direct obligations issued by any state of the United
States of America or any political subdivision thereof having one of the two
highest rating categories obtainable from Moody's or S&P.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition of
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole to any person (as such term is used in Section
13(d)(3) of the Exchange Act) other than the Principal Shareholders and their
Related Parties (as defined), (each an "Acquiring Person"), provided, that the
incurrence of a Lien pursuant to and in accordance with the provisions set forth
in Section 4.12 hereof shall not be a Change of Control for purposes of this
clause, (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" other than the Principal Shareholders and their Related Parties,
becomes the "beneficial owner" (as each such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50.0%
of the voting stock of the Company, and (iv) the first day on which the majority
of the Company's Board of Directors are not Continuing Directors. For purposes
of this definition, any transfer of an equity interest of an entity that was
formed for the purpose of acquiring voting stock of the Company will be deemed
to be a transfer of such voting stock as corresponds to the portion of the
equity that has been so transferred.
"Company" has the meaning set forth in the preamble hereto.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period plus (i) an amount equal to any extraordinary loss
plus any net loss realized in connection with an Asset Sale (to the extent such
losses were deducted in computing such Consolidated Net Income), plus (ii)
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 (iii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (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,
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), to the extent that any such expense was deducted in
computing such Consolidated Net Income, plus (iv) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of programming costs and other prepaid cash expenses that were paid
in a prior period) and other non-cash charges (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for cash
charges 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
charges were deducted in computing such Consolidated Net Income, minus (v)
payments in connection with contractual obligations either existing at the date
hereof, or entered into after the date hereof, in connection with the payment of
deferred purchase price, or any other payments treated as purchase price
adjustments in accordance with GAAP, with respect to assets or properties
acquired by such Person and its Restricted Subsidiaries. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation
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and amortization and other non-cash charges of, a Restricted Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in same proportion) that the Net
Income of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person and only if a corresponding amount would
be permitted at the date of determination to be dividended to the Company by
such Restricted Subsidiary without prior governmental approval (that has not
been obtained), and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Restricted
Subsidiary or its stockholders.
"Consolidated Net Income" means, when used with reference to
any Person, for any period, the aggregate of the Net Income of such Person and
its Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, provided that (i) the Net Income of any Person which is
not a Restricted Subsidiary of such Person or is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid to such Person or its Restricted Subsidiaries,
(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, except
to the extent included pursuant to clause (i) above, (iii) extraordinary gains
and losses and gains and losses from the sale of assets outside the ordinary
course of such Person's business shall be excluded, (iv) the cumulative effect
of changes in accounting principles in the year of adoption of such changes
shall be excluded, (v) the effect of the write-off of unamortized debt issuance
costs and the redemption premium, each in connection with the redemption or
purchase of the Company's Convertible Subordinated Notes, if any, shall be
excluded and (vi) the tax effect of any of the items described in clauses (i)
through (v) above shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (i) the consolidated equity of the common stockholders
of such Person and its consolidated Restricted Subsidiaries as of such date plus
(ii) the respective amounts reported on such Person's balance sheet as of such
date with respect to any series of preferred stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (x) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the date hereof in the
book value of any asset owned by such Person or a consolidated Subsidiary of
such Person, (y) all investments as of such date in unconsolidated Subsidiaries
and in Persons that are not Restricted Subsidiaries (except, in each case,
Permitted Investments), and (z) all unamortized debt discount and expense and
unamortized deferred charges as of such date, all of the foregoing determined in
accordance with GAAP.
"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 hereof 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.
"Convertible Subordinated Notes" means the Company's 6-1/2%
Convertible Subordinated Notes due 2003.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof; provided, however, for
the purpose of presentation of Notes for payment, transfer or exchange and
maintenance of the registration books, such term shall mean the office at which
the Trustee conducts its corporate agency business, or such other address as to
which the Trustee may give notice to the Company.
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"Default" means any event that is, or after notice or the
passage of time or both, would be an Event of Default.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A-1, that do not include the information called
for by footnotes 1 and 2 thereof.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (i) all Indebtedness under the
Bank Credit Agreement and (ii) any other Senior Debt the incurrence of which was
permitted under this Indenture the principal amount of which is $20.0 million or
more and that has been designated by the Company (with the concurrence of the
agent under the Bank Credit Agreement if then outstanding) as "Designated Senior
Debt."
"Disqualified Stock" means Capital Stock of the Company that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable, is, or upon the happening of any event or passage of time would
be, required to be redeemed or purchased, including at the option of the holder,
in whole or in part, or has, or upon the happening of an event or passage of
time would have, a redemption, sinking fund or similar payment due, on or prior
to the Stated Maturity of the Notes.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to issue and exchange
Series B Notes for Series A Notes.
"Existing Indebtedness" means any outstanding Indebtedness of
the Company and its Restricted Subsidiaries (other than under the Bank Credit
Agreement) as of the date hereof.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the Company or any of its Restricted Subsidiaries incurs, assumes,
Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the date of the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, Guarantee or redemption
of such Indebtedness, or such issuance or redemption of preferred stock, as if
the same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the Company or any of its Restricted
Subsidiaries (including, without duplication, the Mark Goodson Acquisition),
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
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<PAGE> 12
calculated without giving effect to clause (ii) of the proviso set forth in the
definition of Consolidated Net Income, (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, and (iii) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of the
referent Person or any of its Restricted Subsidiaries following the Calculation
Date.
"Fixed Charges" 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,
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, but excluding (1) the imputed interest discount recorded
by the Company on accounts receivable during such period to the extent that the
amortization thereof is excluded from Consolidated Net Income and (2)
amortization of debt issuance costs in respect of Indebtedness of such Person
outstanding on the date hereof including, with respect to the Company, the
Notes) and (ii) the consolidated interest expense of such Person and its
Subsidiaries that was capitalized during such period, and (iii) any interest
expense on Indebtedness 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) and (iv) all cash dividend payments (and non-cash dividend payments
in the case of a Person that is a Restricted Subsidiary) on any series of
preferred stock of such Person, in each case, on a consolidated basis and in
accordance with GAAP.
"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.
"Global Notes" means, individually and collectively, the
Regulation S Temporary Global Note, the Regulation S Permanent Global Note, the
Accredited Institutional Investor Global Note and the Rule 144A Global Note.
"Government Securities" means 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 is
pledged.
"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, letters of
credit and 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) currency exchange or interest rate swap,
cap or collar agreements and (ii) other agreements or arrangements designed to
protect such Person against fluctuations in currency exchange or interest rates.
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<PAGE> 13
"Holder" means a Person in whose name a Definitive Note is
registered on the books of the Registrar, or in whose name a beneficial interest
in a Global Note is recorded by the Trustee or the Note Custodian.
"Indebtedness" means, with respect to any Person, (i) any
indebtedness of such Person, without duplication, 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 bankers' acceptances or representing Capital Lease Obligations or
the balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (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), (ii)
to the extent not included in clause (i), the Guarantee by such Person of any
indebtedness of any other Person and (iii) Securitized Financing Indebtedness.
Notwithstanding the foregoing, Indebtedness shall not include Program
Guarantees.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Investment" 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 made 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; provided that an acquisition of assets, Equity Interests or other
securities by the Company for consideration consisting of common equity
securities of the Company shall not be deemed to be an Investment. 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 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.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, New York, City of Los Angeles,
California, or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind (except for taxes
not yet owing) in respect of such asset, whether or 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 and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Mark Goodson Acquisition" means, collectively, (i) the
acquisition by Mark Goodson Productions, LLC, a New York limited liability
company ("Mark Goodson Productions, LLC"), of substantially all of the assets
(excluding those related to the lottery business) and certain liabilities of
Mark Goodson Productions, L.P., a California limited partnership, pursuant to
the Asset Purchase Agreement,
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<PAGE> 14
dated as of October 6, 1995, and (ii) the acquisition by All American Goodson,
Inc., a California corporation, of the 50% ownership interest in the Mark
Goodson Productions, LLC owned by The Interpublic Group of Companies, Inc.
pursuant to the Purchase Agreement and Amendment to the Amended and Restated
Limited Liability Company Operating Agreement of Mark Goodson Productions, LLC,
dated as of January 1, 1996. For purposes of the definition of "Fixed Charge
Coverage Ratio" used herein, each of the transactions referenced in clauses (i)
and (ii) preceding shall be deemed to have occurred at the beginning of the
applicable four-quarter reference period ending September 30, 1996.
"Maturity" means, with respect to any Note, the date on which
the principal of such Note becomes due and payable as provided in such Note or
this Indenture, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means Moody's Investor Service. Inc. and its
successors.
"Net Income" of any Person for any period means the net income
(loss) from continuing operations of such Person for such period, determined in
accordance with GAAP.
"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 (other than the Bank Credit Agreement) secured by
a Lien on the asset or assets that were the subject of such Asset Sale,
contractual obligations either existing at the date hereof, or entered into
after the date hereof from time to time in the ordinary course of business and
consistent with the Company's past practice in connection with the payment of
deferred purchase price of the properties 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, provided that any such
reduction in such reserve shall be deemed to be Net Proceeds in connection with
such Asset Sale to the extent of such reduction.
"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 but excluding licensing in the ordinary course of
business and Program Guarantees), (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 Subsidiaries.
"Obligations" means any principal (including reimbursement
obligations and Guarantees), 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), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
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<PAGE> 15
"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.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Permitted Investments" means (a) any Investment in the
Company or in a Restricted Subsidiary of the Company that is engaged in the same
or a similar line of business as the Principal Business, provided that, (i) in
the case of an Investment in an Equity Interest in a corporation, such
Investment increases pro rata such Person's ownership of the outstanding voting
capital stock of such corporation and, (ii) in the case of an Investment in any
other Subsidiary, such Investment increases pro rata such Person's ownership and
control of such entity; (b) any Investment in Cash Equivalents; (c) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary of the Company that is engaged in the same or a similar line of
business as the Principal Business or (ii) such Person is merged, consolidated
or amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company that is engaged in the same or a similar line of business as the
Principal Business; (d) any Restricted Investment made as a result of the
receipt of non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with the provisions set forth in Section 4.10 hereof; and (e)
loans and advances to the Company's officers, directors and employees made in
the ordinary course of business and consistent with the Company's past practice
in an aggregate amount, when taken together with all other investments pursuant
to this clause (e), does not exceed $1.0 million.
"Permitted Non-Cash Asset Sale" means, with respect to any
Person, any Asset Sale of assets used in connection with, or related to, the
production, release, distribution and licensing of recorded music.
"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;
provided that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of plus the interest accrued and unpaid prior to
the occurrence of an event of default with respect to such other Indebtedness,
if any, on the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of any premium required to be paid, and the amount
of reasonable expenses incurred, in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date equal to or 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, 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
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<PAGE> 16
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 the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Principal Business" means, with respect to the Company and
its Restricted Subsidiaries, any line or lines of business activity conducted by
the Company or its Restricted Subsidiaries on the date hereof, or any other
activities ancillary or related thereto, including without limitation,
television production, distribution and exhibition, recorded music production
and distribution and investments in working capital items and current assets
related thereto.
"Principal Shareholders" means Anthony J. Scotti and Benjamin
J. Scotti and their respective immediate family members.
"Program Guarantees" means with respect to any Person, any
commitment of such Person to a producer or owner of a program in conjunction
with the acquisition of a program or distribution rights in a program by such
Person to the effect that the gross revenues to be generated in the future from
the exploitation of such program or the net revenues to be received by such
producer or owner from the exploitation of such program will equal or exceed an
amount specified in the acquisition agreement related to such program or
otherwise requiring payment by such Person of a minimum amount specified in the
acquisition agreement related to such program regardless of actual performance
of such program.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of October 11, 1996, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global
note that contains the paragraph referred to in footnote 1 and the additional
schedule referred to in footnote 2 to the form of the Note attached hereto as
Exhibit A-1, and that is deposited with and registered in the name of the
Depositary, representing a series of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary
global note in the form of the Note attached hereto as Exhibit A-2 that is
deposited with and registered in the name of the Depositary, representing a
series of Notes sold in reliance on Regulation S.
"Related Party" with respect to any Principal Shareholder
means (A) any controlling stockholder, 80% (or more) owned Subsidiary, or spouse
or immediate family member (in the case of an individual) of such Principal
Shareholder or (B) or trust, corporation, partnership or any other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such Principal Shareholder
and/or such other Persons referred to in the
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<PAGE> 17
immediately preceding clause (A) , or (C) trust, the beneficiaries holding more
than a 50% beneficial interest of which consist of any Principal Shareholder
and/or other such Persons referred to in clause (A), for so long as the
Principal Shareholder or any of the other Persons referred to in clause (A)
above or any other Principal Shareholder serves as trustee therefor and, in such
capacity, possesses and retains the right to vote, at such trustee's absolute
discretion, all shares of capital stock held in such trust.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Debt.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee assigned
to perform the duties of Trustee hereunder and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not (i) an Unrestricted Subsidiary or (ii) a direct
or indirect Subsidiary of an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 144A Global Note" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit
A-1, and that is deposited with and registered in the name of the Depositary,
representing a series of Notes sold in reliance on Rule 144A.
"S&P" means Standard & Poor's Rating Group, a division of
McGraw Hill, Inc., a New York corporation and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitized Financing Indebtedness" means, with respect to
any Person, the unreturned portion of the amount funded by the investors under
an asset securitization facility with such Person.
"Securitized Financing Transaction" means, with respect to any
Person, a securitized financing of receivables of such Person.
"Senior Debt" means (i) all Obligations under the Bank Credit
Agreement and (ii) all Obligations with respect to any other Indebtedness
permitted to be incurred by the Company under the terms of this Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment to the
Notes. Notwithstanding anything to the contrary in the foregoing, Senior Debt
will not include (v) Indebtedness (other than Indebtedness under clause (i)
above) that is expressly subordinate or junior in right of payment to any
Indebtedness of the Company, (w) any liability for federal, state, local or
other taxes owed or owing by the Company, (x) any Indebtedness of the Company to
any of its Subsidiaries or other Affiliates, (y) any trade payables created,
incurred or assumed in the ordinary course of business and consistent with past
practice in connection with obtaining materials or services or (z) any
Indebtedness that is incurred in violation of this Indenture.
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"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 hereof.
"Special Interest" means all special interest then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Stated Maturity," when used with respect to any Note or any
installment of interest thereof, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"Subsidiary" of any Person means (i) a corporation,
association or other business entity of which more than 50% of the total voting
power of all classes of the outstanding voting stock is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof, (ii) any partnership (a)
the sole general partner or the managing general partner 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
thereof) and (iii) any other Person not described in clauses (i) and (ii) above
and designated by the Board of Directors of such Person as a Subsidiary in which
such Person, or one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof, directly or indirectly, owns 50%
ownership and the power, pursuant to a written contract or agreement, to direct
the policies and management or the financial and other affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
SectionSection 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Transfer Restricted Securities" means securities that bear or
are required to bear the legend set forth in Section 2.06 hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that is
designated by the Board of Directors of the Company 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 Capital Stock
(including options, warrants or other rights to acquire Capital Stock) 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 (but excluding
licensing in the ordinary course of business and Program Guarantees) 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 filing with the Trustee
a certified copy of the Board Resolution giving effect to such
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<PAGE> 19
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted pursuant to and in
accordance with the provisions set forth in Section 4.07 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 pursuant to and in accordance with the provisions set
forth in Section 4.09 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
pursuant to and in accordance with the provisions set forth in Section 4.09
hereof, and (ii) no Default or Event of Default would be in existence following
such designation.
"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 (i) 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 and (ii) Fremantle International,
Inc., a New York corporation, and Fremantle de Espana, a Spanish corporation,
(unless either such subsidiary is designated by the Company's Board of Directors
as an Unrestricted Subsidiary), provided that not less than 99.0% of the
outstanding Capital Stock or other ownership interests thereof (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.
[Remainder of page intentionally left blank.]
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<PAGE> 20
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
<S> <C>
"Accredited Investor"........................... 2.01
"Affiliate Transaction"......................... 4.11
"Asset Sale Trigger Date"....................... 4.10
"Cedel Bank".................................... 2.01
"Change of Control Offer"....................... 4.15
"Change of Control Payment"..................... 4.15
"Change of Control Payment Date"................ 4.15
"Covenant Defeasance"........................... 8.03
"DTC"........................................... 2.03
"Euroclear"..................................... 2.01
"Event of Default".............................. 6.01
"Excess Proceeds"............................... 4.10
"incur"......................................... 4.09
"Legal Defeasance".............................. 8.02
"Note Custodian"................................ 2.03
"Offer Amount".................................. 3.09
"Offer Period".................................. 3.09
"Paying Agent".................................. 2.03
"Payment Blockage Notice"....................... 10.03
"Purchase Date"................................. 3.09
"QIB"........................................... 2.01
"Record Business Restricted Subsidiaries"....... 4.07
"Registrar"..................................... 2.03
"Restricted Payments"........................... 4.07
"Sale Transaction".............................. 3.07
"Sale Transaction Triggering Effect"............ 3.07
"Shareholder/Affiliate Transaction"............. 4.11
"U.S. Global Notes" ............................ 2.01
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
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<PAGE> 21
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of (i) in the case of the Notes other than a
Regulation S Temporary Global Note, Exhibit A-1 attached hereto, and (ii) in the
case of a Regulation S Temporary Global Note, Exhibit A-2 attached hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be issued in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The terms and provisions contained in the
Notes shall constitute, and are hereby expressly made, a part of this Indenture
and the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to (i) qualified
institutional buyers as defined in Rule 144A ("QIBs") in reliance on Rule 144A
and (ii) institutional accredited investors as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act ("Accredited Investors") who are not QIBs,
shall be issued initially in the form of Rule 144A Global Notes and Accredited
Institutional Investor Global Notes (collectively, the "U.S. Global Notes"),
respectively, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Depositary at its New York office, and registered
in the name of the Depositary or a nominee of the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the U.S. Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee as hereinafter provided.
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<PAGE> 22
Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which
shall be deposited on behalf of the purchasers of the Notes represented thereby
with the Trustee, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of the Euroclear System
("Euroclear") or Cedel Bank, S.A. ("Cedel Bank"), duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The "40-day restricted
period" (as defined in Regulation S) shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel Bank certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Note (except to the extent
of any beneficial owners thereof who acquired an interest therein pursuant to
another exemption from registration under the Securities Act and who will take
delivery of a beneficial ownership interest in a U.S. Global Note, all as
contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate
from the Company. Following the termination of the 40-day restricted period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S
Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian (as hereinafter defined), at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to Participants" of Cedel Bank shall
be applicable to interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by the Agent Members through
Euroclear or Cedel Bank.
Except as set forth in Section 2.06 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply
only to U.S. Global Notes and the Regulation S Permanent Global Notes deposited
with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(b), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depositary or the nominee of the
Depositary and (ii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions or held by the Trustee as custodian
for the Depositary.
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<PAGE> 23
Agent Members shall have no rights either under this Indenture
with respect to any Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall
be substantially in the form of Exhibit A-1 attached hereto (but without
including the text referred to in footnotes 1 and 2 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes and may
be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer, authenticate Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Notes, in the case of Notes other
than a Regulation S Temporary Global Note, and the second paragraph of the
Notes, in the case of a Regulation S Temporary Global Note. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Restricted Subsidiaries may act as Paying Agent or Registrar.
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<PAGE> 24
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as custodian with respect to the Global Notes (the
"Note Custodian").
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of and premium, interest and Special Interest, if any, on the Notes,
and will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. If the Company or a Restricted Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) U.S. Global Note to Regulation S Global Note. If, at any
time, an owner of a beneficial interest in a U.S. Global
Note deposited with the Depositary (or the Trustee as
custodian for the Depositary) wishes to transfer its
interest in such U.S. Global Note to a Person who is
required or permitted to take delivery thereof in the
form of an interest in a Regulation S Global Note, such
owner shall, subject to the Applicable Procedures,
exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Regulation S Global
Note as provided in this Section 2.06(a)(i). Upon
receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent
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<PAGE> 25
Member directing the Trustee to credit or cause to be
credited a beneficial interest in the Regulation S
Global Note in an amount equal to the beneficial
interest in the applicable U.S. Global Note (e.g., the
Rule 144A Global Note or the Accredited Institutional
Investor Global Note) to be exchanged, (2) a written
order given in accordance with the Applicable Procedures
containing information regarding the participant account
of the Depositary and the Euroclear or Cedel Bank
account to be credited with such increase, and (3) a
certificate in the form of Exhibit B-1 hereto given by
the owner of such beneficial interest stating that the
transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with Rule 903 or
Rule 904 of Regulation S, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or
cause to be reduced the aggregate principal amount at
maturity of the applicable U.S. Global Note and to
increase or cause to be increased the aggregate
principal amount at maturity of the applicable
Regulation S Global Note by the principal amount at
maturity of the beneficial interest in the U.S. Global
Note to be exchanged, to credit or cause to be credited
to the account of the Person specified in such
instructions a beneficial interest in the Regulation S
Global Note equal to the reduction in the aggregate
principal amount at maturity of the applicable U.S.
Global Note, and to debit, or cause to be debited, from
the account of the Person making such exchange or
transfer the beneficial interest in the U.S. Global Note
that is being exchanged or transferred.
(ii) Regulation S Global Note to U.S. Global Note. If, at any
time, an owner of a beneficial interest in a Regulation
S Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary wishes to
transfer its interest in such Regulation S Global Note
to (1) a Person who is required or permitted to take
delivery thereof in the form of an interest in a Rule
144A Global Note or (2) a Person who is required or
permitted to take delivery thereof in the form of an
interest in an Accredited Institutional Investor Global
Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Rule
144A Global Note or an Accredited Institutional Investor
Global Note, as applicable, as provided in this Section
2.06(a)(ii). Upon receipt by the Trustee of (1)
instructions from Euroclear or Cedel Bank, if
applicable, and the Depositary, directing the Trustee,
as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note or the
Accredited Institutional Investor Global Note, as
applicable, equal to the beneficial interest in the
Regulation S Global Note to be exchanged, such
instructions to contain information regarding the
participant account with the Depositary to be credited
with such increase, (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the participant account of the
Depositary and (3) a certificate in the form of Exhibit
B-2 attached hereto given by the owner of such
beneficial interest stating (A) if the transfer is
pursuant to Rule 144A, that the Person transferring such
interest in a Regulation S Global Note reasonably
believes that the Person acquiring such interest in a
Rule
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<PAGE> 26
144A Global Note is a QIB and is obtaining such
beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or
securities laws of any state of the United States, (B)
that the transfer complies with the requirements of Rule
144A under the Securities Act and any applicable blue
sky or securities laws of any state of the United States
or (C) if the transfer is pursuant to any other
exemption from the registration requirements of the
Securities Act, that the transfer of such interest has
been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in
accordance with the requirements of the exemption
claimed, such statement to be supported by an Opinion of
Counsel from the transferee or the transferor in form
reasonably acceptable to the Company and to the
Registrar, then the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced
the aggregate principal amount at maturity of such
Regulation S Global Note and to increase or cause to be
increased the aggregate principal amount at maturity of
the applicable Rule 144A Global Note or the Accredited
Institutional Investor Global Note, as applicable, by
the principal amount at maturity of the beneficial
interest in the Regulation S Global Note to be
exchanged, and the Trustee, as Registrar, shall instruct
the Depositary, concurrently with such reduction, to
credit or cause to be credited to the account of the
Person specified in such instructions a beneficial
interest in the applicable Rule 144A Global Note or the
Accredited Institutional Investor Global Note, as
applicable, equal to the reduction in the aggregate
principal amount at maturity of such Regulation S Global
Note and to debit or cause to be debited from the
account of the Person making such transfer the
beneficial interest in the Regulation S Global Note that
is being transferred.
(iii) Rule 144A Global Note to Accredited Institutional
Investor Global Note; Accredited Institutional Investor
Global Note to Rule 144A Global Note. If, at any time,
an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary or with the Trustee
as custodian for the Depositary wishes to transfer its
interest in such Rule 144A Global Note to a Person who
is required or permitted to take delivery thereof in the
form of an interest in an Accredited Institutional
Investor Global Note or an owner of an Accredited
Institutional Investor Global Note wishes to transfer
its interest in such Accredited Institutional Investor
Global Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a
Rule 144A Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of
such interest for an equivalent beneficial interest in a
Rule 144A Global Note or an Accredited Institutional
Investor Global Note, as applicable, as provided in this
Section 2.06(a)(iii). Upon receipt by the Trustee of (1)
instructions from the Depositary, directing the Trustee,
as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note or the
Accredited Institutional Investor Global Note, as
applicable, equal to the beneficial interest in the Rule
144A Global Note or Accredited Institutional Investor
Global Note to be exchanged, such instructions to
contain information regarding the participant account
with
20
<PAGE> 27
the Depositary to be credited with such increase, (2) a
written order given in accordance with the Applicable
Procedures containing information regarding the
participant account of the Depositary and (3) a
certificate in the form of Exhibit B-3 attached hereto
given by the owner of such beneficial interest stating
(A) if the transfer is pursuant to Rule 144A, that the
Person transferring such interest in an Accredited
Institutional Investor Global Note reasonably believes
that the Person acquiring such interest in a Rule 144A
Global Note is a QIB and is obtaining such beneficial
interest in a transaction meeting the requirements of
Rule 144A and any applicable blue sky or securities laws
of any state of the United States, (B) that the transfer
complies with the requirements of Rule 144A under the
Securities Act and any applicable blue sky or securities
laws of any state of the United States or (C) if the
transfer is pursuant to any other exemption from the
registration requirements of the Securities Act, that
the transfer of such interest has been made in
compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with
the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from
the transferee or the transferor in form reasonably
acceptable to the Company and to the Registrar, then the
Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal
amount at maturity of such Rule 144A Global Note or
Accredited Institutional Investor Global Note and to
increase or cause to be increased the aggregate
principal amount at maturity of the applicable Rule 144A
Global Note or the Accredited Institutional Investor
Global Note, as applicable, by the principal amount at
maturity of the beneficial interest in the Rule 144A
Global Note or Accredited Institutional Investor Global
Note to be exchanged, and the Trustee, as Registrar,
shall instruct the Depositary, concurrently with such
reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in the applicable Rule 144A Global
Note or the Accredited Institutional Investor Global
Note, as applicable, equal to the reduction in the
aggregate principal amount at maturity of such Rule 144A
Global Note or the Accredited Institutional Investor
Global Note and to debit or cause to be debited from the
account of the Person making such transfer the
beneficial interest in the Rule 144A Global Note or the
Accredited Institutional Investor Global Note that is
being transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the
exchange as requested; provided, however, that the Definitive
Notes presented or surrendered for register of transfer or
exchange:
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<PAGE> 28
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his
attorney, duly authorized in writing; and
(ii) in the case of a Definitive Note that is a Transfer
Restricted Security, such request shall be accompanied
by the following additional information and documents,
as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, or such Transfer Restricted Security is
being transferred to the Company, a certification
to that effect from such Holder (in substantially
the form of Exhibit B-4 hereto);
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A
under the Securities Act or pursuant to an
exemption from registration in accordance with Rule
144 under the Securities Act or pursuant to an
effective registration statement under the
Securities Act, a certification to that effect from
such Holder (in substantially the form of Exhibit
B-4 hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from
the registration requirements of the Securities
Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B-4
hereto) and an Opinion of Counsel from such Holder
or the transferee reasonably acceptable to the
Company and to the Registrar to the effect that
such transfer is in compliance with the Securities
Act.
(c) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global Note
(other than a Regulation S Temporary Global Note) may
upon request, subject to the Applicable Procedures,
exchange such beneficial interest for a Definitive Note.
Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the
Depositary (or Euroclear or Cedel Bank, if applicable),
from the Depositary or its nominee on behalf of any
Person having a beneficial interest in such Global Note,
and, in the case of a Transfer Restricted Security, the
following additional information and documents (all of
which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to
the Person designated by the Depositary as being
the beneficial owner, a certification to that
effect from such Person (in substantially the form
of Exhibit B-5 hereto);
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(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from the transferor
(in substantially the form of Exhibit B-5 hereto);
or
(C) if such beneficial interest is being transferred in
reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from the transferor
(in substantially the form of Exhibit B-5 hereto)
and an Opinion of Counsel from the transferee or
the transferor reasonably acceptable to the Company
and to the Registrar to the effect that such
transfer is in compliance with the Securities Act,
the Trustee or the Note Custodian, at the direction of
the Trustee, shall, in accordance with the standing
instructions and procedures existing between the
Depositary and the Note Custodian, cause the aggregate
principal amount of the applicable Global Note (e.g.,
the Rule 144A Global Note, the Accredited Institutional
Investor Global Note or the Regulation S Permanent
Global Note) to be reduced accordingly and, following
such reduction, the Company shall execute and, the
Trustee shall authenticate and deliver to the transferee
a Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note (other than a Regulation S
Temporary Global Note), as applicable, pursuant to this
Section 2.06(c) shall be registered in such names and in
such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered.
Following any such issuance of Definitive Notes, the
Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal
amount at maturity of the applicable Global Note to
reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(e) Transfer and Exchange of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except, subject to the Applicable
Procedures, upon satisfaction of the requirements set forth below. Upon receipt
by the Trustee of a Definitive Note, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trustee, and, in the case
of a Transfer Restricted Security, the following additional information and
documents (all of which may be submitted by facsimile):
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(i) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of Exhibit B-6
hereto);
(ii) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act, a certification to that effect from
the transferor (in substantially the form of Exhibit B-6
hereto); or
(iii) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B-6 hereto) and an Opinion of Counsel
from the transferee or the transferor reasonably
acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the
Securities Act,
the Trustee shall cancel such Definitive Note in accordance with Section 2.11
hereof and cause, or direct the Note Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depositary and the
Note Custodian, the aggregate principal amount of Notes represented by the
applicable Global Note (e.g., the Rule 144A Global Note, the Accredited
Institutional Investor Global Note or the Regulation S Permanent Global Note, as
the case may be) to be increased accordingly. If none of the applicable Global
Notes are then outstanding, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee shall
authenticate a new applicable Global Note in the appropriate principal amount.
(f) Authentication of Definitive Notes in Absence of Depositary.
If at any time:
(i) the Depositary for the Notes notifies the Company that
the Depositary is unwilling or unable to continue as
Depositary for the Global Notes and a successor
Depositary for the Global Notes is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance
of Definitive Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii) and
(iii), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange
therefor or substitution thereof) shall bear legends in
substantially the following form:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT
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OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHOM
SUCH INVESTOR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT
INVESTORS AS SET FORTH IN (A) ABOVE OR TO INSTITUTIONAL
ACCREDITED INVESTORS IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) pursuant to Rule 144 under
the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Note that does
not bear the legend set forth in (i) above and
rescind any restriction on the transfer of such
Transfer Restricted Security upon receipt of a
certification from the transferring holder
substantially in the form of Exhibit B-4 hereto;
and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer
Restricted Security shall not be required to bear
the legend set forth in (i) above, but shall
continue to be subject to the provisions of Section
2.06(a) and (b) hereof; provided, however, that
with respect to any request for an exchange of a
Transfer Restricted Security that is represented by
a Global Note for a Definitive Note that does not
bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant
to Rule 144 (such certification to be substantially
in the form of Exhibit B-4 hereto).
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(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) in reliance on any
exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule
144A or Rule 144 under the Securities Act) in which the
Holder or the transferee provides an Opinion of Counsel
to the Company and the Registrar in form and substance
reasonably acceptable to the Company and the Registrar
(which Opinion of Counsel shall also state that the
transfer restrictions contained in the legend are no
longer applicable):
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Note that does
not bear the legend set forth in (i) above and
rescind any restriction on the transfer of such
Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer
Restricted Security shall not be required to bear
the legend set forth in (i) above, but shall
continue to be subject to the provisions of Section
2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer in accordance with the Registration
Rights Agreement, the Company shall issue and, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate
Series B Notes in exchange for Series A Notes accepted
for exchange in the Exchange Offer, which Series B Notes
shall not bear the legend set forth in (i) above, and
the Registrar shall rescind any restriction on the
transfer of such Series B Notes, in each case unless the
Holder of such Series A Notes is either (A) a
broker-dealer, (B) a Person participating in the
distribution of the Series A Notes or (C) a Person who
is an affiliate (as defined in Rule 144A) of the
Company.
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or canceled, all Global Notes shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's
request.
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(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 4.10, 4.15 and 9.05
hereto).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes
or Global Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Definitive
Notes or Global Notes surrendered upon such registration
of transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to
exchange Notes during a period beginning at the
opening of business 15 days before the day of any
selection of Notes for redemption under Section
3.02 hereof and ending at the close of business on
the day of selection; or
(B) to register the transfer of or to exchange any Note
so selected for redemption in whole or in part,
except the unredeemed portion of any Note being
redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any
Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of and
interest on such Notes, and neither the Trustee, any
Agent nor the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Definitive Notes and
Global Notes in accordance with the provisions of
Section 2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the reasonable judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
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agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company or a Restricted
Subsidiary) holds, on a redemption date or maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Trustee knows are so owned shall
be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes
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(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, as directed by the Company in writing. In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
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SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
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If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.07,
the Notes are not redeemable at the Company's option prior to stated maturity.
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, in the event (a "Sale Transaction Triggering Event") that, prior
to April 4, 1998, the Company enters into a letter of intent or makes a public
announcement with respect to the sale of all of the Company's capital stock
(whether by merger, consolidation or otherwise), or all or substantially all of
the Company's assets (a "Sale Transaction"), the Company may, subsequent to the
closing of such Sale Transaction, redeem up to $100.0 million in principal
amount of Notes at a redemption price of 110.875% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, thereon
to the redemption date, provided that such Sale Transaction closes within 120
days after such Sale Transaction Triggering Event and, provided further, that
notice of such redemption shall be given within 30 days of the date of the
closing of such Sale Transaction. In addition, any time prior to April 4, 1998,
the Company may redeem up to $35.0 million in principal amount of Notes at a
redemption price of 110.875% of the principal amount thereof, plus accrued and
unpaid interest and Special Interest, if any, thereon to the redemption date,
with the net proceeds of a public offering of common stock of the Company,
provided that at least $65.0 million in aggregate principal amount of Notes
remain outstanding immediately after the occurrence of such redemption and,
provided further, that notice of such redemption shall be given within 30 days
of the date of the closing of such public offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.15 hereof, the
Company shall not be required to make mandatory or sinking fund redemption
payments with respect to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes,
it shall follow the procedures specified below.
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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 4.10 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 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price, the amount of
accrued and unpaid interest and Special Interest, if any, as of the
Purchase Date 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 accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset 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
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<PAGE> 39
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 the Purchase Date for any Offer, the Company shall (i)
accept for payment the maximum principal amount of Notes tendered pursuant to
such Offer than can be purchased out of Excess Proceeds from such Asset Sales,
(ii) deposit with the Paying Agent the aggregate purchase price of all Notes
accepted for payment and any accrued and unpaid interest and Special Interest,
if any, on such Notes as of the Purchase Date, and (iii) deliver or cause to be
delivered to the Trustee all Notes tendered pursuant to the Offer. If less than
all Notes tendered pursuant to any Offer are accepted for payment by the Company
for any reason, selection of the Notes to be purchased by the Trustee will be in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis, as directed by the Company in writing; provided that Notes
accepted for payment in part shall only be purchased in integral multiples of
$1,000. The Paying Agent will promptly mail to each Holder of Notes accepted for
payment an amount equal to the purchase price for such Notes plus any accrued
and unpaid interest and Special Interest thereon, if any, and the Trustee will
promptly authenticate and mail to such Holder of Notes accepted for payment in
part a new Note equal in principal amount to any unpurchased portion of the
Notes, and any Note not accepted for payment in whole or in part shall be
promptly returned to the Holder of such Note. On and after a Purchase Date,
interest will cease to accrue on the Notes accepted for payment. The Company
shall announce the results of the Offer to Holders of the Notes on or as soon as
practicable after the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Special Interest, if any, in the same manner on the dates
and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate set forth in the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Special Interest, if any, (without regard
to any applicable grace period) at the same rate to the extent lawful.
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SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of
the SEC, so long as any Notes are outstanding, the Company shall furnish to the
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K (as such requirement is in effect
as of the date hereof) if the Company were required to file such reports. In
addition, whether or not required by the rules and regulations of the SEC, the
Company shall file a copy of all such information and reports with the SEC for
public availability (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors who
request it in writing. The Company shall at all times comply with TIA Section
314(a).
(b) For so long as any Transfer Restricted Securities remain
outstanding, the Company shall furnish to all Holders and prospective purchasers
of the Notes designated by the Holders of Transfer Restricted Securities,
promptly upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 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
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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
year-end financial statements delivered pursuant to Section 4.03(a) above shall
be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07. 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 the Company's
or any of its Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment by the Company or its Restricted Subsidiaries in
connection with any merger or consolidation involving the Company) or to the
direct or indirect holders of the Company's Equity Interests in their capacity
as such (other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or pro rata dividends or
distributions in respect of Equity Interests of a Restricted Subsidiary); (ii)
purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Company or any direct or indirect parent of the Company or other
Affiliate of the Company that is not (or
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does not, as a result of such purchase, redemption or acquisition, become) a
Restricted Subsidiary of the Company; (iii) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes (other than the Notes), except at
final maturity and in connection with any scheduled mandatory payment or sinking
fund obligation 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 on a pro forma basis:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Fixed Charge Coverage Ratio of the Company for the
Company's most recently ended four full fiscal quarters (taken as one
accounting period) for which internal financial statements are
available immediately preceding the date on which such Restricted
Payment is made, calculated on a pro forma basis as if such Restricted
Payment had been made at the beginning of such four-quarter period,
would have been equal to or greater than 2.0 to 1.0,
(c) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date hereof (including Restricted Payments
permitted by clauses (t) and (w) of the next succeeding paragraph, but
excluding all other Restricted Payments permitted by the next
succeeding paragraph), does not exceed the sum of (i) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from October 1, 1996 to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit, less 100% of
such deficit), plus (ii) 100% of the aggregate net cash proceeds
received by the Company from the issue or sale since the date hereof of
Equity Interests of the Company or of debt securities of the Company
issued since the date hereof that have been converted into such Equity
Interests (other than Equity Interests (or convertible debt securities)
sold to a Subsidiary of the Company and other than Disqualified Stock
or debt securities that have been converted into Disqualified Stock),
plus (iii) to the extent not otherwise included pursuant to clause (ii)
above, 100% of the aggregate net cash proceeds received by the Company
from capital contributions received by the Company after the date
hereof which, in accordance with GAAP, is not recognized as income by
the Company and directly increases common stockholders' equity, and
which (1) is not a payment in respect or satisfaction of any
settlement, claim, dispute or obligation owed to the Company or any of
its Subsidiaries, (2) is not subject to any contingency, condition,
repayment or preference, and (3) does not require the Company to incur
any liability, contingent or otherwise, or to satisfy any obligation as
a condition thereof, plus (iv) to the extent that any Restricted
Investment that was made after the date hereof is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (A) the cash Net
Proceeds with respect to such Restricted Investment and (B) the initial
amount of such Restricted Investment, plus (iv) the principal amount of
the Company's Convertible Subordinated Notes outstanding on the date
hereof that are converted into Equity Interests of the Company in
accordance with their terms, plus (v) solely with respect to Restricted
Investments, $25.0 million.
The foregoing provisions shall not prohibit (t) 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; (u) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the proceeds of,
the substantially concurrent sale (other than to a Subsidiary of the Company) of
other Equity Interests of the Company (other than any
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Disqualified Stock); provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded (to the extent otherwise included) from clause
(c)(ii) of the preceding paragraph; (v) the defeasance, redemption or repurchase
of subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or 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 or other
acquisition shall be excluded (to the extent otherwise included) from clause
(c)(ii) of the preceding paragraph; (w) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or
any Restricted Subsidiary of the Company held by any present or former employee,
officer or director of the Company (or any of its Subsidiaries), or such
person's estate or estate beneficiary, pursuant to any equity subscription
agreement or stock option agreement in effect as of the date hereof, and as may
be entered into by the Company from time to time in the ordinary course of
business and consistent with the Company's past practice; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $2.0 million in any twelve-month period plus
the aggregate cash proceeds received by the Company during such twelve-month
period from any reissuance of Equity Interests by the Company to such persons,
and no Default or Event of Default shall have occurred and be continuing
immediately after such transaction; (x) the repurchase, redemption, retirement
or other acquisition of the Company's Convertible Subordinated Notes,
outstanding on the date hereof, plus accrued interest thereon; (y) the issuance
of Common Stock upon conversion of any of the Convertible Subordinated Notes in
accordance with the terms thereof as of the date hereof; and (z) conversion of
shares of the Company's Class A Common Stock into Class B Common Stock, and
conversion of shares of the Company's Class B Common Stock into Class A Common
Stock, each in accordance with the respective terms as approved by the Company's
shareholders and submitted to the Nasdaq Stock Market for approval as of the
date hereof.
The amount of all Restricted Payments (other than cash) shall
be the fair market value (evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee) on the date of
the Restricted Payment of the asset(s) proposed to be transferred by the Company
or such Subsidiary, as the case may be, pursuant to the Restricted Payment. Not
later than the date of making any Restricted Payment (other than Restricted
Payments permitted pursuant to the immediately 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 the first paragraph of this Section 4.07 were computed,
which calculations may be based upon the Company's latest available internal
financial statements.
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would
not cause a Default. For purposes of making such determination, all outstanding
Investments 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 Section 4.07. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the greatest of (x) the net book value of such Investments at the time
of such designation and (y) the fair market value of such Investments at the
time of such designation; provided that with respect to all Restricted
Subsidiaries engaged in the recorded music business ("Record Business Restricted
Subsidiaries") designated by the Board of Directors of the Company after the
date hereof as an Unrestricted Subsidiary, the aggregate of such amounts
determined in respect of Record Business Restricted Subsidiaries shall be
reduced by an amount equal to the Company's Investment in All American Music
Group, a California corporation, and Santa Monica Sound Recorders, Inc., a
California corporation, as of the date hereof, determined in accordance with the
immediately preceding clauses (x)
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and (y). Such 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.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES OF THE COMPANY.
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, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness and other agreements as in effect on the date hereof, (b) the Bank
Credit Agreement as in effect as of the date hereof, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are not materially more restrictive taken as a
whole with respect to such dividend and other payment restrictions than those
contained in the Bank Credit Agreement as in effect on the date hereof, (c) this
Indenture and the Notes, (d) applicable law, (e) 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 such Person, so acquired, provided that the Consolidated
Cash Flow of such Person may be taken into account in determining whether such
acquisition was permitted by the terms of this Indenture only to the extent that
the definition of "Consolidated Cash Flow" would have permitted such inclusion
for a Restricted Subsidiary, (f) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (g) 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, or (h)
Permitted Refinancing Indebtedness, provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are not
materially more restrictive taken as a whole than those contained in the
agreements governing the Indebtedness being refinanced.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, "incur") any Indebtedness
(including Acquired Debt) and that the Company shall not issue any Disqualified
Stock and shall not permit any of its Restricted Subsidiaries to issue any
shares of preferred stock or Disqualified Stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock, and any of the Company's Restricted Subsidiaries may incur
Indebtedness under the Bank Credit Agreement and Acquired Debt, if the Company's
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued (taken as one accounting period) would have
been greater than 2.0 to 1.0, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred (or Disqualified Stock issued) at the beginning
of such four-quarter period.
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The foregoing provisions shall not apply to:
(i) (a) the incurrence by the Company or its Restricted
Subsidiaries of Indebtedness under any Bank Credit Agreement, in an aggregate
principal amount at any one time outstanding not to exceed, together with all
amounts outstanding under clause (ii) below, an amount equal to $155.0 million
less the aggregate amount of all proceeds, if any, of all sales or other
dispositions of assets that have been applied since the date hereof to
permanently reduce the outstanding amount of Indebtedness under the Bank Credit
Agreement pursuant to Section 4.10 hereof and (b) the guarantee of such
Indebtedness by the Company and any of its Restricted Subsidiaries;
(ii) the incurrence by the Company or any of its Restricted
Subsidiaries of Securitized Financing Indebtedness in an aggregate amount at any
one time outstanding not to exceed, together with all amounts outstanding under
clause (i) above, an amount equal to $155.0 million less the aggregate amount of
all proceeds, if any, of all sales or other dispositions of assets that have
been applied since the date hereof to permanently reduce the outstanding amount
of Indebtedness under the Bank Credit Agreement pursuant to Section 4.10 hereof;
(iii) the incurrence by the Company of Indebtedness
represented by the Notes;
(iv) the incurrence by the Company or any of its
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund Indebtedness that was permitted by this Indenture to be incurred;
(v) the incurrence by the Company or any of its Wholly
Owned Restricted Subsidiaries of intercompany Indebtedness between or among the
Company and any of its Wholly Owned Restricted Subsidiaries, provided, however,
that (a) if the Company is the obligor on such Indebtedness, such Indebtedness
is expressly subordinate to the payment in full of all Obligations with respect
to the Notes and (b) other than with respect to Indebtedness of All American
Music Group, a California corporation, and Santa Monica Sound Recorders, Inc., a
California corporation, in an amount not exceeding such Indebtedness outstanding
as of the date hereof, (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person other
than the Company or a Wholly Owned Restricted Subsidiary and (2) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each case,
to constitute an incurrence of such Indebtedness by the Company or such Wholly
Owned Restricted Subsidiary, as the case may be;
(vi) the incurrence by any non-wholly owned Restricted
Subsidiary of intercompany Indebtedness between or among the Company and any of
its Restricted Subsidiaries, provided that, as to the Person who is the obligee
on such Indebtedness, the portion of such Investment equal to the minority
interest in such Restricted Subsidiary is permitted under Section 4.07 hereof
other than by virtue of the definition of Permitted Investments; and, provided
further, that (a) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinate to the payment in full of all Obligations
with respect to the Notes and (b) other than with respect to Indebtedness of All
American Music Group, a California corporation, and Santa Monica Sound
Recorders, Inc., a California corporation, in an amount not exceeding such
Indebtedness outstanding as of the date hereof, (1) any subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary and (2) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by such Restricted Subsidiary;
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(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by purchase money obligations 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 $3.0 million at any time outstanding;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging interest rate risk with respect to Indebtedness that is permitted by
the terms of this Indenture to be outstanding or for the purpose of fixing or
hedging currency exchange risk with respect to any currency exchanges; and
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other
clause of this paragraph) in an aggregate principal amount (or accreted value,
as applicable) at any time outstanding not to exceed $2.0 million.
Notwithstanding the foregoing, the Company's Unrestricted
Subsidiaries may incur 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.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, make any Asset Sale unless (i) the Company or such
Restricted Subsidiary receives consideration at the time of such disposition (or
in the case of a lease, over the term of such lease) at least equal to the fair
market value of the shares or assets disposed of (which shall be as determined
in good faith by the Board of Directors and evidenced by a Board Resolution set
forth in an Officer's Certificate delivered to the Trustee), and (ii) except in
the case of Permitted Non-Cash Asset Sale, at least 75% of the consideration for
such disposition consists of cash or Cash Equivalents; provided that the
following will be deemed to be cash for purposes of this covenant: (1) the
amount of any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the Company
or such Restricted Subsidiary (other than liabilities that are by their terms
subordinated 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, (2) any notes or other obligations
received by the Company or such Restricted Subsidiary from a transferee that are
immediately converted by the Company or such Restricted Subsidiary into cash or
Cash Equivalents, and (3) the fair market value of any assets into which the
proceeds, if cash, could have been reinvested as "assets related to the
Principal Business of the Company"; provided, further, that the 75% limitation
referred to above in clause (ii) shall not apply to any disposition of assets in
which the cash portion of such consideration received therefor on an after-tax
basis, determined in accordance with the foregoing proviso, is equal to or
greater than what the after-tax net proceeds would have been had such
transaction complied with the aforementioned 75% limitation.
Within 365 days of any Asset Sale, the Company may elect to (i)
apply the Net Proceeds from such Asset Sale to permanently redeem or repay
Senior Debt of the Company or any Restricted Subsidiary of the Company and in
each case to correspondingly reduce commitments with respect to such
Indebtedness, or (ii) apply the Net Proceeds from such Asset Sale to invest in
assets related to the Principal Business of the Company, including, without
limitation, the purchase of Equity Interests of an entity which, after giving
effect to such purchase, is a Restricted Subsidiary of the Company. Pending the
final application of any such Net Proceeds, the Company may temporarily invest
such Net Proceeds in
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any manner permitted by this Indenture. Any Net Proceeds from an Asset Sale not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds."
As soon as practical, but in no event later than 10 business
days after any date (an "Asset Sale Trigger Date") that the aggregate amount of
Excess Proceeds exceeds $10.0 million, the Company shall commence an Offer
(pursuant to and in accordance with Section 3.09 hereof) 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 and Special Interest thereon, if any,
to the date of purchase. To the extent that any Excess Proceeds remain after
completion of an Offer, the Company may use the remaining amount for general
corporate purposes. Upon completion of such Offer to purchase, the amount of
Excess Proceeds will be reset to zero.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, conduct any business or
enter into any transaction or series of similar transactions (including, without
limitation, the purchase, sale, transfer, lease or exchange of any property or
the rendering of any service) with (i) any direct or indirect holder of more
than 5% of any class of Capital Stock of the Company or of any Restricted
Subsidiary of the Company (other than transactions between or among the Company
and/or its Restricted Subsidiaries except for Restricted Subsidiaries owned in
any part by the Principal Shareholders) or (ii) any Affiliate of the Company
(other than transactions between or among the Company and/or its Restricted
Subsidiaries except for Restricted Subsidiaries owned in any part by the
Principal Shareholders) (each of the foregoing, a "Shareholder/Affiliate
Transaction") unless the terms of such business, transaction or series of
transactions (a) are set forth in writing and (b) are as favorable to the
Company or such Restricted Subsidiary in all material respects as terms that
would be obtainable at the time for a comparable transaction or series of
similar transactions in arm's-length dealings with a Person which is not such a
stockholder or Affiliate and, if such transaction or series of transactions
involves aggregate consideration greater than $5.0 million, then a majority of
the disinterested members of the Board of Directors shall in good faith
determine that the terms of such transaction comply with clauses (a) and (b)
above (evidenced by a Board Resolution set forth in an Officer's Certificate
delivered to the Trustee) or, as to any such transaction as an alternative to a
Board of Directors determination, the Company may obtain from an accounting,
appraisal or investment banking firm of national standing an opinion as to the
fairness, from a financial point of view and taking into account the standard in
clauses (a) and (b) above, of the transaction to the Company or Restricted
Subsidiary.
Notwithstanding the foregoing limitations, the following shall
not be deemed to be Shareholder/Affiliate Transactions: (i) any payment of money
or issuance of securities (or issuance of benefits, including indemnification)
by the Company or any Restricted Subsidiary pursuant to employment agreements
and arrangements and employee benefit plans in the ordinary course of business,
consistent with past practices and approved by a majority of the members of the
Board of Directors of the Company or such Restricted Subsidiary, or a committee
of such Board of Directors that is composed solely of two or more non-employee
directors (as such terms are defined in Rule 16b-3 under the Exchange Act), (ii)
reasonable payments and other benefits (including indemnification) provided to
directors for service on the Board of Directors of the Company or any Restricted
Subsidiary, including the reimbursement or advancement of out-of-pocket expenses
and directors' and officers' liability insurance, each as paid or incurred in
the ordinary course of business and consistence with past practice and (iii)
transactions between the Company and any Restricted Subsidiary, or between any
Restricted Subsidiary and another Restricted Subsidiary, each in the ordinary
course of business and consistent with past practice.
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SECTION 4.12. LIENS.
The Company shall not and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien upon any of their property or assets, now owned or
hereafter acquired (other than the Convertible Subordinated Notes), that secures
Obligations under any Indebtedness that is pari passu with or subordinated in
right of payment to the Notes unless all payments due under this Indenture and
the Notes are secured on an equal and ratable basis with the obligations so
secured until such time as such obligations are no longer secured by a Lien;
provided, that in any case involving a Lien securing Indebtedness which is
subordinated in right of payment to the Notes, such Lien is subordinated to the
Lien securing the Notes to the same extent that such subordinated Indebtedness
is subordinated to the Notes.
SECTION 4.13. LINE OF BUSINESS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any material respect in any business other than the
Principal Business.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 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 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 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right, at such Holder's option, subject to the terms and conditions set
forth in this Indenture, to require the Company to repurchase, and upon the
exercise of such right the Company shall repurchase, all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to an
Offer (as provided below), at a purchase price equal to 101.0% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Special Interest
thereon, if any, to the date of purchase, which date shall be no fewer than 30
nor more than 60 days from the date such notice is mailed. Within 30 days
following a Change of Control, the Company shall mail to each Holder of Notes at
such Holder's registered address a notice stating: (i) that an offer (an
"Offer") is being made pursuant to this Section 4.15 as a result of a Change of
Control, the length of time the Offer shall remain open, and the maximum
aggregate principal amount of Notes that will be accepted for payment pursuant
to such Offer, (ii) the purchase price, the amount of accrued and unpaid
interest and Special Interest, if any, as of the purchase date, and the purchase
date (which will be no earlier than 30 days or later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date")), (iii) the
circumstances and material facts regarding such Change of Control to the extent
known to the Company (including, but not limited to, information with respect to
pro forma and historical financial information after giving effect to such
Change of Control and information regarding the Person or Persons acquiring
control), (iv) that any Note not tendered will continue to accrue interest; (v)
that, unless the Company defaults in the payment of the Change of Control
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Payment, all Notes accepted for payment pursuant to the Offer shall cease to
accrue interest after the Change of Control Payment Date; (vii) that Holders
electing to have any Notes purchased pursuant to an 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; (viii) 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 (ix) 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 shall comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes in connection with a
Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful (i) accept for payment all Notes tendered pursuant to such
Offer, (ii) deposit with the Paying Agent the aggregate purchase price of all
Notes accepted for payment and any accrued and unpaid interest and Special
Interest, if any, on such Notes as of the Change of Control Payment Date, and
(iii) deliver or cause to be delivered to the Trustee all Notes tendered
pursuant to the Offer together with an Officer's Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. If less than all Notes tendered pursuant to any Offer are accepted for
payment by the Company for any reason, selection of the Notes to be purchased by
the Trustee will be in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, by lot or by such method as the Trustee shall deem fair
and appropriate; provided that Notes accepted for payment in part shall only be
purchased in integral multiples of $1,000. The Paying Agent shall promptly mail
to each Holder of Notes accepted for payment an amount equal to the purchase
price for such Notes plus any accrued and unpaid interest and Special Interest
thereon, if any, and the Trustee shall promptly authenticate and mail to such
Holder of Notes accepted for payment in part a new Note equal in principal
amount to any unpurchased portion of the Notes, and any Note not accepted for
payment in whole or in part shall be promptly returned to the Holder of such
Note. On and after a Change of Control Payment Date, interest will cease to
accrue on the Notes accepted for payment. The Company shall announce the results
of the Offer to Holders of the Notes on or as soon as practicable after the
Change of Control Payment Date.
SECTION 4.16. NO SENIOR SUBORDINATED DEBT.
Notwithstanding the provisions of Section 4.09 hereof, the Company
and its Restricted Subsidiaries shall not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is subordinate or
junior in right of payment to any Senior Debt and senior in any respect in right
of payment to the Notes.
SECTION 4.17. PREFERRED STOCK OF RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, issue any preferred stock, or permit any Person to own or hold
an interest in any preferred stock of any such Restricted Subsidiary, except for
(i) preferred stock outstanding as of the date hereof after giving effect to the
application of the proceeds of the Notes, (ii) stock issued to the Company or a
Wholly Owned
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Restricted Subsidiary of the Company and (iii) preferred stock existing at the
time such company becomes a Restricted Subsidiary.
ARTICLE 5
SUCCESSORS
SECTION 5.01. 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,
lease, 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, lease, 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 surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Notes
and this Indenture pursuant to a supplemental indenture in a form 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 (A) will have a
Consolidated Net Worth immediately after the transaction equal to or greater
than the Consolidated Net Worth of the Company immediately preceding the
transaction and (B) will, 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 (taken as one accounting period), be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof.
SECTION 5.02. 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 5.01 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 and Special Interest, if any, on
the Notes except in the case of a sale of all of the Company's assets that meets
the requirements of Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(i) the Company defaults in the payment of any interest,
including Special Interest, if any, upon any Note when it becomes
due and payable, and such default continues for a period of 30
days (whether or not prohibited by Article 10 hereof);
(ii) the Company defaults in the payment of the principal
of (or premium, if any, on) any Note at its Maturity (whether or
not prohibited by Article 10 hereof);
(iii) default in the payment of principal and interest
(whether or not prohibited by Article 10 hereof) on Notes required
to be purchased pursuant to an Offer to Purchase under Sections
3.09, 4.10 and 4.15 hereof when due and payable;
(iv) the Company fails to observe or perform any covenant
or condition on the part of the Company to be performed or
observed pursuant to Section 5.01 hereof;
(v) the Company defaults in the performance of, or
breaches, any other covenant or warranty of the Company in this
Indenture, and such default or breach continues for 60 days after
there has 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 principal amount of the outstanding
Notes a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default";
(vi) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the
Company or any Restricted Subsidiary of the Company (or the
payment of which is guaranteed by the Company or a Restricted
Subsidiary of the Company), whether such Indebtedness or guarantee
now exists or shall be created hereafter, if (a) either (1) such
default results from the failure to pay principal (and premium, if
any) upon expressed maturity of such Indebtedness (after the
expiration of any applicable grace period) or (2) as a result of
such default the maturity of such Indebtedness has been
accelerated prior to its expressed maturity and, (b) the principal
(and premium, if any) amount of such Indebtedness, together with
the principal (and premium, if any) amount of any other such
Indebtedness, with respect to which the principal (and premium, if
any) amount unpaid upon its expressed maturity (after the
expiration of any applicable grace period), or the maturity of
which has been so accelerated, aggregates $5.0 million or more;
(vii) 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 Subsidiary of the Company
and such judgment or judgments remain undischarged for a period
(during which execution shall not be effectively stayed, bonded,
or discharged) of 60 days, provided that the aggregate of all such
judgments (to the extent not paid or to be paid by insurance)
exceeds $5.0 million;
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(viii) the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law;
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a custodian of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become
due; or
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary
in an involuntary case;
(b) appoints a custodian of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken as whole, would constitute a Significant Subsidiary or
for all or substantially all of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary;
or
(c) orders the liquidation of the Company or any of
its Significant Subsidiaries or any group of 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 6.02. ACCELERATION.
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 immediately, provided, that so
long as any Indebtedness permitted to be incurred pursuant to the Bank Credit
Agreement shall be outstanding, such acceleration shall not be effective until
the earlier of (i) an acceleration of any such Indebtedness under the Bank
Credit Agreement or (ii) five business days after receipt by the Company of
written notice of such acceleration. Notwithstanding the foregoing, in the case
an Event of Default specified in clauses (viii) or (ix) of Section 6.01 hereof
occurs with respect to the Company, any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable without further action or
notice. Holders of the Notes may not enforce this Indenture or the Notes except
as provided in this Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding 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.
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In the case of any Event of Default occurring prior to April
4, 1998 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 3.07 hereof, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Notes.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, 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 6.04. WAIVER OF PAST DEFAULTS.
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 this Indenture, except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes or a
default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 6.05. 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 6.06. 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;
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(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 another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07. 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 and Special
Interest, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) 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 and premium, interest and Special Interest, if any, 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 6.09. 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 7.07 hereof. 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 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, interest and Special Interest, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, interest and Special Interest, if
any, 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 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the duties, rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee shall not be liable hereunder except for
such duties of the Trustee which shall be determined
solely by the express provisions of this Indenture and
the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions
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expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability whatsoever in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers hereunder. The Trustee shall be under no obligation to exercise
any of its duties under this Indenture at the request of any Holders, unless
such Holder shall have offered to the Trustee security or indemnity satisfactory
to it in its reasonable judgment against any loss, liability or expense that
might be incurred by it in compliance with such request or direction.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
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(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it in its reasonable judgment
against any loss, liability or expense that might be incurred by it in
compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in accordance with the requirements of the TIA, in the event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
(in the event such conflict arises after consummation of the Exchange Offer, or
if a Shelf Registration Statement has been filed, after such Shelf Registration
Statement has been declared effective by the SEC) or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
The Trustee in its capacity as Registrar hereunder, shall not
be charged with knowledge of the Applicable Procedures and may conclusively rely
that instructions and certificates presented to it are in accordance with such
Applicable Procedures in effecting transfers pursuant to Section 2.06 hereof.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of Notes (with
a copy to the Representative under the Bank Credit Agreement) a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest or Special Interest, if any, on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date hereof, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be
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transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and, if such report is prepared
after the Exchange Offer Registration Statement or the Shelf Registration
Statement has been declared effective by the SEC, filed with the SEC and each
stock exchange, if any, on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee upon demand from time to
time reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(viii) or (ix) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
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The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company (with a
copy to the agent under the Bank Credit Agreement). The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing (with a copy to
the agent under the Bank Credit Agreement). The Company may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10.0% in principal amount of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company (with a copy to the agent
under the Bank Credit Agreement). Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of the Notes
(with a copy to the agent under the Bank Credit Agreement). The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, provided all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or
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state authorities and that has or has a corporate parent that has a
combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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 8.
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, if any, interest and Special Interest, if any, 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 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8. Subject to
compliance with this Article 8, the Company may exercise its option under this
Section 8.02 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 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(iv) hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes
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shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 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
8.01 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
6.01(iii) through 6.01(vii) 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 of Notes, cash in
U.S. 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, if any, and interest and Special Interest,
if any, on the outstanding Notes on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(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 hereof,
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;
(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 borrowing of funds to be applied to
such deposit) or insofar as Sections 6.01(viii) or 6.01(ix) hereof are
concerned, at any time in the period ending on the 91st day after the
date of deposit;
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(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 Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries is bound
and is permitted under the subordination provisions of this Indenture;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that after 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 of Notes over any
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others;
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 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, 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 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or 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 and
premium, if any, interest or Special Interest, if any, on any Note and remaining
unclaimed for two years after such principal and premium, if any,
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interest or Special Interest, if any, has become due and payable shall be paid
to the Company on its 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 written request and 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.
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 and premium, if any, interest or Special
Interest, if any, on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation
pursuant to Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Note;
or
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this
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Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, this Indenture
or the Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental Indenture unless such amended or 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 amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Neither the Company nor any of its Restricted 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.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected, an amendment or waiver may not (with respect to any Notes
held by a non-consenting Holder):
(i) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to
the redemption of the Notes in a manner adverse to the
Holders (except as provided in Sections 3.09, 4.10 and 4.15
hereof);
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(iii) reduce the rate of or change the time for payment
of interest on any Note;
(iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, interest or
Special Interest, if any, on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a
waiver of the payment default that resulted from such
acceleration);
(v) make any Note payable in money other than that
stated in the Notes;
(vi) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights
of Holders of Notes to receive payments of principal of or
premium, if any, interest or Special Interest, if any, on the
Notes;
(vii) waive a redemption payment with respect to any
Note (other than a payment as required by Section 3.07
hereof); or
(viii) make any change in the foregoing amendment and
waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officer's
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Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder of Notes by accepting a
Note agrees, that the payment of principal of, and premium, if any, interest and
Special Interest, if any, on the Notes (including, without limitation, by
redemption or purchase of any Notes as provided by Sections 3.07, 4.10 and 4.15
hereof) will be subordinated in right of payment, as set forth in this Article,
to the prior indefeasible payment in full in cash of all Senior Debt, whether
outstanding on the date hereof or thereafter incurred.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities:
(1) the holders of Senior Debt shall be entitled to receive
payment in full in cash of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt) before the Holders of Notes shall be
entitled to receive any payment with respect to the Notes (except that all
Holders of Notes may receive (i) securities that are subordinated to at least
the same extent as the Notes to (a) Senior Debt and (b) any securities issued in
exchange for Senior Debt and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full in cash, any distribution to
which Holders of Notes would be entitled but for this Article shall be made to
holders of Senior Debt (except that Holders of Notes may receive securities that
are subordinated to at least the same extent as the Notes to (a) Senior Debt and
(b) any securities issued in exchange for Senior Debt), as their interests may
appear. A distribution may consist of cash, securities or other property, by
set-off or otherwise.
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT
The Company may not make any payment or distribution to the
Trustee or any Holder of Notes in respect of Obligations with respect to the
Notes or a payment into any defeasance trust created pursuant to Section 8.01
hereof, and may not acquire from the Trustee or any Holder of Notes any Notes
for cash or property (other than (i) securities that are subordinated to at
least the same extent as the Notes to (a) Senior Debt and (b) any securities
issued in exchange for Senior Debt and (ii) payments and other distributions
made from any defeasance trust created pursuant to Section 8.01 hereof) until
all principal and other Obligations with respect to the Senior Debt have been
paid in full if:
(i) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement,
indenture or other document governing such Designated Senior Debt; or
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(ii) a default, other than a payment default, on Designated
Senior Debt occurs and is continuing that then permits holders of the
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of such default (a "Payment Blockage Notice") from
the holders of any Designated Senior Debt, which, in the case of the
Bank Credit Agreement, may be given by the Representative for the
lenders thereunder. If the trustee receives any such Payment Blockage
Notice, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until at least 360 days have
elapsed since the effectiveness of the immediately prior Payment
Blockage Notice. No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee
shall be, or be made, the basis for a subsequent Payment Blockage
Notice unless such default shall have been waived for a period of not
less than 90 days.
The Company may and shall resume payments on and distributions
in respect of the Notes and may acquire them upon the earlier of:
(1) the date upon which the default is cured or waived or
otherwise ceases to exist, or
(2) in the case of a non-payment default referred to in
clause (ii) above, the passage of 179 days after notice is received if
the maturity of such Designated Senior Debt has not been accelerated,
if this Article otherwise permits the payment, distribution or
acquisition at the time of such payment or acquisition.
SECTION 10.04. ACCELERATION OF NOTES
If payment of the Notes is accelerated because of an Event of
Default, the Trustee shall promptly notify the Representative for the Senior
Debt of the acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER
In the event that the Trustee or any Holder receives any
payment of any Obligations with respect to the Notes at a time when such payment
is prohibited under the terms of this Indenture, such payment shall be held by
the Trustee or such Holder, in trust for the benefit of, and shall be paid
forthwith over and delivered to the holders of Senior Debt as their interests
may appear or their Representative under the Bank Credit Agreement, indenture or
other agreement (if any) pursuant to which Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any payment or distribution to or for the holders of Senior Debt made
concurrently with such payment received by the Trustee or such Holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders of Notes or the Company or any other Person money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article 10, except if
such payment is made as a result of the willful misconduct or gross negligence
of the Trustee.
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SECTION 10.06. NOTICE BY COMPANY
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article.
SECTION 10.07. SUBROGATION
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior Debt
that otherwise would have been made to Holders is not, as between the Company
and Holders, a payment by the Company on the Notes.
SECTION 10.08. RELATIVE RIGHTS
This Article defines the relative rights of Holders of Notes
and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Notes
in accordance with their terms;
(2) affect the relative rights of Holders and creditors
of the Company other than their rights in relation to holders
of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising
its available remedies upon a Default or Event of Default,
subject to the rights of holders of Senior Debt to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal
of or interest on a Note on the due date, the failure is still a Default or
Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
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SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article. Only a Representative may
give the notice. Nothing in this Article 10 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, the Representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
SECTION 10.13. AMENDMENTS
The provisions of this Article 10 shall not be amended or
modified without the written consent of a majority of holders of all Senior Debt
(to the extent required pursuant to the terms of such Senior Debt).
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section318(c), the imposed duties shall
control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
All American Communications, Inc.
808 Wilshire Boulevard
Santa Monica, CA 90401
Telecopier No.: (310) 656-7411
Attention: Chief Financial Officer
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<PAGE> 70
With a copy to:
Kaye, Scholer, Fierman, Hays and Handler, LLP
1999 Avenue of the Stars
Suite 1600
Los Angeles, CA 90067
Telecopier No.: (310) 788-1200
Attention: Barry Dastin, Esq.
If to the Trustee:
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Telecopier No.: (213) 488-1370
Attention: Ms. Sandee Parks
Notice by the Trustee to the Representative under the Bank
Credit Agreement provided for herein shall be delivered or mailed to The Chase
Manhattan Bank, 270 Park Avenue, New York, New York 10017-2070, Attention: John
J. Huber with a copy to Chase Securities Inc., 1800 Century Park East, Suite
400, Los Angeles, California 90067, Attention: Entertainment Industries Group,
Christa L. Thomas and to any other person who hereafter becomes an agent under
the Bank Credit Agreement, provided the Trustee has been notified by the Company
or the agent of the names and mailing addresses of such persons.
The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
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SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Notes, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the
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consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public policy.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page.]
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SIGNATURES
Dated as of October 11, 1996 ALL AMERICAN COMMUNICATIONS, INC.
By: /s/ Thomas Bradshaw
--------------------------------
Name: Thomas Bradshaw
Title: Chief Financial Officer
(SEAL)
Dated as of October 11, 1996 U.S. TRUST COMPANY OF CALIFORNIA, N.A.
By: /s/ Sandee Parks
-----------------------------------
Name: Sandee Parks
Title: Vice President
(SEAL)
<PAGE> 74
Exhibit A-1
(Face of Note)
10 7/8% [Series A] [Series B] Senior Subordinated Notes due 2001
No. $__________
ALL AMERICAN COMMUNICATIONS, INC.
promises to pay to ________________________________________________________
or registered assigns, the principal sum of _______________________________
Dollars on _________ __, 2001.
Interest Payment Dates: April 15, and October 15
Record Dates: April 1, and October 1
Dated: October 11, 1996
ALL AMERICAN COMMUNICATIONS, INC.
By__________________________
Name:
Title:
(SEAL)
This is one of the
Notes referred to in the
within-mentioned Indenture:
U.S. TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:__________________________________
A-1-1
<PAGE> 75
(Back of Note)
10 7/8% [Series A] [Series B] Senior Subordinated Notes due 2001
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1/
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON
WHOM SUCH INVESTOR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS AS SET
FORTH IN (A) ABOVE OR TO INSTITUTIONAL ACCREDITED INVESTORS IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. All American Communications, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 10 7/8% per annum from
------------------------
1. This paragraph should be included only if the Note is issued in global form.
A-1-2
<PAGE> 76
October 11, 1996 until October 15, 2001 and shall pay the Special Interest, if
any, payable pursuant to Section 5 of the Registration Rights Agreement referred
to below. The Company shall pay interest and Special Interest, if any,
semi-annually in arrears on April 15 and October 15 of each 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 April 15, 1997. 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 equal to the per annum rate on the Notes then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest, if
any, (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall make payments in respect
of the Notes represented by the Global Notes (including principal, premium,
interest and Special Interest, if any) by wire transfer of immediately available
funds to the accounts specified by the Global Note custodian. With respect to
Notes issued in definitive form, the Company shall make all payments of
principal, premium, interest and Special Interest, if any, by mailing a check to
each such Holder's registered address, provided that all payments with respect
to Notes having an aggregate principal amount of $100,000 or more, the Holders
of which have given wire transfer instructions to the Company at least ten
business days prior to the applicable payment date, will be required to be made
by wire transfer of immediately available funds to the accounts specified by the
Holders thereof. Except for trades involving only Euroclear or CEDEL
participants, the Notes represented by the Global Notes are expected to be
eligible to trade in DTC's Same-Day Funds Settlement System, and any permitted
secondary market trading activity in such notes will, therefore, be required by
DTC to be settled in immediately available funds. The Company expects that
secondary trading in the Definitive Notes also will be settled in immediately
available funds.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Trust Company of
California, N.A., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Notes may be presented for registration of transfer and exchange
at the offices of the 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 October 11, 1996 ("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 SectionSection 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are obligations of the Company limited to $100.0 million in
aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in paragraph (b) of this Paragraph 5, the
Notes are not redeemable at the Company's option prior to stated maturity.
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(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, in the event (a "Sale Transaction Triggering Event") that, prior to
April 4, 1998, the Company enters into a letter of intent or makes a public
announcement during the first 18 months after the date of this Offering Circular
with respect to the sale of all of the Company's capital stock (whether by
merger, consolidation or otherwise), or all or substantially all of the
Company's assets (a "Sale Transaction"), the Company may, subsequent to the
closing of such Sale Transaction, redeem up to $100.0 million in principal
amount of Notes at a redemption price of 110.875% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, thereon
to the redemption date, provided that such Sale Transaction closes within 120
days after such Sale Transaction Triggering Event and, provided further, that
notice of such redemption shall be given within 30 days of the date of the
closing of such Sale Transaction. In addition, any time prior to April 4, 1998,
the Company may redeem up to $35.0 million in principal amount of Notes at a
redemption price of 110.875% of the principal amount thereof, plus accrued and
unpaid interest and Special Interest, if any, thereon to the redemption date,
with the net proceeds of a public offering of common stock of the Company,
provided that at least $65.0 million in aggregate principal amount of Notes
remain outstanding immediately after the occurrence of such redemption and,
provided further, that notice of such redemption shall be given within 30 days
of the date of the closing of such public offering.
(c) Any redemption pursuant to this paragraph shall be made
pursuant to the provisions of Section 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) 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 101.0% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest thereon, if any, to the date of
purchase, which date shall be no fewer than 30 and no more than 60 days from the
date such notice is mailed (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. Such right to require the repurchase of Notes shall not
continue after discharge of the Company from its obligations with respect to the
Notes. The Company's board of directors may not waive this provision.
(b) As soon as practical, but in no event later than 10 business
days after any date (an "Asset Sale Trigger Date") that the aggregate amount of
Excess Proceeds exceeds $10.0 million, the Company shall commence an Offer (as
described under Section 4.10 of the 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 and Special Interest thereon, if any, to the date of
purchase. To the extent that any Excess Proceeds remain after completion of an
Offer, the Company may use the remaining amount for general corporate purposes.
If the aggregate principal 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
A-1-4
<PAGE> 78
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. Upon completion of such Offer to purchase, the
amount of Excess Proceeds will be reset to zero.
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 may be
redeemed in part but only in whole multiples of $1,000. 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 minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
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, 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, 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 principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
Definitive Notes in addition to or in place of uncertificated 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, or 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. An Event of Default occurs if: (i) the
Company defaults in the payment of any interest, including Special Interest, if
any, upon any Note when it becomes due and payable, and such default continues
for a period of 30 days (whether or not prohibited by Article 10 of the
Indenture); (ii) the Company defaults in the payment of the principal of (or
premium, if any, on) any Note at its Maturity (whether or not prohibited by
Article 10 of the Indenture); (iii) the Company defaults in the payment of
principal, interest or Special Interest, if any, (whether or not prohibited by
Article 10 of the Indenture) on Notes required to be purchased pursuant to an
Offer to Purchase under Sections 3.09, 4.10 and 4.15 of the Indenture when due
and payable; (iv) the Company fails to observe or perform any covenant or
condition on the part of the Company to be performed or observed pursuant to
Section 5.01 of the Indenture; (v) the Company defaults in the performance of,
or breaches, any other covenant or warranty of the Company in the Indenture and
such default or breach continues for 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the
A-1-5
<PAGE> 79
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Notes a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"; (vi) a default
occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any Restricted Subsidiary of the Company (or the
payment of which is guaranteed by the Company or a Restricted Subsidiary of the
Company), whether such Indebtedness or guarantee now exists or shall be created
hereafter, if (a) either (1) such default results from the failure to pay
principal (and premium, if any) upon expressed maturity of such Indebtedness
(after the expiration of any applicable grace period) or (2) as a result of such
default the maturity of such Indebtedness has been accelerated prior to its
expressed maturity and, (b) the principal (and premium, if any) amount of such
Indebtedness, together with the principal (and premium, if any) amount of any
other such Indebtedness, with respect to which the principal (and premium, if
any) amount unpaid upon its expressed maturity (after the expiration of any
applicable grace period), or the maturity of which has been so accelerated,
aggregates $5.0 million or more; (vii) 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 Subsidiary of the Company and such judgment or
judgments remain undischarged for a period (during which execution shall not be
effectively stayed, bonded, or discharged) of 60 days, provided that the
aggregate of all such judgments (to the extent not paid or to be paid by
insurance) exceeds $5.0 million; or (viii) the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law: (a) commences a voluntary case, (b) consents to the entry of an
order for relief against it in an involuntary case, (c) consents to the
appointment of a custodian of it or for all or substantially all of its
property, (d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due; or (ix) a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case, (b) appoints a custodian of the Company or
any of its Significant Subsidiaries or any group of Subsidiaries that, taken as
whole, would constitute a Significant Subsidiary or for all or substantially all
of the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
or (c) orders the liquidation of the Company or any of its Significant
Subsidiaries or any group of 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. 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
immediately, provided, that so long as any Indebtedness permitted to be incurred
pursuant to the Bank Credit Agreement shall be outstanding, such acceleration
shall not be effective until the earlier of (i) an acceleration of any such
Indebtedness under the Bank Credit Agreement or (ii) five business days after
receipt by the Company of written notice of such acceleration. Notwithstanding
the foregoing, in the case an Event of Default specified in clauses (viii) or
(ix) of Section 6.01 of the Indenture occurs with respect to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and
payable without further action or notice. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding 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. In the case of any Event of Default occurring prior to
April 4, 1998, 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
A-1-6
<PAGE> 80
Company then had elected to redeem the Notes pursuant to Section 3.07 of the
Indenture, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Notes. 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 or a default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected.
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 ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED
SECURITIES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement dated as of October 11, 1996,
between the Company and the parties named on the signature pages thereof.
18. 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.
A-1-7
<PAGE> 81
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
All American Communications, Inc.
808 Wilshire Boulevard
Santa Monica, CA 90401
Attention: Chief Financial Officer
A-1-8
<PAGE> 82
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.
A-1-9
<PAGE> 83
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the 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.
A-1-10
<PAGE> 84
SCHEDULE OF EXCHANGES OF NOTES(2/)
The following exchanges of a part of this Global Note
for other Notes have been made:
<TABLE>
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of Signature of
- ---------------- Principal Amount of Principal Amount of this Global Note authorized officer
this Global Note this Global Note following such of Trustee or Note
---------------- ---------------- decrease (or increase) Custodian
---------------------- ---------
<S> <C> <C> <C> <C>
</TABLE>
- ----------
2. This should be included only if the Note is issued in global form.
A-1-11
<PAGE> 85
- --------------------------------------------------------------------------------
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
- --------------------------------------------------------------------------------
10 7/8% Series A Notes due 2001
No. $_________
ALL AMERICAN COMMUNICATIONS, INC.
promises to pay to ______________________________________________________ or
registered assigns, the principal sum of ___________________________________
Dollars on _________ ___, 2001.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Dated: October 11, 1996
ALL AMERICAN COMMUNICATIONS, INC.
By ____________________________
Name:
Title:
This is one of the
Notes referred to
in the within-mentioned Indenture: (SEAL)
U.S. TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:__________________________________
A-2-1
<PAGE> 86
(Back of Regulation S Temporary Global Note)
10 7/8% Series A Note due 2001
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
BY THE INITIAL INVESTOR (1) TO A PERSON WHOM SUCH INVESTOR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) BY
SUBSEQUENT INVESTORS AS SET FORTH IN (A) ABOVE OR TO INSTITUTIONAL
ACCREDITED INVESTORS IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON.
A-2-2
<PAGE> 87
Subject to the provisions hereof, All American Communications, Inc., a
Delaware corporation, (the "Company"), promises to pay to _____________ the
principal sum of ___________________ UNITED STATES DOLLARS (U.S. $___________)
on _______ ___, 2001, and to pay interest on the principal amount of this Note
beginning October 11, 1996 at the rate of 10 7/8% per annum. Upon exchange of
this Regulation S Temporary Global Note for a Regulation S Permanent Global Note
as set forth below, interest shall be payable in cash semi-annually in arrears
on April 15 and October 15, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "Interest Payment Date"); provided that
the first Interest Payment Date shall be April 15, 1997. 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 original issuance. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
This Regulation S Temporary Global Note is issued in respect of an
issue of 10 7/8% Notes due 2001 (the "Notes") of the Company, limited to the
aggregate principal amount of U.S. $100,000,000 issued pursuant to an Indenture
(the "Indenture") dated as of October 11, 1996, among the Company, and U.S.
Trust Company of California, N.A., as trustee (the "Trustee"), and is governed
by the terms and conditions of the Indenture governing the Notes, which terms
and conditions are incorporated herein by reference and, except as otherwise
provided herein, shall be binding on the Company and the Holder hereof as if
fully set forth herein. Unless the context otherwise requires, the terms used
herein shall have the meanings specified in the Indenture.
Until this Regulation S Temporary Global Note is exchanged for a
Regulation S Permanent Global Note, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full, this Regulation
S Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Regulation S Permanent Global Notes or U.S. Global Notes
only (i) on or after the termination of the 40-day restricted period (as defined
in Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Regulation S
Permanent Global Notes or U.S. Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Regulation
S Temporary Global Note shall be governed by and construed in accordance with
the laws of the State of the New York. All references to "$," "Dollars,"
"dollars" or "U.S. $" are to such coin or currency of the United States of
America as at the time shall be legal tender for the payment of public and
private debts therein.
A-2-3
<PAGE> 88
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary Global
Note for other Global Notes have been made:
- --------------------------------------------------------------------------------
<TABLE>
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of Signature of
- ---------------- Principal Amount of Principal Amount of this Global Note authorized officer
this Global Note this Global Note following such of Trustee or Note
---------------- ---------------- decrease (or increase) Custodian
---------------------- ---------
<S> <C> <C> <C> <C>
</TABLE>
- --------------------------------------------------------------------------------
A-2-4
<PAGE> 89
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM U.S. GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Attention: Corporate Trust Division
Re: 10 7/8% [Series A] [Series B] Notes due 2001 of All American
Communications, Inc.
Reference is hereby made to the Indenture, dated as of October 11, 1996
(the "Indenture"), among All American Communications, Inc., as issuer (the
"Company"), and U.S. Trust Company of California, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more (check one) / / Rule 144A Global Notes (CUSIP No.
__________) or / / Accredited Institutional Investor Global Notes (CUSIP No.
_____) and held with the Depositary in the name of ____________________________
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Regulation S Global
Notes (CUSIP No. _________), which amount, immediately after such transfer, is
to be held with the Depositary through Euroclear or Cedel Bank or both (Common
Code _________________).
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
hereby further certifies that:
(1) The offer of the Notes was not made to a person in the United States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
B-1-1
<PAGE> 90
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel Bank or both (Common Code _________).
Upon giving effect to this request to exchange a beneficial
interest in such Rule 144A Global Note or Accredited Institutional Investor
Global Note for a beneficial interest in a Regulation S Global Note, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to Regulation S Global Notes pursuant to the Indenture and the
Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Notes, the additional
restrictions applicable to transfers of interest in the Regulation S Temporary
Global Note.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Goldman, Sachs & Co. and Chase
Securities Inc. (collectively, the "Initial Purchasers"), the Initial Purchasers
of such Notes being transferred. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
___________________________________
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated: _______________, ___
cc: All American Communications, Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
B-1-2
<PAGE> 91
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE OR
ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Attention: Corporate Trust Division
Re: 10 7/8% [Series A] [Series B] Notes due 2001 of All American
Communications, Inc.
Reference is hereby made to the Indenture, dated as of October 11, 1996
(the "Indenture"), among All American Communications, Inc., as issuer (the
"Company"), and U.S. Trust Company of California, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more Regulation S Global Notes (CUSIP No. __________) and
held with the Depositary through Euroclear or Cedel Bank or both (Common Code
___________________) in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more (check one) / / Rule
144A Global Notes (CUSIP No. _________) or / / Accredited Institutional Investor
Global Note (CUSIP No. __________), to be held with the Depositary.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that:
[CHECK ONE]
/ / such transfer is being effected pursuant to and in accordance
with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Notes are being transferred to
a Person that the Transferor reasonably believes is purchasing
the Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A;
or
B-2-1
<PAGE> 92
/ / such transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
/ / such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A or Rule 144, and the Transferor hereby further certifies
that the Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial
interest in Regulation S Global Notes for a beneficial interest in Rule 144A
Global Notes or Accredited Institutional Investor Global Notes, as the case may
be, the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Rule 144A Global Notes or Accredited Institutional
Investor Global Notes, as the case may be, pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Goldman, Sachs & Co. and Chase
Securities Inc. (collectively, the "Initial Purchasers"), the Initial Purchasers
of such Notes being transferred. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
___________________________
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated: _____________, _____
cc: All American Communications, Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
B-2-2
<PAGE> 93
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR ACCREDITED INSTITUTIONAL INVESTOR
GLOBAL NOTE TO ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
OR RULE 144A GLOBAL NOTE, RESPECTIVELY
(Pursuant to Section 2.06(a)(iii) of the Indenture)
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Attention: Corporate Trust Division
Re: 10 7/8% [Series A] [Series B] Notes due 2001 of All American
Communications, Inc.
Reference is hereby made to the Indenture, dated as of October 11, 1996
(the "Indenture"), among All American Communications, Inc., as issuer (the
"Company"), and U.S. Trust Company of California, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more (check one) / / Rule 144A Global Notes (CUSIP No.
__________) or / / Accredited Institutional Investor Global Notes (CUSIP No.
__________) and held with the Depositary in the name of
____________________________ (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in such Notes to a Person who will take
delivery thereof in the form of an equal principal amount of Notes evidenced by
one or more (check one) / / Rule 144A Global Notes (CUSIP No. _________) or / /
Accredited Institutional Investor Global Notes (CUSIP No. __________), to be
held with the Depositary.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that:
[CHECK ONE]
/ / such transfer is being effected pursuant to and in accordance
with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Notes are being transferred to
a Person that the Transferor reasonably believes is purchasing
the Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A;
or
B-3-1
<PAGE> 94
/ / such transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
/ / such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A or Rule 144, and the Transferor hereby further certifies
that the Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial
interest in Rule 144A Global Notes or Accredited Institutional Investor Global
Notes for a beneficial interest in Accredited Institutional Investor Global
Notes or Rule 144A Global Notes, as the case may be, the resulting beneficial
interest shall be subject to the restrictions on transfer applicable to Rule
144A Global Notes or Accredited Institutional Investor Global Notes, as the case
may be, pursuant to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Goldman, Sachs & Co. and Chase
Securities Inc. (collectively, the "Initial Purchasers"), the Initial Purchasers
of such Notes being transferred. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
___________________________
[Insert Name of Transferor]
By: _______________________
Name:
Title:
Dated: _____________, _____
cc: All American Communications, Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
B-3-2
<PAGE> 95
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE NOTES
(Pursuant to Section 2.06(b) of the Indenture)
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Attention: Corporate Trust Division
Re: 10 7/8% [Series A] [Series B] Notes due 2001 of All American
Communications, Inc.
Reference is hereby made to the Indenture, dated as of October 11, 1996
(the "Indenture"), among All American Communications, Inc., as issuer (the
"Company"), and U.S. Trust Company of California, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more Definitive Notes (CUSIP No. __________) and registered
with the Registrar in the name of ____________________________ (the
"Transferor"). The Transferor has requested an exchange or transfer of such
Definitive Note(s) in the form of an equal principal amount of Notes evidenced
by one or more Definitive Notes (CUSIP No. __________), to be delivered to the
Transferor or, in the case of a transfer of such Notes, to such Person as the
Transferor instructs the Trustee.
In connection with such request and in respect of the Notes surrendered
to the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of
such Surrendered Notes hereby certifies that:
[CHECK ONE]
/ / the Surrendered Notes are being acquired for the Transferor's own
account, without transfer;
or
/ / the Surrendered Notes are being transferred to the Company;
or
/ / the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes
are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account,
or for one or more accounts with respect to which such Person
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exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in each case in a transaction meeting the
requirements of Rule 144A;
or
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A or Rule 144, and the Transferor hereby further certifies
that the Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and Goldman, Sachs & Co. and Chase Securities
Inc. (collectively, the "Initial Purchasers"), the Initial Purchasers of such
Notes being transferred. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under the
Securities Act.
___________________________
[Insert Name of Transferor]
By: _______________________
Name:
Title:
Dated: _____________, _____
cc: All American Communications, Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
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<PAGE> 97
EXHIBIT B-5
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM RULE 144A
GLOBAL NOTE, ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE OR
REGULATION S PERMANENT GLOBAL NOTE TO DEFINITIVE NOTE
(Pursuant to Section 2.06(c) of the Indenture)
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Attention: Corporate Trust Division
Re: 10 7/8% [Series A] [Series B] Notes due 2001 of All American
Communications, Inc.
Reference is hereby made to the Indenture, dated as of October 11, 1996
(the "Indenture"), among All American Communications, Inc., as issuer (the
"Company"), and U.S. Trust Company of California, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more (check one) / / Rule 144A Global Notes (CUSIP No.
__________) or / / Accredited Institutional Investor Global Notes (CUSIP No.
_____) or / / Regulation S Permanent Global Notes (CUSIP No. _________) and held
with the Depositary through Euroclear or Cedel Bank or both in the name of
____________________________ (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Notes to a Person who will take
delivery thereof in the form of an equal principal amount of Notes evidenced by
one or more Definitive Notes (CUSIP No. _____), to be registered with the
Registrar in the name of ____________.
In connection with such request and in respect of the Notes surrendered
to the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of
such Surrendered Notes hereby certifies that:
[CHECK ONE]
/ / the Surrendered Notes are being transferred to the beneficial
owner of such Notes;
or
/ / the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes
are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account,
or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each
such account is a "qualified
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<PAGE> 98
institutional buyer" within the meaning of Rule 144A, in each
case in a transaction meeting the requirements of Rule 144A;
or
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A or Rule 144, and the Transferor hereby further certifies
that the Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Goldman, Sachs & Co. and Chase
Securities Inc. (collectively, the "Initial Purchasers"), the Initial Purchasers
of such Notes being transferred. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
___________________________
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: _____________, _____
cc: All American Communications, Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
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EXHIBIT B-6
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM
DEFINITIVE NOTE TO RULE 144A GLOBAL NOTE, ACCREDITED INSTITUTIONAL INVESTOR
GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE
(Pursuant to Section 2.06(e) of the Indenture)
U.S. Trust Company of California, N.A.
515 S. Flower Street
Suite 2700
Los Angeles, CA 90071
Attention: Corporate Trust Division
Re: 10 7/8% [Series A] [Series B] Notes due 2001 of All American
Communications, Inc.
Reference is hereby made to the Indenture, dated as of October 11, 1996
(the "Indenture"), among All American Communications, Inc., as issuer (the
"Company"), and U.S. Trust Company of California, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_______ principal amount of Notes which are
evidenced by one or more Definitive Notes (CUSIP No. _________) and registered
with the Registrar in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such Definitive Notes
to a Person who will take delivery thereof in the form of an equal beneficial
interest in Global Notes evidenced by one or more (check one) / / Rule 144A
Global Notes (CUSIP No. __________) or / / Accredited Institutional Investor
Global Notes (CUSIP No. _____) or / / Regulation S Permanent Global Notes (CUSIP
No. _________), which amount, immediately after such transfer, is to be held
with the Depositary through Euroclear or Cedel Bank or both (Common Code
_________________).
In connection with such request and in respect of the Notes surrendered
to the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of
such Surrendered Notes hereby certifies that:
[CHECK ONE]
/ / the Surrendered Notes are being transferred to the beneficial
owner of such Notes;
or
/ / the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes
are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account,
or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each
such account is a "qualified
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<PAGE> 100
institutional buyer" within the meaning of Rule 144A, in each
case in a transaction meeting the requirements of Rule 144A;
or
/ / the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A or Rule 144, and the Transferor hereby further certifies
that the Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
or
/ / such transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act, and
accordingly the Transferor hereby further certifies that:
(1) The offer of the Notes was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed and believes that the transferee
was outside the United States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with
a buyer in the United States;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
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(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary through Euroclear or Cedel Bank or both (Common
Code ____________).
Upon giving effect to this request to exchange a Definitive Note
for a beneficial interest in such Rule 144A Global Note,
Accredited Institutional Investor Global Note or Regulation S
Global Note, the resulting beneficial interest shall be subject
to the restrictions on transfer applicable to Global Notes
pursuant to the Indenture and the Securities Act and, if such
transfer occurs prior to the end of the 40-day restricted period
associated with the initial offering of Notes, the additional
restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Goldman, Sachs & Co. and Chase
Securities Inc. (collectively, the Initial Purchasers), the Initial Purchasers
of such Notes being transferred. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
___________________________
[Insert Name of Transferor]
By: _______________________
Name:
Title:
Dated: _____________, _____
cc: All American Communications, Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
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[LOGO]
EXHIBIT 99
[JAFFONI & COLLINS LETTERHEAD]
CONTACT:
Thomas Bradshaw Joseph N. Jaffoni, David C. Collins
Chief Financial Officer Jaffoni & Collins Incorporated
310/656-1100 212/505-3015 or [email protected]
FOR IMMEDIATE RELEASE
ALL AMERICAN COMMUNICATIONS COMPLETES $100 MILLION
10-7/8% SENIOR SUBORDINATED NOTES OFFERING
Santa Monica, CA (October 11, 1996)--All American Communications, Inc. (Nasdaq:
AACI and AACIB) announced today that it completed a private institutional
placement of $100 million principal amount 10-7/8% Senior Subordinated Notes
due 2001.
All American Communications, Inc. is a diversified worldwide entertainment
company with operations in television and recorded music production and
distribution. All American produces and/or distributes more than 100 shows in
29 countries. Its programming includes the Baywatch franchise, and
internationally, local game shows including The Price is Right, Family Feud and
Let's Make a Deal.
Notices: This press release does not constitute the offer or sale of any
securities described herein. Any such securities have not been registered under
the Securities Act of 1933, as amended, or any such securities have not been
registered under the Securities Act of 1933, as amended, or any such securities
law and may not be offered or sold in the United States absent registration or
an applicable exemption from such registration requirements.
