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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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 17, 1996 (OCTOBER 9,
1996)
OUTDOOR SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-28256 86-0736400
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2502 NORTH BLACK CANYON HIGHWAY, PHOENIX, ARIZONA 85009
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (602) 246-9569
NOT APPLICABLE
(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS
On October 9, 1996, the Registrant announced the public offering of
$240 million principal amount of its 9 3/8% Senior Subordinated Notes due 2006
(the "Notes") and an over-allotment option to purchase up to an additional $10
million principal amount of Notes exercisable within thirty (30) days, subject
to certain conditions. The terms and conditions of the Notes will be governed by
that certain Indenture dated as of October 15, 1996 (the "Indenture") by and
among the Registrant, its United States subsidiaries and The Bank of New York,
as Trustee. A copy of the Indenture in the form executed is attached as Exhibit
99.1 to this Report and is incorporated by reference herein.
CIBC Wood Gundy Securities Corp. and Alex. Brown & Sons Incorporated
acted as underwriters (the "Underwriters") of the offering pursuant to an
Underwriting Agreement dated October 9, 1996 (the "Underwriting Agreement") by
and among the Registrant, its United States subsidiaries and the Underwriters. A
copy of the Underwriting Agreement is attached as Exhibit 99.2 to this Report
and is incorporated by reference herein.
The Registrant's public offering of the $240 million principal amount
of the Notes was consummated on October 15, 1996.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
99.1. Indenture dated October 15, 1996 by and among the
Registrant, its United States subsidiaries and The
Bank of New York, as Trustee.
99.2. Underwriting Agreement dated October 9, 1996 by and
among the Registrant, its United States subsidiaries
and the Underwriters.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 17, 1996 OUTDOOR SYSTEMS, INC.
By: /s/ Bill M. Beverage
-------------------------------------
Name: Bill M. Beverage
Title: Chief Financial Officer,
Treasurer and Secretary
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
99.1. Indenture dated October 15, 1996 by and among the Registrant, its
United States subsidiaries and The Bank of New York, as Trustee.
99.2. Underwriting Agreement dated October 9, 1996 by and among the
Registrant, its United States subsidiaries and the Underwriters.
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OUTDOOR SYSTEMS, INC.
THE GUARANTORS
and
THE BANK OF NEW YORK, as Trustee
--------------------
INDENTURE
Dated as of October 15, 1996
--------------------
$240,000,0001
9 3/8% Senior Subordinated Notes due 2006
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1 $250,000,000 if the Over-allotment Option is exercised in
full.
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- -------
310(a)(1)...........................................................7.10
(a)(2)........................................................7.10
(a)(3)........................................................N.A.
(a)(4)........................................................N.A.
(b)...........................................................7.08; 7.10;
12.02
(b)(1)........................................................7.10
(b)(9)........................................................7.10
(c)...........................................................N.A.
311(a)..............................................................7.11
(b)...........................................................7.11
(c)...........................................................N.A.
312(a)..............................................................2.05
(b)...........................................................12.03
(c)...........................................................12.03
313(a)..............................................................7.06
(b)(1)........................................................7.06
(b)(2)........................................................7.06
(c)...........................................................12.02
(d)...........................................................7.06
314(a)..............................................................4.02; 4.04
12.02
(b)...........................................................N.A.
(c)(1)........................................................12.04; 12.05
(c)(2)........................................................12.04; 12.05
(c)(3)........................................................N.A.
(d)...........................................................N.A.
(e)...........................................................12.05
(f)...........................................................N.A.
315(a)..............................................................7.01; 7.02
(b)...........................................................7.05; 12.02
(c)...........................................................7.01
(d)...........................................................6.05; 7.01;
7.02
(e)...........................................................6.11
316(a) (last sentence)..............................................12.06
(a)(1)(A).....................................................6.05
(a)(1)(B).....................................................6.04
(a)(2)........................................................8.02
(b)...........................................................6.07
(c)...........................................................8.04
317(a)(1)...........................................................6.08
(a)(2)........................................................6.09
(b)...........................................................7.12
318(a)..............................................................12.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.................................. 1
Section 1.02. Other Definitions............................ 23
Section 1.03. Incorporation by Reference of
Trust Indenture Act........................ 24
Section 1.04. Rules of Construction........................ 25
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.............................. 25
Section 2.02. Execution and Authentication................. 26
Section 2.03. Registrar and Paying Agent................... 26
Section 2.04. Paying Agent To Hold Assets in Trust......... 27
Section 2.05. Noteholder Lists............................. 27
Section 2.06. Transfer and Exchange........................ 28
Section 2.07. Replacement Notes............................ 28
Section 2.08. Outstanding Notes............................ 29
Section 2.09. Temporary Notes.............................. 29
Section 2.10. Cancellation................................. 29
Section 2.11. Defaulted Interest........................... 30
Section 2.12. Deposit of Moneys............................ 30
Section 2.13. CUSIP Number................................. 30
ARTICLE 3.
REDEMPTION
Section 3.01. Notices to Trustee........................... 31
Section 3.02. Selection by Trustee of Notes To
Be Redeemed................................ 31
Section 3.03. Notice of Redemption......................... 31
Section 3.04. Effect of Notice of Redemption............... 32
Section 3.05. Deposit of Redemption Price.................. 33
Section 3.06. Notes Redeemed in Part....................... 33
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes............................. 33
Section 4.02. SEC Reports.................................. 34
Section 4.03. Waiver of Stay, Extension or Usury
Laws....................................... 34
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Section 4.04. Compliance Certificate....................... 35
Section 4.05. Payment of Taxes and Other Claims............ 36
Section 4.06. Maintenance of Properties and
Insurance.................................. 36
Section 4.07. Compliance with Laws......................... 37
Section 4.08. Corporate Existence.......................... 37
Section 4.09. Maintenance of Office or Agency.............. 38
Section 4.10. Limitation on Additional Indebtedness........ 38
Section 4.11. Limitation on Investments.................... 39
Section 4.12. Limitation on Capital Stock of
Subsidiaries............................... 39
Section 4.13. Limitation on Restricted Payments............ 39
Section 4.14. Limitation on Other Senior
Subordinated Debt.......................... 41
Section 4.15. Limitation on Certain Asset Sales............ 42
Section 4.16. Limitation on Transactions with
Affiliates................................. 44
Section 4.17. Limitations on Liens......................... 45
Section 4.18. Limitations on Creation of
Subsidiaries............................... 46
Section 4.19. Limitation on Sale and Lease-Back
Transactions............................... 46
Section 4.20. Limitation on Dividends and other
Payment Restrictions Affecting
Subsidiaries............................... 46
Section 4.21. Guarantees of Certain Indebtedness........... 47
Section 4.22. Payments for Consent......................... 47
Section 4.23. Line of Business............................. 47
Section 4.24. Change of Control............................ 47
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger
and Sale of Assets......................... 50
Section 5.02. Successor Person Substituted................. 51
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................ 52
Section 6.02. Acceleration................................. 54
Section 6.03. Other Remedies............................... 54
Section 6.04. Waiver of Past Defaults and Events
of Default................................. 55
Section 6.05. Control by Majority.......................... 55
Section 6.06. Limitation on Suits.......................... 55
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Section 6.07. Rights of Holders To Receive Payment......... 56
Section 6.08. Collection Suit by Trustee................... 56
Section 6.09. Trustee May File Proofs of Claim............. 57
Section 6.10. Priorities................................... 57
Section 6.11. Undertaking for Costs........................ 58
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee............................ 58
Section 7.02. Rights of Trustee............................ 59
Section 7.03. Individual Rights of Trustee................. 60
Section 7.04. Trustee's Disclaimer......................... 61
Section 7.05. Notice of Defaults........................... 61
Section 7.06. Reports by Trustee to Holders................ 61
Section 7.07. Compensation and Indemnity................... 61
Section 7.08. Replacement of Trustee....................... 62
Section 7.09. Successor Trustee by Consolidation,
Merger or Conversion....................... 63
Section 7.10. Eligibility; Disqualification................ 63
Section 7.11. Preferential Collection of Claims
Against Company............................ 64
Section 7.12. Paying Agents................................ 64
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders................... 64
Section 8.02. With Consent of Holders...................... 65
Section 8.03. Compliance with Trust Indenture Act.......... 67
Section 8.04. Revocation and Effect of Consents............ 67
Section 8.05. Notation on or Exchange of Notes............. 68
Section 8.06. Trustee To Sign Amendments, etc.............. 68
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture....................... 68
Section 9.02. Legal Defeasance............................. 69
Section 9.03. Covenant Defeasance.......................... 70
Section 9.04. Conditions to Defeasance or Covenant
Defeasance................................. 70
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions............. 72
Section 9.06. Reinstatement................................ 73
Section 9.07. Moneys Held by Paying Agent.................. 73
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Section 9.08. Moneys Held by Trustee....................... 74
ARTICLE 10.
GUARANTEE OF NOTES
Section 10.01. Guarantee.................................... 74
Section 10.02. Execution and Delivery of Guarantees......... 76
Section 10.03. Limitation of Guarantee...................... 76
Section 10.04. Additional Guarantors........................ 77
Section 10.05. Release of Guarantor......................... 77
Section 10.06. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness........... 77
Section 10.07. Payment Over of Proceeds upon
Dissolution, etc., of a Guarantor.......... 78
Section 10.08. Suspension of Guarantee Obligations
When Guarantor Senior Indebtedness
in Default................................. 80
Section 10.09. Subrogation to Rights of Holders of
Guarantor Senior Indebtedness.............. 82
Section 10.10. Guarantee Subordination Provisions
Solely To Define Relative Rights........... 83
Section 10.11. Application of Certain Article 11
Provisions................................. 84
ARTICLE 11.
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior
Indebtedness............................... 84
Section 11.02. Payment Over of Proceeds upon
Dissolution, etc........................... 84
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default.................... 86
Section 11.04. Trustee's Relation to Senior
Indebtedness............................... 88
Section 11.05. Subrogation to Rights of Holders
of Senior Indebtedness..................... 89
Section 11.06. Provisions Solely To Define Relative
Rights..................................... 89
Section 11.07. Trustee To Effectuate Subordination.......... 90
Section 11.08. No Waiver of Subordination Provisions........ 90
Section 11.09. Notice to Trustee............................ 91
Section 11.10. Reliance on Judicial Order or
Certificate of Liquidating Agent........... 92
Section 11.11. Rights of Trustee as a Holder of
Senior Indebtedness; Preservation
of Trustee's Rights........................ 92
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Section 11.12. Article Applicable to Paying Agents.......... 93
Section 11.13. No Suspension of Remedies.................... 93
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls................. 93
Section 12.02. Notices...................................... 93
Section 12.03. Communications by Holders with
Other Holders.............................. 95
Section 12.04. Certificate and Opinion as to
Conditions Precedent....................... 95
Section 12.05. Statements Required in Certificate
and Opinion................................ 95
Section 12.06. When Treasury Notes Disregarded.............. 96
Section 12.07. Rules by Trustee and Agents.................. 96
Section 12.08. Business Days; Legal Holidays................ 96
Section 12.09. Governing Law................................ 96
Section 12.10. No Adverse Interpretation of Other
Agreements................................. 97
Section 12.11. No Recourse Against Others................... 97
Section 12.12. Successors................................... 97
Section 12.13. Multiple Counterparts........................ 97
Section 12.14. Table of Contents, Headings, etc............. 97
Section 12.15. Separability................................. 98
EXHIBITS
Exhibit A. Form of Note................................. A-1
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INDENTURE, dated as of October 15, 1996, among OUTDOOR
SYSTEMS, INC., a Delaware corporation, as Issuer (the "Company"), the GUARANTORS
(as hereinafter defined), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's 9
3/8% Senior Subordinated Notes due
2006 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) existing at the time such Person becomes
a Restricted Subsidiary or assumed in connection with the acquisition of assets
from such Person.
"Adjusted Net Assets" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Guarantee, of such
Guarantor at such date and (y) the present fair salable value of the assets of
such Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities and after giving effect to any collection
from any Subsidiary of such Guarantor in respect of the obligations of such
Subsidiary under the Guarantee), excluding Indebtedness in respect of the
Guarantee, as they become absolute and matured.
"Advertising Displays" mean all posters, signs, billboards and
other outdoor advertising displays and related sites therefor owned or leased
(as lessee) by the Company and the Restricted Subsidiaries.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more
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intermediaries controls, or is controlled by, or is under common control with,
such specified Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notices and demands.
"Asset Acquisition" means (i) an Investment by the Company or
any Restricted Subsidiary in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be consolidated or merged with the
Company or any Restricted Subsidiary or (ii) the acquisition by the Company or
any Restricted Subsidiary of assets of any Person comprising a division or line
of business of such Person.
"Asset Sale" means the sale, transfer or other disposition
(other than to the Company or any of its Restricted Subsidiaries) in any single
transaction or series of related transactions having a fair market value in
excess of $1 million of (a) any Capital Stock of or other equity interest in any
Restricted Subsidiary, (b) all or substantially all of the assets of the Company
or of any Restricted Subsidiary, (c) real property or (d) all or substantially
all of the assets of any business owned by the Company or any Restricted
Subsidiary or a division, line of business or comparable business segment of the
Company or any Restricted Subsidiary thereof; provided that Asset Sales shall
not include sales, leases, conveyances, transfers or other dispositions to the
Company or to a Restricted Subsidiary or to any other Person if after giving
effect to such sale, lease, conveyance, transfer or other disposition such other
Person becomes a Restricted Subsidiary.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(i) cash received by the Company or any Restricted Subsidiary from such Asset
Sale (including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage
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commissions, underwriting and other fees and expenses related to such Asset
Sale, (c) provision for minority interest holders in any Restricted Subsidiary
as a result of such Asset Sale and (d) deduction of appropriate amounts to be
provided by the Company or such Restricted Subsidiary as a reserve, in
accordance with GAAP, against any liabilities associated with the assets sold or
disposed of in such Asset Sale and retained by the Company or such Restricted
Subsidiary after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and
other non-cash consideration received by the Company or any Restricted
Subsidiary from such Asset Sale or other disposition upon the liquidation or
conversion of such notes or non-cash consideration into cash.
"Attributable Indebtedness" in respect of a Sale and
Lease-Back Transaction means, as at the time of determination, the greater of
(i) the fair value of the property subject to such arrangement (as determined by
the Board of Directors of the Company) and (ii) the present value of the notes
(discounted at the rate of interest implicit in such transaction) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Lease-Back Transaction (including any period for
which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not
been applied in accordance with clauses (iii)(a) or (iii)(b) of Section 4.15 and
which have not been the basis for an Excess Proceeds Offer in accordance with
clause (iii)(c) of such Section 4.15.
"Board of Directors" means the Board of Directors of the
Company or a Guarantor, as appropriate, or any committee authorized to act
therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Company or a Guarantor, as appropriate, and to be in full force
and effect, and delivered to the Trustee.
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"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cash Equivalents" means (i) direct obligations of the United
States of America or any agency thereof, or obligations guaranteed or insured by
the United States of America, provided that in each case such obligations mature
within one year from the date of acquisition thereof, (ii) certificates of
deposit maturing within one year from the date of creation thereof issued by any
U.S. national or state banking institution having capital, surplus and undivided
profits aggregating at least $500,000,000 and rated at least A- 1 by S&P and P-1
by Moody's, (iii) commercial paper with a maturity of 180 days or less issued by
a corporation (except an Affiliate of the Company) organized under the laws of
any state of the United States or the District of Columbia and rated at least
A-1 by S&P or at least P-1 by Moody's and (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States of America or issued by an
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date of acquisition;
provided that the terms of such agreements comply with the guidelines set forth
in the Federal Financial Agreements of Depository Institutions with Securities
Dealers and Others, as adopted by the Comptroller of the Currency.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group"), together with
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any Affiliates thereof; (ii) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of the
Company; (iii) the Permitted Holders, individually or in the aggregate, shall
cease to beneficially own (within the meaning of Rule 13d-3 under the Exchange
Act), directly or indirectly, Voting Stock representing at least 25% of the
total voting power of all Voting Stock of the Company; (iv) any Person or Group
(other than the Permitted Holders) shall become the owner, directly or
indirectly, beneficially or of record, of Voting Stock representing more than
30% of the total voting power of all Voting Stock of the Company; or (v) the
replacement of a majority of the Board of Directors of the Company over a
two-year period from the directors who constituted the Board of Directors of the
Company at the beginning of such period, and such replacement shall not have
been approved by a vote of at least two-thirds of the Board of Directors of the
Company then still in office who either were members of such Board of Directors
at the beginning of such period or whose election as a member of such Board of
Directors was previously so approved.
"Common Stock" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and any other primary obligor
on the Notes.
"Company Request" means any written request signed in the name
of the Company by the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Treasurer and attested to by the
Secretary or any Assistant Secretary of the Company.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its Subsidiaries
(Restricted Subsidiaries in the case of the Company) on a consolidated
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basis (including, but not limited to, imputed interest included in Capitalized
Lease Obligations, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, the net
costs associated with hedging obligations, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all other
non-cash interest expense (other than interest amortized to cost of sales))
plus, without duplication, all net capitalized interest for such period and all
interest incurred or paid under any guarantee of Indebtedness (including a
guarantee of principal, interest or any combination thereof) of any Person, plus
the amount of all dividends or distributions paid on Disqualified Capital Stock
(other than dividends paid or payable in shares of Capital Stock of the
Company); provided, however, that, solely for purposes of the calculation of 1.4
times the Company's Cumulative Consolidated Interest Expense in clause (c) of
the first paragraph of Section 4.13, "Consolidated Interest Expense" shall
exclude the amortization of deferred financing fees.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) for such
period, on a consolidated basis, determined in accordance with GAAP; provided,
however, that (a) the Net Income of any Person (the "other Person") in which the
Person in question or any of its Subsidiaries (Restricted Subsidiaries in the
case of the Company) has less than a 100% interest (which interest does not
cause the net income of such other Person to be consolidated into the net income
of the Person in question in accordance with GAAP) shall be included only to the
extent of the amount of dividends or distributions paid to the Person in
question or such Subsidiary, (b) the Net Income of any Subsidiary (Restricted
Subsidiary in the case of the Company) of the Person in question that is subject
to any restriction or limitation on the payment of dividends or the making of
other distributions (other than pursuant to the Notes or this Indenture) shall
be excluded to the extent of such restriction or limitation, (c)(i) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition and (ii) any net gain (but not
loss) resulting from an Asset Sale by the Person in question or any of its
Subsidiaries other than in the ordinary
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course of business shall be excluded, and (d) extraordinary gains and losses
shall be excluded.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at Towermarc Plaza, 10161 Centurion Parkway, Jacksonville, Florida 32256.
"Cumulative Consolidated Interest Expense" means, as of any
date of determination, Consolidated Interest Expense of the Company from the
Issue Date to the end of the Company's most recently ended full fiscal quarter
prior to such date, taken as a single accounting period.
"Cumulative EBITDA" means, as of any date of determination,
EBITDA of the Company from the Issue Date to the end of the Company's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"Default" means any event that is, or with the passing of time
or giving of notice or both would be, an Event of Default.
"Designated Senior Indebtedness," as to the Company or any
Guarantor, as the case may be, means any Senior Indebtedness (a) under or in
respect of the Senior Credit Facility, or (b) which at the time of determination
exceeds $50 million in aggregate principal amount (or accreted value in the case
of Indebtedness issued at a discount) outstanding or available under a committed
facility, and (i) which is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" by such Person and
(ii) as to which the Trustee has been given written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock of the
Company or any Restricted Subsidiary which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness. Without
<PAGE> 15
-8-
limitation of the foregoing, Disqualified Capital Stock shall be deemed to
include any Preferred Stock of the Company with respect to which, under the
terms of such Preferred Stock, by agreement or otherwise, the Company is
obligated to pay current dividends or distributions in cash during the period
prior to the maturity date of the Notes; provided, however, that Preferred Stock
that is issued with the benefit of provisions requiring a change of control
offer to be made for such Preferred Stock in the event of a change of control of
the Company, which provisions have substantially the same effect as the
provisions described in Section 4.24, shall not be deemed to be Disqualified
Capital Stock solely by virtue of such provisions.
"EBITDA" means, for any Person, for any period, an amount
equal to (a) the sum of, without duplication, (i) Consolidated Net Income for
such period, plus (ii) the provision for taxes for such period based on income
or profits to the extent such income or profits were included in computing
Consolidated Net Income and any provision for taxes utilized in computing net
loss under clause (i) hereof, plus (iii) Consolidated Interest Expense for such
period (but only including Redeemable Dividends in the calculation of such
Consolidated Interest Expense to the extent that such Redeemable Dividends have
not been excluded in the calculation of Consolidated Net Income), plus (iv)
depreciation for such period on a consolidated basis, plus (v) amortization of
intangibles for such period on a consolidated basis, plus (vi) any other
non-cash items reducing Consolidated Net Income for such period, minus (b) all
non-cash items increasing Consolidated Net Income for such period, all for such
Person and its Subsidiaries determined in accordance with GAAP, except that with
respect to the Company each of the foregoing items shall be determined on a
consolidated basis with respect to the Company and the Restricted Subsidiaries
only; and provided, however, that, for purposes of calculating EBITDA during any
fiscal quarter, cash income from a particular Investment of such Person shall be
included only (x) if cash income has been received by such Person with respect
to such Investment during each of the previous four fiscal quarters, or (y) if
the cash income derived from such Investment is attributable to Temporary Cash
Investments.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
<PAGE> 16
-9-
"fair market value" means, unless otherwise specified, with
respect to any asset or property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair market value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a Board Resolution of the Company delivered to the Trustee.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States from time to time.
"Guarantee" means the guarantee of the Obligations of the
Company with respect to the Notes by each Guarantor pursuant to the terms of
Article 10 hereof.
"Guarantor" means (i) each of Outdoor Systems Painting, Inc.,
an Arizona corporation, OS Advertising of Texas Painting Inc., a Texas
corporation, OS Baseline, Inc., an Arizona corporation, Decade Communications
Group, Inc., a Colorado Corporation, Bench Advertising Company of Colorado,
Inc., a Colorado Corporation, and New York Subways Advertising Co., Inc., an
Arizona corporation, and (ii) each Restricted Subsidiary of the Company that
hereafter becomes a Guarantor pursuant to Section 10.04, and "Guarantors" means
such entities, collectively.
"Guarantor Senior Indebtedness" means the principal of and
premium, if any, and interest (including, without limitation, interest accruing
or that would have accrued but for the filing of a bankruptcy, reorganization or
other insolvency proceeding whether or not such interest constitutes an
allowable claim in such proceeding) on, and any and all other fees, charges,
expense reimbursement obligations, indemnities and other amounts due pursuant to
the terms of all agreements, documents and instruments providing for, creating,
securing, guaranteeing or evidencing or otherwise entered into in connection
with, (a) Guarantor's direct incurrence of any Indebtedness or its guarantee of
all Indebtedness of the Company, in each case, owed to lenders under or in
respect of the Senior Credit Facility, (b) all obligations of such Guarantor
with respect to any Interest Rate Agreement, (c) all obligations of such
Guarantor to reimburse any bank or other
<PAGE> 17
-10-
person in respect of amounts paid under letters of credit, acceptances or other
similar instruments, (d) all other Indebtedness of such Guarantor which does not
provide that it is to rank pari passu with or subordinate to the Guarantees and
(e) all deferrals, renewals, extensions and refundings of, and amendments,
modifications and supplements to, any of the Guarantor Senior Indebtedness
described above. Notwithstanding anything to the contrary in the foregoing,
Guarantor Senior Indebtedness will not include (i) Indebtedness of such
Guarantor to any of its Subsidiaries, (ii) Indebtedness represented by the Notes
and the Guarantees, (iii) any Indebtedness which by the express terms of the
agreement or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Guarantor Senior Indebtedness,
(iv) any trade payable arising from the purchase of goods or materials or for
services obtained in the ordinary course of business or (v) that portion of any
Indebtedness (other than Indebtedness described in clause (a) of the immediately
preceding sentence of this definition which relates to reimbursement obligations
(whether in the form of loans or otherwise) under letters of credit with respect
to drawings made thereunder and not yet reimbursed) which is incurred in
violation of the Indenture.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Houston Disposition" means the sale by the Company of any or
all of the assets representing outdoor advertising assets serving the Houston,
Texas market.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
<PAGE> 18
-11-
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any Property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other accrued liabilities
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included (i) any Capitalized Lease Obligations, (ii) obligations
of others secured by a lien to which the property or assets owned or held by
such Person is subject, whether or not the obligation or obligations secured
thereby shall have been assumed, (iii) guarantees of Obligations of other
Persons which would be included within this definition for such other Persons
(whether or not such items would appear upon the balance sheet of the
guarantor), (iv) all obligations for the reimbursement of any obligor on any
banker's acceptance or for reimbursement of any obligor on any letter of credit
with respect to drawings made thereunder and not yet reimbursed, (v) in the case
of the Company, Disqualified Capital Stock of the Company or any Restricted
Subsidiary, and (vi) obligations of any such Person under any Interest Rate
Agreement applicable to any of the foregoing (if and to the extent such Interest
Rate Agreement obligations would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP). The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above, provided (i) that the amount
outstanding at any time of any Indebtedness issued with original issue discount,
including the Notes, is the principal amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP and (ii) that
Indebtedness shall not include any liability for Federal, state, local or other
taxes. Notwithstanding any other provision of the foregoing definition, any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business shall not be deemed to be
"Indebtedness" of the Company or any of the Restricted
<PAGE> 19
-12-
Subsidiaries for purposes of this definition. Furthermore, guarantees of (or
obligations with respect to letters of credit supporting) Indebtedness otherwise
included in the determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business), loan or capital contribution to (by means of transfers of
property to others, payments for property or services for the account or use of
others or otherwise), the purchase of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities of, the acquisition,
by purchase or otherwise, of all or substantially all of the business or assets
or stock or other evidence of beneficial ownership of, any Person. Investments
shall exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Issue Date" means the date the Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
"Leverage Ratio" means the ratio of (i) the sum of the
aggregate outstanding amount of Indebtedness of the Company and the Restricted
Subsidiaries as of the date of calculation on a consolidated basis in accordance
with GAAP to (ii) the Company's EBITDA for the four full quarters (the "Four
Quarter Period") ending on or prior to the date of determination for which
financial statements are available. For purposes of this definition, the
Company's "EBITDA" shall be calculated on a pro forma basis after giving effect
to any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset
<PAGE> 20
-13-
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of the Restricted Subsidiaries (including any Person who becomes
a Restricted Subsidiary as a result of such Asset Acquisition) incurring,
assuming or otherwise becoming liable for Indebtedness) at any time on or
subsequent to the first day of the Four Quarter Period and on or prior to the
date of determination, as if such Asset Sale or Asset Acquisition (including any
EBITDA associated with such Asset Acquisition and including any pro forma
expense and cost reductions determined in accordance with Article 11 of
Regulation S-X relating to such Asset Acquisition) occurred on the first day of
the Four Quarter Period.
"Lien" means, with respect to any Property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such Property or assets
(including, without limitation, any Capitalized Lease Obligation, conditional
sales, or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"Maturity Date" means October 15, 2006.
"Moody's" means Moody's Investors Service, Inc. and
its successors.
"Net Income" means with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"Net Investment" means the excess of (i) the aggregate amount
of all Investments in Unrestricted Subsidiaries and joint ventures made by the
Company and the Restricted Subsidiaries on or after the Issue Date (in the case
of an Investment made other than in cash, the amount shall be the fair market
value of such Investment as determined in good faith by the Board of Directors
of the Company) over (ii) the sum of (A) the aggregate amount returned in cash
on such Investments whether through interest payments, principal payments,
dividends or other distributions, (B) the net cash proceeds received by the
Company or any Restricted Subsidiary from the disposition of all or any portion
of such Investments
<PAGE> 21
-14-
(other than to a Subsidiary of the Company) and (C) the fair market value (as
determined in good faith by the Board of Directors of the Company) of any
Unrestricted Subsidiary that subsequently becomes a Wholly-Owned Restricted
Subsidiary; provided, however, that with respect to all Investments made in any
Unrestricted Subsidiary or any joint venture, the sum of clauses (A), (B) and
(C) above with respect to such Investments shall not exceed the aggregate amount
of all such Investments made in such Unrestricted Subsidiary or such joint
venture, as the case may be.
"Net Proceeds" means (a) in the case of any sale of Capital
Stock by the Company, the aggregate net proceeds received by the Company, after
payment of expenses, commissions and the like incurred in connection therewith,
whether such proceeds are in cash or in property (valued at the fair market
value thereof, as determined in good faith by the Board of Directors, at the
time of receipt) and (b) in the case of any exchange, exercise, conversion or
surrender of outstanding securities of any kind for or into shares of Capital
Stock of the Company which is not Disqualified Capital Stock, the net book value
of such outstanding securities on the date of such exchange, exercise,
conversion or surrender (plus any additional amount required to be paid by the
holder to the Company upon such exchange, exercise, conversion or surrender,
less any and all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by the Company in connection therewith).
"Non-Payment Event of Default" means any event (other than a
Payment Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Notes" means the securities that are issued under this
Indenture, as amended or supplemented from time to time pursuant to this
Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees, indemnifications, reimbursements,
damages and other expenses payable under the documentation governing such
Indebtedness.
<PAGE> 22
-15-
"Officer" means the Chief Executive Officer, the President,
any Vice President, the Chief Financial Officer, the Treasurer or the Secretary
of the Company or a Guarantor, or any other officer designated by the Board of
Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal
counsel which counsel is reasonably acceptable to the Trustee.
"Over-allotment Option" means the option granted by the
Company to CIBC Wood Gundy Securities Corp. and Alex. Brown & Sons Incorporated
to purchase up to $10,000,000 aggregate principal amount of additional Notes
pursuant to the Underwriting Agreement dated October 9, 1996.
"Payment Default" means any default, whether or not any
requirement for the giving of notice, the lapse of time or both, or any other
condition to such default becoming an event of default has occurred, in the
payment of principal of (or premium, if any) or interest on or any other amount
payable in connection with Designated Senior Indebtedness.
"Permitted Asset Swap" means the exchange, in the ordinary
course of the outdoor advertising business, of any interest of the Company or
any of the Restricted Subsidiaries in any Advertising Display or Displays for a
similar interest in an Advertising Display or Displays of a Person other than
the Company or such Restricted Subsidiary; provided that (i) the aggregate fair
market value (as determined in good faith by the Board of Directors of the
Company) of the Advertising Display or Displays being transferred by the Company
or such Restricted Subsidiary is not greater than the aggregate fair market
value (as determined in good faith by the Board of Directors of the Company) of
the Advertising Display or Displays received by the Company or such Restricted
Subsidiary in such exchange and (ii) the aggregate fair market value (as
determined in good faith by the Board of Directors of the Company) of all
Advertising Displays transferred by the
<PAGE> 23
-16-
Company and the Restricted Subsidiaries in connection with exchanges in any
period of twelve consecutive months shall not exceed $10 million.
"Permitted Dividend Encumbrances" means encumbrances or
restrictions (a) existing on the Issue Date, (b) arising by reason of Acquired
Indebtedness of any Restricted Subsidiary existing at the time such Person
became a Restricted Subsidiary; provided that in the case of clause (b) above
such encumbrances or restrictions were not created in anticipation of such
Person becoming a Restricted Subsidiary and are not applicable to the Company or
any of the other Restricted Subsidiaries, (c) arising under the Senior Credit
Facility as in effect on the Issue Date, and refinancings thereof; provided that
the encumbrances and restrictions contained in any such refinancing agreement
are no less favorable to the Holders of Notes than those contained in the Senior
Credit Facility as in effect on the Issue Date, (d) arising under Refinancing
Indebtedness; provided that the terms and conditions of any such restrictions
are no less favorable to the Holders of Notes than those under the Indebtedness
being refinanced and (e) customary provisions restricting the assignment of any
contract or interest of the Company or any Restricted Subsidiary.
"Permitted Holders" means William S. Levine, Arthur R. Moreno,
any trust solely for the benefit of Messrs. Levine and Moreno or their
respective immediate family members, or any partnership all the ownership
interests in which are beneficially owned or controlled by any of the foregoing;
provided that with respect to any such trust or partnership either Mr. Levine or
Mr. Moreno (or in the event of the death or incapacity of Mr. Levine or Mr.
Moreno, as the case may be, an immediate family member or the legal
representative) shall at all times have the exclusive power to direct the voting
of the shares of Voting Stock of the Company held by such trust or partnership.
"Permitted Indebtedness" means:
(a) Indebtedness of the Company or any Restricted Subsidiary
pursuant to the Senior Credit Facility in an amount not to exceed an aggregate
of $425 million plus cdn $83 million (which at the option of the Company may be
$60 million) minus the amount of any such Indebtedness
<PAGE> 24
-17-
permanently retired with the Asset Sale Proceeds from any Asset Sale;
(b) Indebtedness under the Notes and the Guarantees;
(c) Indebtedness not covered by any other clause of this definition
which is outstanding on the date of the Indenture;
(d) Indebtedness of the Company to any Wholly-Owned Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary to the Company or
another Restricted Subsidiary;
(e) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which Purchase
Money Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed 5% of the Company's consolidated total assets;
(f) Interest Rate Agreements and any guarantees thereof;
(g) additional Indebtedness of the Company not to exceed $40 million
in principal amount outstanding at any time; and
(h) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments
made on or after the date of this Indenture consisting of:
(i) Investments by the Company or by a Restricted Subsidiary in the
Company or a Wholly-Owned Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company or by a Restricted Subsidiary in a
Person, if as a result of such Investment (a) such Person becomes a Restricted
Subsidiary of the Company or (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys
<PAGE> 25
-18-
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary;
(iv) reasonable and customary loans made to employees in connection
with their relocation not to exceed $2 million in the aggregate at any one time
outstanding; and
(v) an Investment that is made by the Company or a Restricted
Subsidiary in the form of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities that are issued by a third party to
the Company or such Restricted Subsidiary solely as partial consideration for
the consummation of an Asset Sale that is otherwise permitted under Section 4.15
hereof.
"Permitted Liens" means (i) Liens existing on the issue date,
(ii) Liens on property or assets of, or any shares of stock of or secured debt
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary or at the time such corporation is merged into the Company or any of
the Restricted Subsidiaries; provided that such Liens are not incurred in
connection with, or in contemplation of, such corporation becoming a Restricted
Subsidiary or merging into the Company or any of the Restricted Subsidiaries,
(iii) Liens securing Refinancing Indebtedness; provided that any such Lien does
not extend to or cover any Property, shares or debt other than the Property,
shares or debt securing the Indebtedness so refunded, refinanced or extended,
(iv) Liens in favor of the Company or any of the Restricted Subsidiaries, (v)
Liens to secure Purchase Money Indebtedness that is otherwise permitted under
this Indenture; provided that (a) any such Lien is created solely for the
purpose of securing Indebtedness representing, or incurred to finance, refinance
or refund, the cost (including sales and excise taxes, installation and delivery
charges and other direct costs of, and other direct expenses paid or charged in
connection with, such purchase or construction) of such Property, (b) the
principal amount of the Indebtedness secured by such Lien does not exceed 100%
of such costs, and (c) such Lien does not extend to or cover any Property other
than such item of Property and any improvements on such item, (vi) statutory
liens or landlords', carriers', warehouseman's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course
<PAGE> 26
-19-
of business which do not secure any Indebtedness and with respect to amounts not
yet delinquent or being contested in good faith by appropriate proceedings, if a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor, (vii) other Liens securing
obligations incurred in the ordinary course of business which obligations do not
exceed $5 million in the aggregate at any one time outstanding, (viii) any
extensions, substitutions, replacements or renewals of the foregoing, (ix) Liens
for taxes, assessments or governmental charges that are being contested in good
faith by appropriate proceedings, (x) Liens securing Capitalized Lease
Obligations permitted to be incurred under clause (v) of the definition of
"Permitted Indebtedness," provided that any such Lien does not extend to any
property other than that subject to the underlying lease and (ix) Liens securing
Senior Indebtedness and Guarantor Senior Indebtedness.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) under GAAP.
"Public Equity Offering" means a public offering by the
Company of shares of its common stock (however designated and whether voting or
non-voting) and any and all rights, warrants or options to acquire such common
stock pursuant to a registration statement registered pursuant to the Act.
"Purchase Money Indebtedness" means any Indebtedness incurred
in the ordinary course of business by a Person to finance the cost (including
the cost of construction) of an item of Property, the principal amount of which
Indebtedness
<PAGE> 27
-20-
does not exceed the sum of (i) 100% of such cost and (ii) reasonable fees and
expenses of such Person incurred in connection therewith.
"Redeemable Dividend" means, for any dividend or distribution
with regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company or the Restricted
Subsidiaries outstanding on the Issue Date or other Indebtedness permitted to be
incurred by the Company or the Restricted Subsidiaries pursuant to the terms of
the Indenture (other than pursuant to clauses (d), (e), (f) and (g) of the
definition of Permitted Indebtedness), but only to the extent that (i) the
Refinancing Indebtedness is subordinated to the Notes to at least the same
extent as the Indebtedness being refunded, refinanced or extended, if at all,
(ii) the Refinancing Indebtedness is scheduled to mature either (a) no earlier
than the Indebtedness being refunded, refinanced or extended, or (b) after the
maturity date of the Notes, (iii) the portion, if any, of the Refinancing
Indebtedness that is scheduled to mature on or prior to the maturity date of the
Notes has a weighted average life to maturity at the time such Refinancing
Indebtedness is incurred that is equal to or greater than the weighted average
life to maturity of the portion of the Indebtedness being refunded, refinanced
or extended that is scheduled to mature on or prior to the maturity date of the
Notes, (iv) such Refinancing Indebtedness is in an aggregate principal amount
that is equal to or less than the sum of (a) the aggregate principal amount then
outstanding under the Indebtedness being refunded, refinanced or extended, (b)
the amount of accrued and unpaid interest, if any, and premiums owed, if any,
not in excess of preexisting prepayment provisions on such Indebtedness being
refunded, refinanced or extended and (c) the amount of customary fees, expenses
and costs related to the incurrence of such Refinancing Indebtedness, and (v)
such Refinancing Indebtedness
<PAGE> 28
-21-
is incurred by the same Person that initially incurred the Indebtedness being
refunded, refinanced or extended, except that the Company may incur Refinancing
Indebtedness to refund, refinance or extend Indebtedness of any Wholly-Owned
Restricted Subsidiary.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers 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 Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Company or any Restricted Subsidiary of the Company or any
payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Restricted Subsidiary of the Company (other
than (x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase Capital
Stock (other than Disqualified Stock), and (y) in the case of Restricted
Subsidiaries of the Company, dividends or distributions payable to the Company
or to a Wholly-Owned Restricted Subsidiary), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Company or
any of the Restricted Subsidiaries (other than Capital Stock owned by the
Company or a Wholly-Owned Restricted Subsidiary), (iii) the making of any
principal payment on, or the purchase, defeasance, repurchase, redemption or
other acquisition or retirement for value, prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of any Indebtedness which
is subordinated in right of payment to the Notes other than subordinated
Indebtedness acquired in anticipation of satisfying a scheduled sinking fund
obligation, principal installment or final maturity (in each case due within one
year of the date of acquisition), (iv) the making of any Investment or guarantee
of any Investment in any Person other than a Permitted Investment, (v) any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary on the
basis of the Investment by the Company therein and
<PAGE> 29
-22-
(vi) forgiveness of any Indebtedness of an Affiliate of the Company (other than
a Wholly-Owned Restricted Subsidiary) to the Company or a Restricted Subsidiary.
For purposes of determining the amount expended for Restricted Payments, cash
distributed or invested shall be valued at the face amount thereof and property
other than cash shall be valued at its fair market value.
"Restricted Subsidiary" means a Subsidiary of the Company
other than an Unrestricted Subsidiary and includes all of the Subsidiaries of
the Company existing as of the Issue Date. The Board of Directors of the Company
may designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary of the Company as a Restricted Subsidiary if immediately after giving
effect to such action (and treating any Acquired Indebtedness as having been
incurred at the time of such action), the Company could have incurred at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.10.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any real or tangible personal Property, which Property has been or is to be
sold or transferred by the Company or such Restricted Subsidiary to such Person
in contemplation of such leasing.
"S&P" means Standard & Poor's Corporation and its
successors.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Credit Facility" means the Third Amended and Restated
Credit Agreement dated as of August 22, 1996 among the Company, 3284085 Canada,
Inc., the several lenders from time to time parties thereto and Canadian
Imperial Bank of Commerce, as administrative agent, together with the documents
related thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and
<PAGE> 30
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restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Senior Indebtedness" means the principal of and premium, if
any, and interest (including, without limitation, interest accruing or that
would have accrued but for the filing of a bankruptcy, reorganization or other
insolvency proceeding whether or not such interest constitutes an allowable
claim in such proceeding) on, and any and all other fees, charges, expense
reimbursement obligations, and other amounts due pursuant to the terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all obligations of
the Company owed to lenders under the Senior Credit Facility, (b) all
obligations of the Company with respect to any Interest Rate Agreement, (c) all
obligations of the Company to reimburse any bank or other person in respect of
amounts paid under letters of credit, acceptances or other similar instruments,
(d) all other current or future Indebtedness of the Company which does not
provide that it is to rank pari passu with or subordinate to the Notes and (e)
all deferrals, renewals, extensions and refundings of and amendments,
modifications and supplements to, any of the Senior Indebtedness described
above. Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness will not include (i) Indebtedness of the Company to any of its
Subsidiaries, (ii) Indebtedness represented by the Notes, (iii) any Indebtedness
which by the express terms of the agreement or instrument creating, evidencing
or governing the same is junior or subordinate in right of payment to any item
of Senior Indebtedness, (iv) any trade payable arising from the purchase of
goods or materials or for services obtained in the ordinary course of business
or (v) that portion of any Indebtedness (other than Indebtedness described in
clause (a) of the immediately preceding sentence of this definition which
relates to reimbursement obligations (whether in the form of loans or otherwise)
under letters of credit with respect to drawings made thereunder and not yet
reimbursed) which is incurred in violation of the Indenture.
<PAGE> 31
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"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Temporary Cash Investments" means (i) Investments in
marketable direct obligations issued or guaranteed by the United States of
America, or of any governmental agency or political subdivision thereof,
maturing within 365 days of the date of purchase; (ii) Investments in
certificates of deposit issued by a bank organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each case
having capital, surplus and undivided profits totaling more than $500,000,000
and rated at least A by Standard & Poor's Corporation and A-2 by Moody's
Investors Service, Inc., maturing within 365 days of purchase; or (iii)
Investments not exceeding 365 days in duration in money market funds that invest
substantially all of such funds' assets in the Investments described in the
preceding clauses (i) and (ii).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
SectionSection 77aaa-77bbbb) as in effect on the date of this Indenture (except
as provided in Section 8.03 hereof).
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer trust accounts.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
<PAGE> 32
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"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company; provided that a Subsidiary of
the Company organized or acquired after the Issue Date may be so classified as
an Unrestricted Subsidiary only if such classification is in compliance with
Section 4.13 hereof. The Trustee shall be given prompt notice by the Company of
each resolution adopted by the Board of Directors of the Company under this
provision, together with a copy of each such resolution adopted.
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holders
thereof to vote under ordinary circumstances in the election of members of the
Board of Directors or other governing body of such Person.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares) of which are owned, directly or indirectly, by the Company.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Affiliate Transaction".............................................. 4.16
"Bankruptcy Law"..................................................... 6.01
"Business Day"....................................................... 12.08
"Change of Control Offer"............................................ 4.24
"Change of Control Payment Date"..................................... 4.24
"Change of Control Purchase Price"................................... 4.24
"Covenant Defeasance"................................................ 9.03
"Custodian".......................................................... 6.01
</TABLE>
<PAGE> 33
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<TABLE>
<S> <C>
"Event of Default"................................................... 6.01
"Excess Proceeds Offer".............................................. 4.15
"Guarantee Payment Blockage Period".................................. 10.08
"Guarantor Representative............................................ 10.08
"Initial Blockage Period"............................................ 11.03
"Initial Guarantee Blockage Period".................................. 10.08
"Legal Defeasance"................................................... 9.02
"Legal Holiday"...................................................... 12.08
"Offer Period"....................................................... 4.15
"Paying Agent"....................................................... 2.03
"Payment Blockage Period"............................................ 11.03
"Purchase Date"...................................................... 4.15
"Registrar".......................................................... 2.03
"Reinvestment Date".................................................. 4.15
"Representative"..................................................... 11.03
</TABLE>
Section 1.03. Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes or the
Guarantees.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
<PAGE> 34
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Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(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; and
(5) words used herein implying any gender shall apply to every
gender.
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 Exhibit A which is incorporated in and
made part of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company may use
"CUSIP" numbers in issuing the Notes. The Company shall approve the form of the
Notes. Each Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes and the
Guarantee shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two
Officers of the Company or an Officer and the Secretary
<PAGE> 35
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or an Assistant Secretary of the Company. Such signature may be either manual or
facsimile. The Company's seal shall be impressed, affixed, imprinted or
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 the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate
Notes for original issue in the aggregate principal amount of $250,000,000
(including $10,000,000 aggregate principal amount of Notes which may be issued
upon exercise of the Over-allotment Option) upon a Company Request. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof. The Notes shall be issuable
only in registered form without coupons and only in denominations of $1,000 and
integral multiples thereof.
The Trustee may appoint an authenticating agent reasonably
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 right 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"), an
office or agency located in the Borough of Manhattan, City of New York, State of
New York where Notes may be presented for payment ("Paying Agent") and an office
or agency where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents.
<PAGE> 36
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Neither the Company nor any Affiliate of the Company may act as Paying Agent.
The Company may change any Paying Agent, Registrar or co-registrar without
notice to any Noteholder.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes.
Section 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that, subject to Articles 10 and 11, each Paying
Agent shall hold in trust for the benefit of the Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, or interest on,
the Notes (whether such assets have been distributed to it by the Company or any
other obligor on the Notes), and the Company and the Paying Agent shall notify
the Trustee in writing of any Default by the Company (or any other obligor on
the Notes) in making any such payment. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any Payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
Section 2.05. Noteholder 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 Noteholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee as of each Record Date and on or before each related
Interest Payment
<PAGE> 37
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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 Noteholders.
Section 2.06. Transfer and Exchange.
When a Note is presented to the Registrar with a request to
register the transfer thereof, the Registrar shall register the transfer as
requested if the requirements of applicable law are met and, when Notes are
presented to the Registrar with a request to exchange them for an equal
principal amount of Notes of other authorized denominations, the Registrar shall
make the exchange as requested provided that every Note presented or surrendered
for registration of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit transfers and exchanges, upon surrender of
any Note for registration of transfer at the office or agency maintained
pursuant to Section 2.03 hereof, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's request. Any exchange or transfer shall be
without charge, except that the Company may require payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to Sections 2.09, 3.06 or 8.05 hereof. The Trustee shall not
be required to register transfers of Notes or to exchange Notes for a period of
15 days before selection of any Notes to be redeemed. The Trustee shall not be
required to exchange or register transfers of any Notes called or being called
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note presents evidence to the satisfaction of the Company and the
Trustee that the Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. An indemnity bond may be required by the Company
or the Trustee that is sufficient in the judgment of
<PAGE> 38
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the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Note is replaced. The Company
may charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Note, including reasonable fees and expenses of counsel. Every replacement Note
is an additional obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding until
the Company and the Trustee receive proof satisfactory to each of them that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If a Paying Agent holds on a Redemption Date or Maturity Date
money sufficient to pay the principal of, premium, if any, and accrued interest
on Notes payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
Subject to Section 12.06, a Note does not cease to be
outstanding solely because the Company or an Affiliate holds the Note.
Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights, of definitive
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes
presented to it.
<PAGE> 39
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Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and at the written request of the Company, shall dispose of
all Notes surrendered for transfer, exchange, payment or cancellation. If the
Company or any Guarantor shall acquire any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
such Notes unless and until the same are surrendered to the Trustee for
cancellation or pursuant to this Section 2.10.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted amounts, plus any interest payable on defaulted
amounts pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the special record date, the Company shall mail or cause to be
mailed to each Noteholder, with a copy to the Trustee, a notice that states the
special record date, the payment date, and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and on the Maturity Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or on the Maturity Date, as
the case may be, in a timely manner which permits the Trustee to remit payment
to the Holders on such Interest Payment Date or on the Maturity Date, as the
case may be.
<PAGE> 40
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Section 2.13. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes.
ARTICLE 3.
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 6
of the Notes, it shall notify the Trustee of the Redemption Date and the
principal amount of Notes to be redeemed at least 45 days (unless a shorter
notice shall be satisfactory to the Trustee) but not more than 60 days before
the Redemption Date. Any such notice may be cancelled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
Section 3.02. Selection by Trustee of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed pro rata, by lot or by any other method
that the Trustee considers fair and appropriate and, if such Notes are listed on
any securities exchange, by a method that complies with the requirements of such
exchange.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and 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 in denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or integral
multiples thereof) of the principal amount of Notes that have denominations
larger than
<PAGE> 41
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$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) 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 and upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless (a) the Company defaults in making the redemption
payment or (b) such redemption payment is prohibited pursuant to Article 10 or
11 hereof or otherwise, interest on the Notes called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right of the
Holders of such Notes is to receive payment of the redemption price upon
surrender to the Paying Agent of the Notes redeemed;
(7) the paragraph of the Notes pursuant to which the Notes called for
redemption are being redeemed; and
<PAGE> 42
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(8) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, plus interest, if any, accrued to the
Redemption Date. Upon surrender to the Trustee or Paying Agent, such Notes shall
be paid at the redemption price, plus accrued interest, if any, to the
Redemption Date unless prohibited by Article 10 or 11, provided that if the
Redemption Date is after a regular interest payment record date and on or prior
to the Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Notes registered on the relevant record date.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of and accrued
interest, if any, on all Notes to be redeemed on that date other than Notes or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the redemption price of
and, subject to the proviso in Section 3.04, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note called for redemption shall not be so
paid, interest will be paid, from the Redemption Date until such redemption
payment is made, on the unpaid principal
<PAGE> 43
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of the Note and any interest not paid on such unpaid principal, in each case, at
the rate and in the manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for a Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment and is not prohibited from paying such
money to the Holders pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal, and
overdue interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
The Company will deliver to the Trustee within 15 days after
the filing of the same with the SEC, copies of the quarterly and annual report
and of the information documents and other reports, if any, which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the SEC, to the extent permitted, and provide the Trustee and
Holders of Notes with such quarterly and annual reports and such information,
documents and other reports specified in Section
<PAGE> 44
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13 and 15(d) of the Exchange Act. The Company will also comply with the other
provisions of TIA Section 314(a).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the principal of,
premium, if any, and/or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
(a) The Company and each Guarantor shall deliver to the
Trustee, within 100 days after the end of each fiscal year and on or before 50
days after the end of the first, second and third quarters of each fiscal year,
an Officers' Certificate which complies with TIA Section 314(a)(4) stating that
a review of the activities of the Company and its Subsidiaries or the
Guarantors, as the case may be, during such fiscal year or fiscal quarter, as
the case may be, has been made under the supervision of the signing Officers
with a view to determining whether each 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
each has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (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 each 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
<PAGE> 45
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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 each 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 4.02 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 which would lead them to believe that the
Company has violated any provisions of this 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 for any failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee an Officers' Certificate specifying such event,
notice or other action within five Business Days of its becoming aware of such
occurrence.
Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by GAAP.
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Section 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used in, or useful
to the conduct of, its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries, taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
in the good faith judgment of the Board of Directors of the Company or the
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods as shall be customary, in the good faith judgment of the
Company, for corporations similarly situated in the industry, unless the failure
to provide such insurance (together with all other such failures) would not have
a material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
Section 4.07. Compliance with Laws.
The Company shall, and shall cause each of its Subsidiaries
to, comply with all applicable statutes, rules,
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regulations, orders and restrictions of the United States of America, all states
and municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of its businesses and the ownership of its
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the business or financial condition of the Company
and its Subsidiaries, taken as a whole.
Section 4.08. 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 Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted 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 Restricted 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
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
Section 4.09. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Notes may
be surrendered for registration of transfer or exchange or for presentation for
payment 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 address of the Trustee as set forth in Section 12.02.
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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.
The Company shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee for presentment and payment of Notes set forth in Section
12.02 as such office of the Company.
Section 4.10. Limitation on Additional Indebtedness.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) unless (a) after giving effect to the incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the
Company's Leverage Ratio is less than (i) 6.50 to 1 if such Indebtedness is
incurred on or prior to October 15, 1999, (ii) 6.25 to 1 if such Indebtedness is
incurred after October 15, 1999 and on or prior to October 15, 2001 and (iii)
6.00 to 1 if such Indebtedness is incurred thereafter, and (b) no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of such Indebtedness.
Notwithstanding the foregoing, the Company and the Restricted
Subsidiaries may incur Permitted Indebtedness; provided that the Company will
not incur any Permitted Indebtedness that ranks junior in right of payment to
the Notes that has a maturity or mandatory sinking fund payment prior to the
maturity of the Notes.
Section 4.11. Limitations on Investments
The Company will not, and will not permit any of the
Restricted Subsidiaries to, make any Investment other than (i) a Permitted
Investment or (ii) an Investment that is made as a Restricted Payment in
compliance with Section 4.13 after the Issue Date.
Section 4.12. Limitation on Capital Stock of
Restricted Subsidiaries.
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The Company will not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any Capital Stock of a Restricted Subsidiary
(other than under the Senior Credit Facility or under the terms of any
Designated Senior Indebtedness) or (ii) permit any Restricted Subsidiary to
issue any Capital Stock, other than to the Company or a Wholly-Owned Restricted
Subsidiary. The foregoing restrictions shall not apply to an Asset Sale made in
compliance with Section 4.15.
Section 4.13. Limitation on Restricted Payments.
The Company will not make, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.10;
and
(c) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date does not exceed the sum of (1) 100% of the
Company's Cumulative EBITDA minus 1.4 times the Company's Cumulative
Consolidated Interest Expense, plus (2) 100% of the aggregate Net
Proceeds and the fair market value of securities or other property
received by the Company from the issue or sale, after the Issue Date,
of Capital Stock (other than Disqualified Capital Stock or Capital
Stock of the Company issued to any Subsidiary of the Company) of the
Company or any Indebtedness or other securities of the Company
convertible into or exercisable or exchangeable for Capital Stock
(other than Disqualified Capital Stock) of the Company which has been
so converted or exercised or exchanged, as the case may be, plus (3)
$10 million. For purposes of determining under this clause (c) the
amount expended for Restricted Payments, cash distributed shall be
valued at the face amount thereof and property other than cash shall be
valued at its fair market value.
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The provisions of this Section 4.13 shall not prohibit (i) the
payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture, (ii) the retirement of any shares of Capital Stock
of the Company or Indebtedness which is subordinated in right of payment to the
Notes by conversion into, or by or in exchange for, shares of Capital Stock
(other than Disqualified Capital Stock), or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other shares of Capital Stock of the Company (other than Disqualified Capital
Stock), (iii) the redemption or retirement of Indebtedness of the Company which
is subordinated in right of payment to the Notes in exchange for, by conversion
into, or out of the Net Proceeds of, a substantially concurrent sale or
incurrence of Indebtedness (other than any Indebtedness owed to a Subsidiary of
the Company) of the Company that is contractually subordinated in right of
payment to the Notes to at least the same extent as the subordinated
Indebtedness being redeemed or retired, (iv) the retirement of any shares of
Disqualified Capital Stock by conversion into, or by exchange for, shares of
Disqualified Capital Stock, or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of other shares of
Disqualified Capital Stock, (v) the repurchase, redemption or other acquisition
or retirement for value of any shares of Capital Stock of the Company (other
than Disqualified Capital Stock) solely out of the proceeds of any policy of
insurance maintained to provide funds for such purpose, (vi) the purchase,
redemption or other acquisition for value of shares of Capital Stock of the
Company (other than Disqualified Capital Stock) or options on such shares held
by the Company's or the Restricted Subsidiaries' officers or employees or former
officers or employees (or their estates or beneficiaries under their estates)
upon the death, disability, retirement or termination of employment of such
current or former officers or employees pursuant to the terms of an employee
benefit plan or any other agreement pursuant to which such shares of Capital
Stock or options were issued or pursuant to a severance, buy-sell or right of
first refusal agreement with such current or former officer or employee;
provided that the aggregate cash considerations paid, or distributions made,
pursuant to this clause (vi) do not in any one fiscal year exceed $2 million,
(vii) the making of Investments in Unrestricted Subsidiaries and joint ventures;
provided that the Net Investment therein
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shall not exceed an aggregate of $10 million; provided, however, that the
Company or the Restricted Subsidiaries may make additional Investments pursuant
to this clause (vii) up to an additional Net Investment therein of $20 million
if the Company is able, at the time of any such Investment and immediately after
giving effect thereto, to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.10; provided, further,
that in calculating the aggregate amount of Restricted Payments made subsequent
to the Issue Date for purposes of clause (c) of the immediately preceding
paragraph, the amount of Net Investment made pursuant to clause (vii) shall be
included in the calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.13 were computed, which calculations may
be based upon the Company's latest available financial statements, and that no
Default or Event of Default exists and is continuing and no Default or Event of
Default will occur immediately after giving effect to any Restricted Payments.
Section 4.14. Limitation on Other Senior Subordinated Debt.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur, contingently or
otherwise, any Indebtedness (other than the Notes and the Guarantees, as the
case may be) that is both (i) subordinate in right of payment to any Senior
Indebtedness of the Company or any Guarantor Senior Indebtedness of the
Guarantors, as the case may be, and (ii) senior in right of payment to the Notes
or any of the Guarantees, as the case may be. For purposes of this Section 4.14,
Indebtedness is deemed to be senior in right of payment to the Notes and the
Guarantees, as the case may be, if it is not explicitly subordinate in right of
payment to Senior Indebtedness at least to the same extent as the Notes and the
Guarantees, as the case may be, are subordinate to Senior Indebtedness and
Guarantor Senior Indebtedness, respectively.
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Section 4.15. Limitation on Certain Asset Sales.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such sale or other disposition at least equal to the fair market value
thereof (as determined in good faith by the Company's Board of Directors, and
evidenced by a Board Resolution); (ii) not less than 85% of the consideration
received by the Company or such Restricted Subsidiary, as the case may be, is in
the form of cash or Temporary Cash Investments; provided, however, that the
amount of (x) any liabilities of the Company or any Restricted Subsidiaries that
are assumed by the transferee of such assets, including any Indebtedness of a
Restricted Subsidiary whose stock is purchased by the transferee and (y) any
notes or other securities received by the Company or any such Restricted
Subsidiary which are converted into cash within 180 days of such Asset Sale (to
the extent of cash received) shall be deemed to be cash for purposes of this
provision; provided further that the Company or such Restricted Subsidiary will
not be required to comply with this clause (ii) with respect to a Permitted
Asset Swap or a Houston Disposition; and (iii) the Asset Sale Proceeds received
by the Company or such Restricted Subsidiary are applied (a) first, to the
extent the Company elects, or is required, to prepay, repay or purchase debt
under any then existing Senior Indebtedness of the Company or Guarantor Senior
Indebtedness of any Restricted Subsidiary within 270 days following the receipt
of the Asset Sale Proceeds from any Asset Sale; provided that any such repayment
shall result in a permanent reduction of the commitments thereunder in an amount
equal to the principal amount so repaid; (b) second, to the extent of the
balance of Asset Sale Proceeds after application as described above, to the
extent the Company elects, to an investment in assets (including Capital Stock
or other securities purchased in connection with the acquisition of Capital
Stock or property of another Person) used or useful in businesses similar or
ancillary to the business of the Company and the Restricted Subsidiaries as
conducted at the time of such Asset Sale, provided that such investment occurs
and such Asset Sale Proceeds are so applied within 270 days following the
receipt of such Asset Sale Proceeds (the "Reinvestment Date"); and (c) third, if
on the Reinvestment Date with respect to any Asset Sale, the Available Asset
Sale Proceeds exceed $10 million, the Company shall apply
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an amount equal to such Available Asset Sale Proceeds to an offer to repurchase
the Notes, at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of repurchase (an
"Excess Proceeds Offer"). If an Excess Proceeds Offer is not fully subscribed,
the Company may retain the portion of the Available Asset Sale Proceeds not
required to repurchase Notes.
(b) If the Company is required to make an Excess Proceeds
Offer, the Company shall mail, within 30 days following the Reinvestment Date, a
notice to the Holders with a copy to the Trustee which shall include, among
other things, the instructions, determined by the Company, that such Holder must
follow in order to have such Notes repurchased and the calculations used in
determining the amount of Available Asset Sale Proceeds to be applied to the
repurchase of such Notes. The notice, which shall govern the terms of the Excess
Proceeds Offer, shall also state:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 4.15 and that the Excess Proceeds Offer shall remain open
for a period of 20 Business Days following its commencement or such
longer period as may be required by law (the "Offer Period");
(2) that such Holders have the right to require the Company to
apply the Available Asset Sale Proceeds to repurchase such Notes at a
purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase;
(3) the purchase price and the purchase date (the "Purchase
Date") which shall be no earlier than 30 days and not later than 60
days from the date such notice is mailed;
(4) that any Note not tendered or accepted for payment will
continue to accrue interest;
(5) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date;
(6) that Holders electing to have a Note purchased pursuant to
any Excess Proceeds Offer will be required to
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surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Purchase Date;
(7) that Holders will be entitled to withdraw their election
if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
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 the
Note purchased;
(8) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Available Asset Sale Proceeds, the
Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(9) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
Notes or portions thereof tendered pursuant to the Excess Proceeds Offer,
deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase
price plus accrued interest, if any, on the Notes to be purchased and deliver to
the Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 4.15. The Paying Agent shall promptly (but in any case not later than
three Business Days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Note tendered by such Holder
and accepted by the Company for purchase, and the Company shall promptly issue a
new Note, and the Trustee shall authenticate and mail or make available for
delivery such new Note to such Holder equal in principal amount to any
unpurchased portion of the Note surrendered. Any
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Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Excess
Proceeds Offer on the Purchase Date. If an Excess Proceeds Offer is not fully
subscribed, the Company may retain that portion of the Available Asset Sale
Proceeds not required to repurchase Notes.
Section 4.16. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or any of
the Restricted Subsidiaries owns a minority interest) or holder of 10% or more
of the Company's Common Stock (each of the foregoing, an "Affiliate
Transaction") or extend, renew, waive or otherwise modify the terms of any
Affiliate Transaction entered into prior to the Issue Date unless (i) such
Affiliate Transaction is between or among the Company and/or Wholly-Owned
Restricted Subsidiaries; or (ii) the terms of such Affiliate Transaction are
fair and reasonable to the Company or such Restricted Subsidiary, as the case
may be, and the terms of such Affiliate Transaction are at least as favorable as
the terms which could be obtained by the Company or such Restricted Subsidiary,
as the case may be, in a comparable transaction made on an arm's-length basis
between unaffiliated parties. In any Affiliate Transaction involving an amount
or having a value in excess of $1 million which is not permitted under clause
(i) above, the Company must obtain a Board Resolution approved by a majority of
the members of the Board of Directors of the Company (and a majority of the
disinterested members of the Board of Directors of the Company) certifying that
such Affiliate Transaction complies with clause (ii) above. In transactions with
a value in excess of $5 million which are not permitted under clause (i) above,
the Company must obtain a written opinion as to the fairness of such a
transaction from an independent investment banking firm of nationally recognized
standing.
(b) The foregoing provisions will not apply to (i) any
Restricted Payment that is not prohibited by Section 4.13, (ii) any transaction,
approved by the Board of Directors of the Company, with an officer or director
of the Company or
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of any Restricted Subsidiary in his or her capacity as officer or director
entered into in the ordinary course of business, including compensation and
employee benefit arrangements with any officer or director of the Company or of
any Restricted Subsidiary, or (iii) any Affiliate Transaction entered into prior
to the Issue Date.
Section 4.17. Limitations on Liens.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, create, incur or otherwise cause or suffer to exist
or become effective any Liens of any kind (other than Permitted Liens) upon any
Property of the Company or any Restricted Subsidiary or any shares of stock or
debt of any Restricted Subsidiary which owns Property, now owned or hereafter
acquired, unless (i) if such Lien secures Indebtedness which is pari passu with
the Notes, then the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligation is no longer secured
by a Lien or (ii) if such Lien secures Indebtedness which is subordinated to the
Notes, any such Lien shall be subordinated to the Lien granted to the Holders of
the Notes in the same collateral as that securing such Lien to the same extent
as such subordinated Indebtedness is subordinated to the Notes.
Section 4.18. Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, or permit
any of the Restricted Subsidiaries to create or acquire, any
Subsidiary other than (i) a Restricted Subsidiary existing as of the Issue Date,
(ii) a Restricted Subsidiary conducting a business similar or reasonably related
to the business of the Company and its Subsidiaries as conducted on the Issue
Date or (iii) an Unrestricted Subsidiary.
Section 4.19. Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least equal
to the fair market value of the property sold, as determined by a Board
Resolution of the Company, and (ii) the Company could incur the
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Attributable Indebtedness in respect of such Sale and Lease- Back Transaction in
compliance with Section 4.10.
Section 4.20. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Restricted Subsidiary to (a) pay dividends or
make any other distributions to the Company or any Restricted Subsidiary on its
Capital Stock, (b) pay any Indebtedness owed to the Company or any Restricted
Subsidiary, (c) make loans or advances to the Company or any Restricted
Subsidiary, (d) transfer any of its properties or assets to the Company or any
Restricted Subsidiary, (e) grant Liens on or security interests in the assets of
the Company or the Restricted Subsidiaries in favor of the Holders of the Notes,
or (f) guarantee the Notes or any renewals or refinancings thereof, except for
Permitted Dividend Encumbrances.
Section 4.21. Guarantees of Certain Indebtedness.
The Company will not permit any of the domestic Restricted
Subsidiaries (other than the Guarantors) to (a) incur, guarantee or secure
through the granting of Liens the payment of any Indebtedness under the Senior
Credit Facility or any refinancings thereof or (b) pledge any intercompany notes
representing obligations of any of the Restricted Subsidiaries to secure the
payment of any Indebtedness under the Senior Credit Facility or any refinancings
thereof, in each case unless such Restricted Subsidiary, the Company and the
Trustee execute and deliver a supplemental indenture evidencing such Restricted
Subsidiary's Guarantee under this Indenture. Thereafter, such Restricted
Subsidiary shall be a Guarantor for all purposes of this Indenture.
Section 4.22. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent,
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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 agreed to be paid to
all Holders of the Notes which so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.
Section 4.23. Line of Business.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, engage in any business other than the business of
out-of-home advertising or a substantially similar business.
Section 4.24. Change of Control.
(a) Within 30 days of the occurrence of a Change of Control,
the Company shall notify the Trustee in writing of such occurrence and shall
make an offer to purchase (the "Change of Control Offer") the outstanding Notes
at a purchase price equal to 101% of the principal amount thereof plus any
accrued and unpaid interest thereon to the Change of Control Payment Date (such
purchase price being hereinafter referred to as the "Change of Control Purchase
Price") in accordance with the procedures set forth in this Section 4.24.
If the Senior Credit Facility is in effect, or any amounts are
owing thereunder or in respect thereof, at the time of the occurrence of a
Change of Control, prior to the mailing of the notice to Holders described in
paragraph (b) below, but in any event within 30 days following any Change of
Control, the Company covenants to (i) repay in full all obligations under or in
respect of the Senior Credit Facility or offer to repay in full all obligations
under or in respect of the Senior Credit Facility and repay the obligations
under or in respect of the Senior Credit Facility of each lender who has
accepted such offer or (ii) obtain the requisite consent under the
Senior Credit Facility to permit the repurchase of the Notes pursuant to this
Section 4.24. The Company must first comply with the covenant described in the
preceding sentence before it shall be required to purchase Notes in the event of
a Change of Control; provided that the Company's failure to comply with the
covenant described in the preceding sentence constitutes an Event of Default
described in clause (3) under Section 6.01
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hereof if not cured within 60 days after the notice required by such clause.
(b) Within 30 days of the occurrence of a Change of Control,
the Company also shall (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Jones News Service or similar business news
service in the United States and (ii) send by first-class mail, postage prepaid,
to the Trustee and to each Holder of the Notes, at the address appearing in the
register maintained by the Registrar of the Notes, a notice stating:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.24 and that all Notes tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase
date (which shall be a business day no earlier than 30 business days
nor later than 60 business days from the date such notice is mailed
(the "Change of Control Payment Date"));
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(v) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes to the Paying Agent at the address specified in the
notice prior to the close of business on the business day preceding the
Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the close of
business on the third 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 the Notes
delivered
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for purchase, and a statement that such Holder is withdrawing his
election to have such Notes purchased;
(vii) 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, provided that each Note
purchased and each such new Note issued shall be in an original
principal amount in denominations of $1,000 and integral multiples
thereof;
(viii) any other procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment Notes or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered
to the Trustee Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to each Holder of Notes so accepted
payment in an amount equal to the purchase price for such Notes, and
the Company shall execute and issue, and the Trustee shall promptly
authenticate and mail to such Holder, a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered; provided
that each such new Note shall be issued in an original principal amount
in denominations of $1,000 and integral multiples thereof.
(c) (i) If the Company or any Restricted Subsidiary has issued
any outstanding (A) Indebtedness that is subordinated in right of payment to the
Notes or the Guarantee of such Restricted Subsidiary or (B) Preferred Stock, and
the Company or such Restricted Subsidiary is required to repurchase, or make an
offer to repurchase, such Indebtedness, or redeem, or make an offer to redeem,
such Preferred Stock or to make a distribution with respect to such subordinated
Indebtedness or Preferred Stock in the event of a change of control, the Company
or such Restricted Subsidiary shall not
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consummate any such offer or distribution with respect to such subordinated
Indebtedness or Preferred Stock until such time as the Company shall have paid
the Change of Control Purchase Price in full to the Holders of Notes that have
accepted the Company's Change of Control Offer and shall otherwise have
consummated the Change of Control Offer made to Holders of the Notes and (ii)
the Company or any Restricted Subsidiary will not issue Indebtedness that is
subordinated in right of payment to the Notes or the Guarantee of such
Restricted Subsidiary or Preferred Stock with change of control provisions
requiring the payment of such Indebtedness or Preferred Stock prior to the
payment of the Notes in the event of a Change of Control under this Indenture.
In the event that a Change of Control occurs and the holders
of Notes exercise their right to require the Company to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Company will comply with the requirements of Rule
14e-1 as then in effect with respect to such repurchase.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation,
Merger and Sale of Assets.
(a) The Company will not and will not permit any Guarantor to
consolidate with, merge with or into, or transfer all or substantially all of
its assets (as an entirety or substantially as an entirety in one transaction or
a series of related transactions), to any Person unless: (i) the Company or the
Guarantor, as the case may be, shall be the continuing Person, or the Person (if
other than the Company or the Guarantor) formed by such consolidation or into
which the Company or the Guarantor, as the case may be, is merged or to which
the properties and assets of the Company or the Guarantor, as the case may be,
are transferred shall be a corporation organized and existing under the laws of
the United States or any State thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all of the obligations of the
Company or the
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Guarantor, as the case may be, under the Notes or the Guarantee of such
Guarantor, as the case may be, and this Indenture, and the obligations under
this Indenture shall remain in full force and effect; (ii) immediately before
and immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and (iii) immediately after
giving effect to such transaction on a pro forma basis the Company or such
Person could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.10 hereof, provided that a Person
that is a Guarantor may merge into the Company or another Person that is a
Guarantor without complying with this clause (iii).
(b) In connection with any consolidation, merger or transfer
of assets contemplated by this Section 5.01, the Company shall deliver or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.01 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Guarantor in accordance
with Section 5.01 above, the successor corporation formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture with the same effect as if
such successor corporation had been named as the Company or such Guarantor
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
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ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not
such payment is prohibited by the provisions of Article 11 hereof;
(2) there is a default in the payment of any interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days, whether or not such payment is prohibited by
the provisions of Article 11 hereof;
(3) the Company or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for 60
days after written notice from the Trustee or the Holders of not less
than 25% in the aggregate principal amount of the Notes then
outstanding;
(4) there is a default in the payment at final maturity of
principal in an aggregate amount of $10 million or more with respect to
any Indebtedness of the Company or any Restricted Subsidiary which
default shall not be cured, waived or postponed pursuant to an
agreement with the holders of such Indebtedness within 60 days after
written notice, or the acceleration of any such Indebtedness
aggregating $10 million or more which acceleration shall not be
rescinded or annulled within 20 days after written notice to the
Company of such Default by the Trustee or any Holder;
(5) a court of competent jurisdiction enters a final judgment
or judgments which can no longer be appealed for the payment of money
in excess of $10 million (not covered by insurance) against the Company
or any Restricted Subsidiary and such judgment remains undischarged for
a
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period of 60 consecutive days during which a stay of enforcement of
such judgment shall not be in effect;
(6) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(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
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Lay that:
(A) is for relief against the Company or any
Restricted Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Restricted Subsidiary or for all or substantially all of the
property of the Company or any Restricted Subsidiary, or
(C) orders the liquidation of the Company or any
Restricted Subsidiary,
and the order or decree remains unstayed and in effect for
60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Notes of
any Default (except in payment of principal or
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premium, if any, or interest on the Notes) if the Trustee considers it to be in
the best interest of the Holders of the Notes to do so.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising
under Section 6.01(6) or (7) with respect to the Company) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may by
written notice to the Company and the Trustee declare to be immediately due and
payable the entire principal amount of all the Notes then outstanding plus
accrued and unpaid interest to the date of acceleration and (i) such amounts
shall become immediately due and payable or (ii) if there are any amounts
outstanding under or in respect of the Senior Credit Facility, such amounts
shall become due and payable upon the first to occur of an acceleration under or
in respect of the Senior Credit Facility or five Business Days after receipt by
the Company and the Representative of notice of the acceleration of the Notes;
provided, however, that after such acceleration but before a judgement or decree
based on such acceleration is obtained by the Trustee, the Holders of a majority
in aggregate principal amount of the outstanding Notes may rescind and annul
such acceleration and its consequences if (i) all existing Events of Default,
other than the nonpayment of accelerated principal, premium, if any, or interest
that has become due solely because of the acceleration, have been cured or
waived, (ii) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid and (iii) if
the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto. In case an Event of Default specified in Section 6.01(6) or (7) with
respect to the Company occurs, such principal, premium, if any, and interest
amount with respect to all of the Notes shall be due and payable immediately
without any declaration or other act on the part of the Trustee or the Holders
of the Notes.
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Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or 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 Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of
a majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. 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 Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
Noteholder or that may involve the Trustee in personal liability; provided that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute
any proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note on or after the respective due dates expressed in
the Note, or to bring suit for the enforcement of any such payment on or after
such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of the Holder.
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Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or the Guarantors (or any other obligor on the Notes)
for the whole amount of unpaid principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate then borne by the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company or the
Guarantors (or any other obligor upon the Notes), any of their respective
creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, 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.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or
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the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest as to each, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
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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 rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the same circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
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(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 and 6.05 hereof.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it.
(e) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (d) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
(g) The Trustee shall not have knowledge, or be deemed to have
knowledge, of any Default or Event of Default under this Indenture, other than
notice or knowledge of an Event of Default under subsections (a) or (b) of
Section 6.01 hereof during any period the Trustee is serving as Paying Agent for
the Notes, unless a Responsible Officer of the Trustee receives written notice
of such Default or Event of Default at the address for administrative services
set forth in Section 12.02 hereof specifically referring to this Indenture and
identifying with particularity the Default or Event of Default.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee
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need not investigate any fact or matter stated in any such writing, but
the Trustee, in its discretion, may investigate any such fact or matter
as it may see fit and, if the Trustee shall determine to undertake such
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 12.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed by
it with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(7) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request and any resolution
of the Board of
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Directors may be sufficiently evidenced by a Board Resolution.
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 make loans to, accept deposits from,
perform services for or otherwise deal with the Company or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee 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 sale of Notes or any money paid to the
Company pursuant to the terms of this Indenture and it shall not be responsible
for any recital or statement contained herein or in the Notes other than its
certificate of authentication.
Section 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Noteholder
notice of the Default or the Event of Default, as the case may be, within 90
days after it occurs. Except in the case of a Default or an Event of Default in
payment of the principal of, or premium, if any, or interest on any Note the
Trustee may withhold the notice if and so long as the Board of Directors of the
Trustee, the executive committee or any trust committee of such board and/or its
Trust Officers in good faith determine(s) that withholding the notice is in the
interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 of each year, commencing the May
15 following the date of this Indenture, the Trustee shall mail to each
Noteholder a brief report dated as of such May 15 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and 313(c).
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A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange, if any, on
which the Notes are listed. The Company shall promptly notify the Trustee when
the Notes are listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any provision of law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any and all loss or liability incurred by it in connection
with the acceptance or performance of its duties under this Indenture including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations. Notwithstanding the foregoing, the Company and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Company and the Guarantors in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property held in trust to
pay principal of and interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise 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 notify each
Holder of such event and shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder 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. Immediately following
such delivery, the retiring
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Trustee shall, subject to its rights under Section 7.07 hereof, transfer all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the provision in Section 310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(1) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any
obligor on the Notes)
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in trust for the benefit of Holders of the Notes or the Trustee;
(2) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(3) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to
certificated Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make
any other change that does not materially and adversely affect the
rights of any Noteholder; or
(5) to make any other change that does not, in the opinion of
the Trustee, adversely affect in any material respect the rights of any
Noteholders hereunder.
The Trustee is hereby authorized to join with the Company and
the Guarantors in the execution of any supplemental
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indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects its own rights, duties or immunities under
this Indenture.
Section 8.02. With Consent of Holders.
The Company, the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes with the written consent of the Holders of not less than
a majority in aggregate principal amount of the outstanding Notes without notice
to any Noteholder. The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes
without notice to any Noteholder. Subject to Section 8.04, without the consent
of each Noteholder affected, however, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of
interest on any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note;
(4) make any Note payable in money other than that stated in
the Note;
(5) change the amount or time of any payment required by the
Notes or reduce the premium payable upon any redemption of the Notes in
accordance with Paragraph 6 of the Notes, or change the time before
which no such redemption may be made;
(6) waive a default in the payment of the principal of,
interest on, or redemption payment with respect to, any Note;
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(7) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
(8) amend, alter, change or modify the obligation of the
Company to make and consummate a Change of Control Offer in the event
of a Change of Control or make and consummate an Excess Proceeds Offer
after such obligation has arisen or waive any Default in the
performance of any such offers or modify any of the provisions or
definitions with respect to any such offers;
(9) affect the ranking of the Notes or the Guarantees in a
manner adverse to the Holders; or
(10) take any other action otherwise prohibited by this
Indenture to be taken without the consent of each holder affected
thereby.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
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Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (10) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note; provided that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Note, on or after the respective due
dates expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee may request the Holder of the Note
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to deliver it to the Trustee. In such case, the Trustee shall place an
appropriate notation on the Note about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Note shall issue and the Trustee shall authenticate a new
security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such
amendment supplement or waiver.
Section 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company or any Guarantor may not sign an amendment or
supplement until the Board of Directors of the Company or such Guarantor, as
appropriate, approves it.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations
under the Notes, the Guarantees and this Indenture, except the obligations
referred to in the last paragraph of this Section 9.01, if there shall have been
cancelled by the Trustee or delivered to the Trustee for cancellation all Notes
theretofore authenticated and delivered (other than any Notes that are asserted
to have been destroyed, lost or stolen and that shall have been replaced as
provided in Section 2.07 hereof) and the Company has paid all sums payable by it
hereunder or deposited all required sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge
in writing the discharge of the Company's and the
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Guarantors' obligations under the Notes, the Guarantees and this Indenture
except for those surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof
shall survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be
discharged from its obligations with respect to the Notes and the Guarantors
discharged from their obligations under the Guarantees on the date the
conditions set forth in Section 9.04 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Notes and to have satisfied all its other obligations under such Notes
and this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 9.06 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Notes to receive solely from the trust funds described in
Section 9.04 hereof and as more fully set forth in such Section , payments in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (B) the Company's obligations with respect to such Notes
under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 4.09 hereof, (C) the
rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.07 hereof) and (D) this Article 9. Subject to compliance with this Article 9,
the Company may exercise its option under this Section 9.02 with respect to the
Notes notwithstanding the prior exercise of its option under Section 9.03 below
with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution,
the Company and the Guarantors shall be released from their respective
obligations under Sections 4.02 through 4.08 and Sections 4.10 through 4.24
hereof, inclusive, and clause (a)(iii) of Section 5.01 hereof with respect to
the
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outstanding Notes on and after the date the conditions set forth in Section 9.04
hereof are satisfied (hereinafter, "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that the Company and the Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any such
specified Section or portion thereof to any other provision herein or in any
other document, but the remainder of this Indenture and the Notes shall be
unaffected thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
Section 9.02 or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with the
provisions of this Article 9 applicable to it) as funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Notes, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the maturity date
of such principal, premium, if any, or interest, or on dates for
payment and redemption of such principal, premium, if any, and interest
selected in accordance with the terms of this Indenture and of the
Notes;
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(2) no Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, or
shall have occurred and be continuing at any time during the period
ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference
period under any Bankruptcy Law applicable to the Company in respect of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes of the
TIA with respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any
other agreement or instrument to which the Company is a party or by
which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the trust nor the Trustee will be required
to register as an investment company under the Investment Company Act
of 1940, as amended;
(6) in the case of an election under Section 9.02 above, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that
or (ii) there has been a change in any applicable Federal income tax
law with the effect that, and such opinion shall confirm that, the
Holders of the outstanding Notes or persons in their positions will not
recognize income, gain or loss for Federal income tax purposes solely
as a result of such Legal Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner, including as a
result of prepayment, and at the same times as would have been the case
if such Legal Defeasance had not occurred;
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(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect 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;
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance under Section 9.02 above or the Covenant Defeasance under
Section 9.03 hereof (as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) was not
made by the Company with the intent of defeating, hindering, delaying
or defrauding any creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment
under terms mutually satisfactory to the Company and the Trustee all
amounts then due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust; Other
Miscellaneous Provisions.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 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 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 accrued interest, but such
money need not be segregated from other funds except to the extent required by
law.
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The Company and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided, however, that if
the Company or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under
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the provisions of this Indenture shall, upon demand of the Company, be paid to
the Trustee, or if sufficient moneys have been deposited pursuant to Section
9.01 hereof, to the Company (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company or the Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then
held by the Company or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
however, that the Trustee or any such Paying Agent, before being required to
make any such repayment, may, at the expense of the Company and the Guarantors,
either mail to each Noteholder affected, at the address shown in the register of
the Notes maintained by the Registrar pursuant to Section 2.03 hereof, or cause
to be published once a week for two successive weeks, in a newspaper published
in the English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a 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 mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Company. After payment to the
Company or the Guarantors or the release of any money held in trust by the
Company or any Guarantors, as the case may be, Noteholders entitled to the money
must look only to the Company and the Guarantors for payment as general
creditors unless applicable abandoned property law designates another person.
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ARTICLE 10.
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor
hereby jointly and severally unconditionally guarantees to each Holder and to
the Trustee, on behalf of the Holders, (i) the due and punctual payment of the
principal of, and premium, if any, and interest on each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal of,
and premium, if any, and interest on the Notes, to the extent lawful, and the
due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor
hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto by the
Holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
Each Guarantor hereby waives diligence, presentment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to any
such Note except by payment in full of the principal thereof, premium if any,
and interest thereon and as provided in Section 9.01 hereof. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed hereby may be
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accelerated as provided in Article 6 hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6 hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided for
in this Article 10 and not discharged.
The Guarantee set forth in this Section 10.01 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
Section 10.02. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each
Guarantor hereby agrees that a notation of such Guarantee shall be placed on
each Note authenticated and made available for delivery by the Trustee and that
this Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of each Guarantor.
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Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any guarantees of
Senior Indebtedness) and after giving effect to any collections from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under its Guarantee or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Guarantor
under the Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Guarantor that makes a payment or
distribution under a Guarantee shall be entitled to a contribution from each
other Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Guarantor.
Section 10.04. Additional Guarantors.
The Company covenants and agrees that it will cause any Person
which becomes obligated to guarantee the Notes, pursuant to the terms of Section
4.21 hereof, to execute a guarantee in form substantially the same as the
Guarantees executed by the initial Guarantors pursuant to which such Restricted
Subsidiary shall guarantee the obligations of the Company under the Notes and
this Indenture in accordance with this Article 10 with the same effect and to
the same extent as if such Person had been named herein as a Guarantor.
Section 10.05. Release of Guarantor.
A Guarantor shall be released from all of its obligations
under its Guarantee if:
(i) the Guarantor has sold all or substantially all of its
assets or the Company and its Restricted Subsidiaries have sold all of
the Capital Stock of the Guarantor owned by them, in each case in a
transaction in compliance with Sections 4.15 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates with,
or transfers all or substantially all of its assets to, the Company or
another Guarantor in a transaction in compliance with Section 5.01
hereof;
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and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 10.06. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness.
Each Guarantor covenants and agrees, and each Holder of Notes,
by its acceptance thereof, likewise covenants and agrees, that to the extent and
in the manner hereinafter set forth in this Article 10, the Indebtedness
represented by the Guarantee and the payment of the principal of, premium, if
any, and interest on the Notes pursuant to the Guarantee by such Guarantor are
hereby expressly made subordinate and subject in right of payment as provided in
this Article 10 to the prior payment in full in cash or Cash Equivalents or, as
acceptable to the holders of Guarantor Senior Indebtedness of such Guarantor, in
any other manner, of all Guarantor Senior Indebtedness of such Guarantor.
This Section 10.06 and the following Sections 10.07 through
10.11 shall constitute a continuing offer to all Persons who, in reliance upon
such provisions, become holders of or continue to hold Guarantor Senior
Indebtedness of any Guarantor; and such provisions are made for the benefit of
the holders of Guarantor Senior Indebtedness of each Guarantor; and such holders
are made obligees hereunder and they or each of them may enforce such
provisions.
Section 10.07. Payment Over of Proceeds upon Dissolution,
etc., of a Guarantor.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (c) any general assignment for the benefit of creditors or any other
marshaling of assets or liabilities of the Company (except in connection with
the merger or consolidation of the Company or its liquidation or dissolution
following the transfer of substantially all of its
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assets in accordance with Section 5.01 hereof) then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness of such
Guarantor shall be entitled to receive payment in full in cash or Cash
Equivalents or, as acceptable to the holders of such Guarantor Senior
Indebtedness, in any other manner, of all amounts due on or in respect
of all such Guarantor Senior Indebtedness, or provision shall be made
for such payment, before the Holders of the Notes are entitled to
receive, pursuant to the Guarantee of such Guarantor, any payment or
distribution of any kind or character by such Guarantor on account of
any of its Obligations on its Guarantee; and
(2) any payment or distribution of assets of such Guarantor of
any kind or character, whether in cash, property or securities, by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the subordination provisions of this Article 10 shall
be paid by the liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Guarantor
Senior Indebtedness of such Guarantor or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Guarantor Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Guarantor Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full in cash or Cash Equivalents or, as acceptable to
the Holders of such Guarantor Senior Indebtedness of such Guarantor, in
any other manner, of all such Guarantor Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 10.07, the Trustee or the Holder of any Note
shall have received any payment or distribution of assets of such
Guarantor of any kind or character, whether in cash, property or
securities, including, without limitation, by way of set-off or
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otherwise, in respect of any of its Obligations on its Guarantee before
all Guarantor Senior Indebtedness of such Guarantor is paid in full or
payment thereof provided for, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of such
Guarantor for application to the payment of all such Guarantor Senior
Indebtedness remaining unpaid, to the extent necessary to pay all of
such Guarantor Senior Indebtedness in full in cash, Cash Equivalents
or, as acceptable to the holders of such Guarantor Senior Indebtedness,
any other manner, after giving effect to any concurrent payment or
distribution to or for the holders of such Guarantor Senior
Indebtedness.
The consolidation of a Guarantor with, or the merger of a
Guarantor with or into, another Person or the liquidation or dissolution of a
Guarantor following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person upon the terms and
conditions set forth in Article 5 hereof shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of creditors
or marshaling of assets and liabilities of such Guarantor for the purposes of
this Article 10 if the Person formed by such consolidation or the surviving
entity of such merger or the Person which acquires by conveyance, transfer or
lease such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, conveyance, transfer or
lease, comply with the conditions set forth in such Article 5 hereof.
Section 10.08. Suspension of Guarantee Obligations
When Guarantor Senior Indebtedness
in Default.
(a) Unless Section 10.07 hereof shall be applicable, after the
occurrence of a Payment Default with respect to any Designated Senior
Indebtedness which constitutes Guarantor Senior Indebtedness, no payment or
distribution of any assets or securities of a Guarantor (or any Restricted
Subsidiary or Subsidiary of such Guarantor) of any kind or character (including,
without limitation, cash, property and any payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of
such Guarantor
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being subordinated to its Obligations on its Guarantee) may be made by or on
behalf of such Guarantor (or any Restricted Subsidiary or Subsidiary of such
Guarantor), including, without limitation, by way of set-off or otherwise, for
or on account of its Obligations on its Guarantee, and neither the Trustee nor
any holder or owner of any Notes shall take or receive from any Guarantor (or
any Subsidiary of such Guarantor), directly or indirectly in any manner, payment
in respect of all or any portion of its Obligations on its Guarantee following
the delivery by the representative of the holders of Designated Senior
Indebtedness under or in respect of the Senior Credit Facility, for so long as
there shall exist any Designated Senior Indebtedness under or in respect of the
Senior Credit Facility, and, thereafter, the holders of Designated Senior
Indebtedness which constitutes Guarantor Senior Indebtedness (in either such
case, the "Guarantor Representative") to the Trustee of written notice of (i)
the occurrence of a Payment Default on Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness or (ii) the occurrence of a
Non-Payment Event of Default on Designated Senior Indebtedness which constitutes
Guarantor Senior Indebtedness and the acceleration of the maturity of such
Designated Senior Indebtedness in accordance with its terms, and in any such
event, such prohibition shall continue until such Payment Default is cured,
waived in writing or ceases to exist or such acceleration has been rescinded or
otherwise cured. At such time as the prohibition set forth in the preceding
sentence shall no longer be in effect, subject to the provisions of the
following paragraph (b), such Guarantor shall resume making any and all required
payments in respect of its Obligations on its Guarantee.
(b) Unless Section 10.07 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
guaranteed by a Guarantor (which guarantee constitutes Guarantor Senior
Indebtedness of such Guarantor), no payment or distribution of any assets of
such Guarantor of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of such Guarantor being
subordinated to its Obligations on its Guarantee) shall be made by such
Guarantor, including, without limitation, by way of set-off or otherwise, on
account of any of its Obligations on its Guarantee, and neither the Trustee nor
any holder or owner of
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any Notes shall take or receive from any Guarantor (or any Restricted Subsidiary
or Subsidiary of such Guarantor), directly or indirectly in any manner, payment
in respect of all or any portion of its Obligations on its Guarantee for a
period (the "Guarantee Payment Blockage Period") commencing on the date of
receipt by the Trustee of written notice from the Guarantor Representative of
such Non-Payment Event of Default, unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (x) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, (y)
such Non-Payment Event of Default shall have been cured or waived in writing or
shall have ceased to exist or such Designated Senior Indebtedness shall have
been discharged or paid in full in cash or Cash Equivalents or (z) such
Guarantee Payment Blockage Period shall have been terminated by written notice
to such Guarantor or the Trustee from the Guarantor Representative initiating
such Guarantee Payment Blockage Period, or the holders of at least a majority in
principal amount of such issue of Designated Senior Indebtedness, after which,
in the case of clause (x), (y) or (z), such Guarantor shall resume making any
and all required payments in respect of its Obligations on its Guarantee.
Notwithstanding any other provisions of this Indenture, no Non-Payment Event of
Default with respect to Designated Senior Indebtedness which existed or was
continuing on the date of the commencement of any Guarantee Payment Blockage
Period initiated by the Guarantor Representative shall be, or be made, the basis
for the commencement of a second Guarantee Payment Blockage Period initiated by
the Guarantor Representative unless such event of default shall have been cured
or waived for a period of not less than 90 consecutive days. In no event shall a
Guarantee Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the notice referred to in this Section 10.08(b) or, in
the event of a Non-Payment Event of Default which formed the basis for a Payment
Blockage Period under Section 11.03(b) hereof, 179 days from the date of the
receipt by the Trustee of the notice referred to in Section 11.03(b) (the
"Initial Guarantee Blockage Period"). Any number of additional Guarantee Payment
Blockage Periods may be commenced during the Initial Guarantee Blockage Period;
provided, however, that no such additional Guarantee Payment Blockage Period
shall extend beyond the Initial Guarantee Blockage Period. After the expiration
of the Initial Guarantee Blockage Period, no Guarantee Payment Blockage Period
may be
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commenced under this Section 10.08(b) and no Payment Blockage Period may be
commenced under Section 11.03(b) hereof until at least 180 consecutive days have
elapsed from the last day of the Initial Guarantee Blockage Period.
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Note shall have received any payment from a
Guarantor prohibited by the foregoing provisions of this Section 10.08, then and
in such event such payment shall be paid over and delivered forthwith to the
Guarantor Representative initiating the Guarantee Payment Blockage Period, in
trust for distribution to the holders of Guarantor Senior Indebtedness or, if no
amounts are then due in respect of Guarantor Senior Indebtedness, promptly
returned to the Guarantor, or as a court of competent jurisdiction shall direct.
Section 10.09. Subrogation to Rights of Holders
of Guarantor Senior Indebtedness.
Upon the payment in full of all amounts payable under or in
respect of all Guarantor Senior Indebtedness of a Guarantor, the Holders shall
be subrogated to the rights of the holders of such Guarantor Senior Indebtedness
to receive payments and distributions of cash, property and securities of such
Guarantor made on such Guarantor Senior Indebtedness until all amounts due to be
paid under the Guarantee shall be paid in full. For the purposes of such
subrogation, no payments or distributions to holders of Guarantor Senior
Indebtedness of any cash, property or securities to which Holders of the Notes
or the Trustee would be entitled except for the provisions of this Article 10,
and no payments over pursuant to the provisions of this Article 10 to holders of
Guarantor Senior Indebtedness by Holders of the Notes or the Trustee, shall, as
among each Guarantor, its creditors other than holders of Guarantor Senior
Indebtedness and the Holders of the Notes, be deemed to be a payment or
distribution by such Guarantor to or on account of such Guarantor Senior
Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to the provisions of this Article 10, to the payment
of all amounts payable under Guarantor Senior Indebtedness, then and in such
case, the Holders shall be entitled to receive from the holders
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of such Guarantor Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of Guarantor Senior Indebtedness in
excess of the amount sufficient to pay all amounts payable under or in respect
of such Guarantor Senior Indebtedness in full in cash or Cash Equivalents.
Section 10.10. Guarantee Subordination Provisions
Solely To Define Relative Rights._
The subordination provisions of this Article 10 are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Notes on the one hand and the holders of Guarantor Senior Indebtedness on
the other hand. Nothing contained in this Article 10 or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as among each
Guarantor, its creditors other than holders of its Guarantor Senior Indebtedness
and the Holders of the Notes, the obligation of such Guarantor, which is
absolute and unconditional, to make payments to the Holders in respect of its
Obligations on its Guarantee in accordance with its terms; or (b) affect the
relative rights against such Guarantor of the Holders of the Notes and creditors
of such Guarantor other than the holders of the Guarantor Senior Indebtedness;
or (c) prevent the Trustee or the Holder of any Note from exercising all
remedies otherwise permitted by applicable law upon a Default or an Event of
Default under this Indenture, subject to the rights, if any, under this Article
10 of the holders of Guarantor Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Company referred
to in Section 10.07 hereof, to receive, pursuant to and in accordance with such
Section , cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 10.08
hereof, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 10.08(c) hereof.
The failure by any Guarantor to make a payment in respect of
its obligations on its Guarantee by reason of any provision of this Article 10
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
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Section 10.11. Application of Certain Article 11 Provisions.
The provisions of Sections 11.04, 11.07, 11.08, 11.09, 11.10,
11.12 and 11.13 hereof shall apply, mutatis mutandis, to each Guarantor and
their respective holders of Guarantor Senior Indebtedness and the rights, duties
and obligations set forth therein shall govern the rights, duties and
obligations of each Guarantor, the holders of Guarantor Senior Indebtedness, the
Holders and the Trustee with respect to the Guarantee and all references therein
to Article 11 hereof shall mean this Article 10.
ARTICLE 11.
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Notes, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article 11, the Indebtedness
represented by the Notes and the payment of the principal of, premium, if any,
and interest on the Notes are hereby expressly made subordinate and subject in
right of payment as provided in this Article 11 to the prior payment in full in
cash or Cash Equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, of all Senior Indebtedness.
This Article 11 shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of or continue to
hold Senior Indebtedness; and such provisions are made for the benefit of the
holders of Senior Indebtedness; and such holders are made obligees hereunder and
they or each of them may enforce such provisions.
Section 11.02. Payment Over of Proceeds upon
Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its
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assets, whether voluntary or involuntary or (b) any liquidation, dissolution or
other winding-up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any general assignment for the
benefit of creditors or any other marshalling of assets or liabilities of the
Company (except in connection with the merger or consolidation of the Company or
its liquidation or dissolution following the transfer of substantially all of
its assets in accordance with Section 5.01 hereof), then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents or, as acceptable
to the holders of Senior Indebtedness, in any other manner, of all
amounts due on or in respect of all Senior Indebtedness, or provision
shall be made for such payment, before the Holders of the Notes are
entitled to receive any payment or distribution of any kind or
character on account of principal of, premium, if any, or interest on
the Notes; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article 11 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash, Cash Equivalents or, as
acceptable to the holders of Senior Indebtedness, in any other manner,
of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution, or provision therefor, to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 11.02, the Trustee or the
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Holder of any Note shall have received any payment or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, including, without limitation, by way of
set-off or otherwise, in respect of principal of, premium, if any, and
interest on the Notes before all Senior Indebtedness is paid in full or
payment thereof provided for, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the
Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full in cash, Cash Equivalents or, as acceptable to the
holders of Senior Indebtedness, any other manner, after giving effect
to any concurrent payment or distribution, or provision therefor, to or
for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article 11 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 11.02 hereof shall be applicable, after the
occurrence of a Payment Default no payment or distribution of any assets or
securities of the Company or any Restricted Subsidiary of any kind or character
(including, without limitation, cash, property and any payment or distribution
which may be payable or deliverable by reason of the payment of any other
Indebtedness of the Company being
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subordinated to the payment of the Notes by the Company) may be made by or on
behalf of the Company or any Restricted Subsidiary, including, without
limitation, by way of set-off or otherwise, for or on account of principal of,
premium, if any, or interest on the Notes, or for or on account of the purchase,
redemption or other acquisition of the Notes, and neither the Trustee nor any
holder or owner of any Notes shall take or receive from the Company or any
Restricted Subsidiary, directly or indirectly in any manner, payment in respect
of all or any portion of Notes following the delivery by the representative of
the holders of Designated Senior Indebtedness under or in respect of the Senior
Credit Facility and, thereafter, the holders of Designated Senior Indebtedness
(in either such case, the "Representative") to the Trustee of written notice of
(i) the occurrence of a Payment Default on Designated Senior Indebtedness or
(ii) the occurrence of a Non-Payment Event of Default on Designated Senior
Indebtedness and the acceleration of the maturity of Designated Senior
Indebtedness in accordance with its terms, and in any such event, such
prohibition shall continue until such Payment Default is cured, waived in
writing or ceases to exist or such acceleration has been rescinded or otherwise
cured. At such time as the prohibition set forth in the preceding sentence shall
no longer be in effect, subject to the provisions of the following paragraph
(b), the Company shall resume making any and all required payments in respect of
the Notes, including any missed payments.
(b) Unless Section 11.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness,
no payment or distribution of any assets or securities of the Company of any
kind or character (including, without limitation, cash, property and any payment
or distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of the Company being subordinated to the payment of the
Notes by the Company) shall be made by or on behalf of the Company, including,
without limitation, by way of set-off or otherwise, on account of any principal
of, premium, if any, or interest on the Notes or on account of the purchase,
redemption, defeasance or other acquisition of Notes, and neither the Trustee
nor any holder or owner of any Notes shall take or receive from the Company,
directly or indirectly in any manner, payment in respect of all or any portion
of the Notes, for a period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee of written notice from the Representative of
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such Non-Payment Event of Default unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (x) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, (y)
such Non-Payment Event of Default shall have been cured or waived in writing or
shall have ceased to exist or such Designated Senior Indebtedness shall have
been discharged or paid in full in cash or Cash Equivalents or (z) such Payment
Blockage Period shall have been terminated by written notice to the Company or
the Trustee from the Representative initiating such Payment Blockage Period, or
the holders of at least a majority in principal amount of such issue of
Designated Senior Indebtedness, after which, in the case of clause (x), (y) or
(z), the Company shall resume making any and all required payments in respect of
the Notes, including any missed payments. Notwithstanding any other provisions
of this Indenture, no Non-Payment Event of Default with respect to Designated
Senior Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period initiated by the Representative
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period initiated by the Representative unless such event of default
shall have been cured or waived for a period of not less than 90 consecutive
days. In no event shall a Payment Blockage Period extend beyond 179 days from
the date of the receipt by the Trustee of the notice referred to in this Section
11.03(b) (the "Initial Blockage Period"). Any number of additional Payment
Blockage Periods may be commenced during the Initial Blockage Period; provided,
however, that no such additional Payment Blockage Period shall extend beyond the
Initial Blockage Period. After the expiration of the Initial Blockage Period, no
Payment Blockage Period may be commenced under this Section 11.03(b) and no
Guarantee Payment Blockage Period may be commenced under Section 10.08(b) hereof
until at least 180 consecutive days have elapsed from the last day of the
Initial Blockage Period.
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Note shall have received any payment prohibited by
the foregoing provisions of this Section 11.03, then and in such event such
payment shall be paid over and delivered forthwith to the Representative
initiating the Payment Blockage Period, in trust for distribution to the holders
of Senior Indebtedness or, if no
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amounts are then due in respect of Senior Indebtedness, promptly returned to the
Company, or otherwise as a court of competent jurisdiction shall direct.
Section 11.04. Trustee's Relation to Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 11, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
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 Indebtedness and the
Trustee shall not be liable to any holder of Senior Indebtedness if it shall
mistakenly pay over or deliver to Holders, the Company or any other Person
moneys or assets to which any holder of Senior Indebtedness shall be entitled by
virtue of this Article 11 or otherwise.
Section 11.05. Subrogation to Rights of Holders
of Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness, the
Holders of the Notes shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any and interest on the Notes shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the provisions of this Article
11, and no payments over pursuant to the provisions of this Article 11 to the
holders of Senior Indebtedness by Holders of the Notes or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 11 shall
have been applied, pursuant to the provisions of this Article 11, to the payment
of all amounts payable under the Senior Indebtedness of the Company, then and
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in such case the Holders shall be entitled to receive from the holders of such
Senior Indebtedness at the time outstanding any payments or distributions
received by such holders of such Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable under or in respect of such Senior
Indebtedness in full in cash or Cash Equivalents.
Section 11.06. Provisions Solely To Define Relative
Rights.
The provisions of this Article 11 are and are intended solely
for the purpose of defining the relative rights of the Holders of the Notes on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Notes, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of the
Notes the principal of, premium, if any, and interest on the Notes as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Notes and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon a Default or an Event of Default
under this Indenture, subject to the rights, if any, under this Article 11 of
the holders of Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding-up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Company referred to in Section
11.02 hereof, to receive, pursuant to and in accordance with such Section ,
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder, or (2) under the conditions specified in Section 11.03, to prevent
any payment prohibited by such Section or enforce their rights pursuant to
Section 11.03(c) hereof.
The failure to make a payment on account of principal of,
premium, if any, or interest on the Notes by reason of any provision of this
Article 11 shall not be construed as preventing the occurrence of a Default or
an Event of Default hereunder.
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Section 11.07. Trustee To Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time to
file such a claim, the holders of Senior Indebtedness, or any Representative,
may file such a claim on behalf of Holders of the Notes.
Section 11.08. No Waiver of Subordination
Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 11.08, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article 11 or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection
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or payment of Senior Indebtedness; and (4) exercise or refrain from exercising
any rights against the Company and any other Person; provided, however, that in
no event shall any such actions limit the right of the Holders of the Notes to
take any action to accelerate the maturity of the Notes pursuant to Article 6
hereof or to pursue any rights or remedies hereunder or under applicable laws if
the taking of such action does not otherwise violate the terms of this
Indenture.
Section 11.09. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Notes. Notwithstanding the
provisions of this Article or any provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Notes, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from a Representative or any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least two business days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Note), then, anything herein contained to the contrary
notwithstanding, but without limiting the rights and remedies of the holders of
Senior Indebtedness or any trustee, fiduciary or agent thereof, the Trustee
shall have full power and authority to receive such money to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it less than two business days
prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or elimination of the act or condition preventing any
such payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) Subject to the provisions of Section 7.01 hereof, the
Trustee shall be entitled to rely on the delivery to it of a written notice to
the Trustee and the Company by a
<PAGE> 107
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Person representing itself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor);
provided, however, that failure to give such notice to the Company shall not
affect in any way the ability of the Trustee to rely on such notice. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 11, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 11.10. Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article 11, the Trustee, subject to the provisions of
Section 7.01 hereof, and the Holders shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 11.
<PAGE> 108
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Section 11.11. Rights of Trustee as a Holder of
Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article 11 with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article 11
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
Section 11.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 11 shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article 11 in addition to or in place of the Trustee.
Section 11.13. No Suspension of Remedies.
Nothing contained in this Article 11 shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article 6 or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article 11 of the holders, from time to time, of Senior Indebtedness.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
<PAGE> 109
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Section 12.02. Notices.
Any notice or communication shall be given in writing and
delivered in person, sent by facsimile, delivered by commercial courier service
or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Outdoor Systems, Inc.
2502 N. Black Canyon Highway
Phoenix, Arizona 85009
Attention: Chief Financial Officer
Copy to:
Powell, Goldstein, Frazer & Murphy
191 Peachtree Street, N.E., 16th Floor
Atlanta, Georgia 30303
Attention: William B. Shearer, Jr., Esq.
If to the Trustee:
(a) For Presentment of Notes and for Payment:
The Bank of New York
101 Barclay Street
7 East
New York, New York 10286
Attention: Bond Operations
(b) For General Trust Administration:
The Bank of New York
Towermarc Plaza
10161 Centurion Parkway
Jacksonville, Florida 32256
The Company, the Guarantors or the Trustee by written notice
to the others may designate additional or different addresses for subsequent
notices or communications. Any notice or communication to the Company, the
Trustee, or the Guarantors shall be deemed to have been given or made as of the
date so delivered if personally delivered; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and five
<PAGE> 110
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(5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.05 below) stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.05 below) stating that, in the opinion of
counsel, all such conditions precedent have been complied with.
<PAGE> 111
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Section 12.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it
or him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
Section 12.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, any Guarantor or any other obligor on the Notes or
by any Affiliate of any of them shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the Trustee actually knows
are so owned shall be so disregarded. Notes so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, a Guarantor or any other obligor
upon the Notes or any Affiliate of any of them.
<PAGE> 112
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Section 12.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
Section 12.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally- recognized holiday or a
day on which banking institutions are not required to be open in the State of
New York. If a payment date is a Legal Holiday 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.
Section 12.09. Governing Law.
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
GUARANTEES.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 12.11. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company 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 creations. Each Noteholder by
accepting a Note waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Notes.
<PAGE> 113
-106-
Section 12.12. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
Section 12.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 12.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 12.15. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or 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.
<PAGE> 114
-107-
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed, and the Company's corporate seal to be hereunto affixed and
attested, all as of the date and year first written above.
OUTDOOR SYSTEMS, INC.
By:
Name:
Title:
ATTEST:
- -------------------------
Name:
Title:
Guarantors:
OUTDOOR SYSTEMS PAINTING, INC.
OS ADVERTISING OF TEXAS
PAINTING, INC.
OS BASELINE, INC.
DECADE COMMUNICATIONS GROUP,
INC.
BENCH ADVERTISING COMPANY OF COLORADO,
INC.
NEW YORK SUBWAYS ADVERTISING
CO., INC.
By:
-------------------------------------
Name:
Title:
ATTEST:
<PAGE> 115
-108-
____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Name:
Title:
ATTEST:
___________________________
Name:
Title:
<PAGE> 116
EXHIBIT A
CUSIP__________
No. $
OUTDOOR SYSTEMS, INC.
9 3/8% SENIOR SUBORDINATED NOTE DUE 2006
Outdoor Systems, Inc., a Delaware corporation (the "Company",
which term includes any successor corporation), for value received promises to
pay to _______________ ______________ or registered assigns the principal sum of
___________________ Dollars, on October 15, 2006.
Interest Payment Dates: April 15 and October 15,
commencing April 15, 1997
Record Dates: April 1 and October 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-1
<PAGE> 117
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
OUTDOOR SYSTEMS, INC.
By:
____________________________
By:
____________________________
[SEAL]
Certificate of Authentication:
This is one of the 9 3/8% Senior
Subordinated Notes due 2006 referred to in
the within-mentioned Indenture
Dated:
THE BANK OF NEW YORK,
as Trustee
By: ___________________________________
Authorized Signatory
A-2
<PAGE> 118
(REVERSE SIDE)
OUTDOOR SYSTEMS, INC.
9 3/8% SENIOR SUBORDINATED NOTE DUE 2006
1. INTEREST.
Outdoor Systems, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note semiannually on
April 15 and October 15 of each year (each an "Interest Payment Date"),
commencing on April 15, 1997 at the rate of 9 3/8% per annum. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. 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 the original issuance of the
Notes.
The Company shall pay interest on overdue principal, and on
overdue premium, if any, and overdue interest, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in
Paragraph 1 above (except defaulted interest) to the person who is the
registered Holder of this Note at the close of business on the April 1 or
October 1 preceding the Interest Payment Date. The Holder must surrender this
Note to a Paying Agent to collect principal payments. The Company will pay
principal, premium, if any, and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts;
provided, however, that the Company may pay principal, premium, if any, and
interest by check payable in such money. It may mail an interest check to the
Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to the Holders of the
Notes. Neither the Company nor any of its Subsidiaries or Affiliates may act as
Paying Agent but may act as registrar or co-registrar.
A-3
<PAGE> 119
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of
October 15, 1996 (the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of this Note include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the
Indenture. This Note is subject to all such terms, and the Holder of this Note
is referred to the Indenture and said Trust Indenture Act for a statement of
them. All capitalized terms in this Note, unless otherwise defined, have the
meanings assigned to them by the Indenture.
The Notes are general unsecured obligations of the Company
limited to $250,000,000 aggregate principal amount (including $10,000,000 that
may be issued pursuant to the Over- allotment Option). The Indenture imposes
certain restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of capital stock by the Company and its
subsidiaries, mergers and sale of assets, the payments of dividends on, or the
repurchase of, capital stock of the Company, certain other restricted payments
by the Company and its subsidiaries, the creation of subsidiaries, certain
transactions with, and investments in, its affiliates.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and
in the manner provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness as defined in the Indenture, and this Note is issued subject to
such provisions. Each Holder of this Note, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee,
on behalf of such Holder, to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee attorney-in-fact of such Holder for such purpose.
6. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company, in
whole or in part, at any time on or after October 15, 2001 at the following
redemption prices (expressed as a percentage of principal amount), together, in
each case, with accrued and unpaid interest to the redemption date, if redeemed
A-4
<PAGE> 120
during the twelve-month period beginning on October 15, of each year listed
below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2001.......................................... 104.688%
2002.......................................... 103.125%
2003.......................................... 101.563%
2004 and thereafter........................... 100.000%
</TABLE>
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 35% of the original principal amount of the Notes at any time
and from time to time prior to October 15, 1999 at a redemption price equal to
110% of the aggregate principal amount so redeemed, plus accrued interest to the
redemption date out of the Net Proceeds of one or more Public Equity Offerings;
provided, that at least $156.0 million (which amount shall be increased
proportionately if the Over- allotment Option is exercised, up to $162.5 million
outstanding if such Over-allotment Option is exercised in full) of the principal
amount of the Notes originally issued remain outstanding immediately after the
occurrence of any such redemption and that any such redemption occurs within 60
days following the closing of any such Public Equity Offering.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first-class mail at
least 30 days but not more than 60 days prior to the redemption date to each
Holder of Notes to be redeemed at its registered address as it shall appear on
the register of the Notes maintained by the Registrar. On and after any
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales
be used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth in
the Indenture. The Company is also required to make an offer to purchase Notes
upon occurrence of a Change of Control in accordance with procedures set forth
in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
A-5
<PAGE> 121
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. A Holder may register
the transfer or exchange of Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Note selected for redemption or register the transfer of or
exchange any Note for a period of 15 days before a selection of Notes to be
redeemed or any Note after it is called for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner
of it for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on
any Note remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its request. After that, Holders entitled to
money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may
be modified, amended or supplemented by the Company, the Guarantors and the
Trustee with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding and any existing default or compliance with
any provision may be waived in a particular instance with the consent of the
Holders of a majority in principal amount of the Notes then outstanding. Without
the consent of Holders, the Company, the Guarantors and the Trustee may amend
the Indenture or the Notes or supplement the Indenture for certain specified
purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or making
any other change that does not materially and adversely affect the rights of any
Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of
its predecessor under the Notes and the
A-6
<PAGE> 122
Indenture and immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor corporation will be released
from those obligations.
14. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the Notes then outstanding may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company, any Guarantor or their Affiliates, and may otherwise deal with
the Company, any Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company or any Guarantor shall not have
any liability for any obligations of the Company or any Guarantor under the
Notes or the Indenture or for any claim based on, in respect or by reason of,
such obligations or their creation. The Holder of this Note by accepting this
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
A-7
<PAGE> 123
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of
a Note 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).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP Numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. 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.
20. GOVERNING LAW.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE INDENTURE OR THIS NOTE.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON
WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE.
REQUESTS MAY BE MADE TO: OUTDOOR SYSTEMS, INC., 2502 N. BLACK
CANYON HIGHWAY, PHOENIX, ARIZONA 85009, Attention: Chief
Financial Officer.
A-8
<PAGE> 124
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Agent 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 other side of
this Note)
Signature Guarantee:
---------------------------------
A-9
<PAGE> 125
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Each Guarantor (the "Guarantor", which term includes any
successor Person under the Indenture) has unconditionally guaranteed, on a
senior subordinated basis, jointly and severally, to the extent set forth in the
Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on overdue principal, and, to the extent permitted by law, interest, and the due
and punctual performance of all other Obligations of the Company to the
Noteholders or the Trustee all in accordance with the terms set forth in Article
10 of the Indenture, and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Noteholders and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized signatories.
Guarantors:
OUTDOOR SYSTEMS PAINTING, INC.
OS ADVERTISING OF TEXAS
PAINTING, INC.
A-10
<PAGE> 126
OS BASELINE, INC.
DECADE COMMUNICATIONS GROUP,
INC.
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
NEW YORK SUBWAYS ADVERTISING
CO., INC.
By:
-------------------------
Name:
Title:
A-11
<PAGE> 127
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.15 or Section 4.24 of the
Indenture, check the appropriate box:
/ / Section 4.15 / / Section 4.24
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.15 or Section 4.24 of the Indenture, state the
amount you elect to have purchased:
$
-----------------
Date:
------------
Your Signature:
------------------------------------
(Sign exactly as your name appears on the face
of this Note)
- ---------------------------
Signature Guaranteed
A-12
<PAGE> 1
EXHIBIT 99.2
OUTDOOR SYSTEMS, INC.
$240,000,000
93/8% Senior Subordinated Notes due 2006
UNDERWRITING AGREEMENT
October 9, 1996
CIBC WOOD GUNDY SECURITIES CORP.
ALEX. BROWN & SONS INCORPORATED
c/o CIBC Wood Gundy Securities Corp.
425 Lexington Avenue
3rd Floor
New York, New York 10017
Ladies and Gentlemen:
Outdoor Systems, Inc., a Delaware corporation (the "Company"),
and each of the Company's subsidiaries listed in Exhibit A hereto (each, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors" and,
together with the Company, the "Issuers") hereby confirm their agreement with
you (the "Underwriters"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Underwriters
$240,000,000 aggregate principal amount of its 93/8% Senior Subordinated Notes
due 2006 (the "Firm Notes"). In addition, the Company has granted the
Underwriters an option, subject to certain conditions, to purchase up to an
additional $10,000,000 aggregate principal amount of the Notes (the "Option
Notes" and, together with the Firm Notes, the "Notes") to cover over-allotments,
if any. The obligations of the Company under the Indenture (as hereinafter
defined) and the Notes will be unconditionally guaranteed (the "Guarantees"), on
a joint and several basis, by each Subsidiary Guarantor. The Notes and the
Guarantees are to be issued pursuant to the Indenture (the "Indenture"), dated
as of October 15, 1996, among the Company, The Bank of New York, a New York
banking corporation, as trustee (the "Trustee"), and the Subsidiary Guarantors.
The Notes and the Guarantees are hereinafter referred to collectively as the
"Securities."
<PAGE> 2
-2-
2. Representations and Warranties of the Issuers. The Issuers,
jointly and severally, represent and warrant to and agree with the Underwriters
that:
(a) A registration statement on Form S-3 (File No. 333-9713)
with respect to the Securities, including a prospectus, subject to
completion, has been filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended
(together with the rules and regulations of the Commission promulgated
thereunder, the "Act") by the Issuers with respect to the Securities;
and one or more amendments to such registration statement also have
been so filed. After the execution of this Agreement, the Issuers will
file with the Commission either (x) if such registration statement, as
it may have been amended, has been declared by the Commission to be
effective under the Act prior to the execution and delivery hereof, a
prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed,
in such registration statement) with only such changes or insertions
therein as are required by Rule 430A under the Act or permitted by Rule
424(b) under the Act and as have been provided to and approved by the
Underwriters or their counsel prior to the filing thereof and as to
which the Underwriters shall not have reasonably objected; or (y) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act prior to the
execution and delivery hereof, an amendment to such registration
statement, including a form of final prospectus, a copy of which
amendment has been furnished to and approved by the Underwriters or
their counsel prior to the proposed filing thereof. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including
any information omitted therefrom pursuant to Rule 430A under the Act
and included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus, subject to completion,
filed with such registration statement or any amendment thereto
(including the prospectus, subject to completion, if any, included in
the Registration Statement or any amendment thereto at the time it was
or is declared effective); and the term "Prospectus" means the
prospectus first filed with
<PAGE> 3
-3-
the Commission pursuant to Rule 430A and Rule 424(b), if required, or,
if no prospectus is required to be filed pursuant to Rule 430A or Rule
424(b), such term means the prospectus included in such Registration
Statement, provided that if a revised prospectus shall be provided to
the Underwriters by the Company for use in connection with the offering
and sale of the Securities that differs from the prospectus on file at
the Commission at the time such Registration Statement becomes
effective or as first filed under Rule 430A and Rule 424(b), the term
"Prospectus" shall refer to the revised prospectus from and after the
time it is first provided to the Underwriters for such use. If the
Company has filed an abbreviated registration statement to register
additional securities pursuant to Rule 462(b) under the Act (the "Rule
462 Registration Statement") then any reference herein to "Registration
Statement" shall be deemed to include such Rule 462 Registration
Statement. All references in this Agreement to the Registration
Statement, Preliminary Prospectus and Prospectus and to financial
statements and schedules and other information that is "contained,"
"included," "set forth," "described in" or "stated" therein (and all
other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that
is or is deemed to be incorporated by reference therein; and all
references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (together with the
rules and regulations of the Commission promulgated thereunder, the
"1934 Act"), that is or is deemed to be incorporated by reference
therein.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus nor instituted any
proceeding for such purpose. When the Registration Statement or any
amendment thereto was or is declared effective, it (i) contained all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of the Act and (ii) did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. When the Registration Statement becomes effective, the
Indenture will have been
<PAGE> 4
-4-
qualified under and will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (together
with the rules and regulations of the Commission thereunder, "Trust
Indenture Act"). The Prospectus, and any amendment or supplement
thereto, on the date first filed with the Commission pursuant to Rule
424(b) (or if not filed, on the date first provided to the Underwriters
in connection with the offering and sale of the Securities) and on the
Closing Date (iii) complied or will comply in all material respects
with the requirements of the Act and (ii) did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The foregoing provisions of this paragraph
(b) do not apply to statements or omissions in the Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
specifically for use therein, or to the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
filed as an exhibit to the Registration Statement.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act, and when read together
with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or becomes
effective and at the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(d) Each of the Issuers and the Subsidiaries (as hereinafter
defined) has been duly incorporated and each of the Issuers and the
Subsidiaries is validly existing in good standing as a corporation
under the laws of its jurisdiction of incorporation, with the requisite
corporate power and authority to own its properties and conduct its
business as
<PAGE> 5
-5-
now conducted as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, individually or
in the aggregate, have a material adverse effect on the business,
condition (financial or other), prospects or results of operations of
the Company and the Subsidiaries, taken as a whole, (any such event, a
"Material Adverse Effect"); the Company had as of the date specified
therein the authorized, issued and outstanding capitalization set forth
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus); except as set forth in Exhibit B
hereto, the Company does not have any subsidiaries (the "Subsidiaries")
or own directly or indirectly any of the capital stock or other equity
securities of any other person; all of the outstanding shares of
capital stock of the Issuers and the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and
were not issued in violation of any preemptive or similar rights and
are owned free and clear of all liens, encumbrances, equities and
restrictions on transferability (other than those imposed by the Act
and the state securities or "Blue Sky" laws); except as set forth in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), all of the outstanding shares of
capital stock of the Subsidiaries are owned, directly or indirectly, by
the Company, free and clear of all liens, encumbrances, equities and
restrictions on transferability (other than those imposed by the Act
and the State securities or "Blue Sky" laws); except as set forth in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), no options,
warrants or other rights to purchase from the Company or any
Subsidiary, agreements or other obligations of the Company or any
Subsidiary to issue or other rights to convert any obligation into, or
exchange any securities for, shares of capital stock of or ownership
interests in the Company or any Subsidiary are outstanding; and no
holder of securities of the Company or any Subsidiary is entitled to
have such securities registered under the Registration Statement.
<PAGE> 6
-6-
(e) The Securities have been duly and validly authorized by
each of the Issuers for issuance and when executed by the Issuers and
authenticated by the Trustee in accordance with the provisions of the
Indenture, and delivered to and paid for by the Underwriters in
accordance with the terms hereof, will have been duly executed, issued
and delivered and will constitute valid and legally binding obligations
of the Issuers, entitled to the benefits of the Indenture and
enforceable against the Issuers in accordance with their terms except
that the enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally or (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
at law or in equity); each of the Issuers has all requisite corporate
power and authority to execute, deliver and perform its obligations
under the Indenture and the Securities; and the Indenture has been duly
and validly authorized by the Issuers and qualified under the Trust
Indenture Act and, when executed and delivered by the Issuers (assuming
the due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms except
that the enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally or (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
at law or in equity).
(f) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized by the
Issuers and, when executed and delivered by the Issuers, will
constitute a valid and legally binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms except (i)
that the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other
<PAGE> 7
-7-
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally or general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a
proceeding at law or in equity) and (ii) as any rights to indemnity or
contribution hereunder may be limited by federal and state securities
laws and public policy considerations.
(g) No consent, approval, authorization or order of any court
or governmental agency or body is required for the performance of this
Agreement, the Securities or the Indenture by the Issuers or to the
consummation by the Issuers of any of the transactions contemplated
hereby and thereby, or the application of the proceeds of the issuance
of the Securities as described in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), except as
may be required and have been obtained under the Act, the Trust
Indenture Act or state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Securities by the Underwriters;
and none of the Issuers is (i) in violation of its certificate of
incorporation or bylaws, (ii) in violation of any statute, judgment,
decree, order, rule or regulation applicable to it or any of its
properties or assets, which violation would, individually or in the
aggregate, have a Material Adverse Effect, or (iii) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in this Agreement, the Securities or the Indenture
or any other contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit,
certificate or agreement or instrument to which it is a party or to
which it is subject, which default would, individually or in the
aggregate, have a Material Adverse Effect.
(h) The execution, delivery and performance by the Issuers of
this Agreement, the Securities and the Indenture and the consummation
by the Issuers of the transactions contemplated hereby and thereby and
by the Prospectus and the fulfillment of the terms hereof and thereof,
will not violate, conflict with or constitute or result in a breach of
or a default under (or an event that, with notice or lapse of time, or
both, would constitute a breach of or a
<PAGE> 8
-8-
default under) any of (a) the terms or provisions of any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement, permit, certificate or agreement or
instrument to which any of the Company or the Subsidiaries is a party
or to which any of their respective properties or assets are subject,
which violation, conflict, breach or default would, individually or in
the aggregate, have a Material Adverse Effect, (b) the certificate of
incorporation or bylaws of any of the Company or the Subsidiaries or
(C) (assuming compliance with all applicable state securities or "Blue
Sky" laws) any statute, judgment, decree, order, rule or regulation of
any court or governmental agency or other body applicable to the
Company or the Subsidiaries or any of their respective properties or
assets, which violation, conflict, breach or default would,
individually or in the aggregate, have a Material Adverse Effect.
(i) The audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) present fairly the consolidated financial position, results
of operations and cash flows of such entities at the dates and for the
periods to which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis,
except as otherwise stated therein; the unaudited consolidated
financial statements and the related notes included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) present fairly the
consolidated financial position, results of operations and cash flows
of such entities at the dates and for the periods to which they relate,
subject to year end audit adjustments and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis except as otherwise stated therein and have been
prepared on a basis substantially consistent with that of the audited
financial statements referred to above except as otherwise stated
therein; the summary and selected financial and statistical data
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
present fairly the information shown therein and have been prepared and
compiled on a basis consistent with the audited and
<PAGE> 9
-9-
unaudited financial statements included therein, except as otherwise
stated therein; and Deloitte & Touche L.L.P., which has examined
certain of such financial statements and schedules as set forth in its
reports included in the Registration Statement and the Prospectus, is
an independent public accounting firm as required by the Act.
(j) The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) (A) have been
prepared in accordance with applicable requirements of Regulation S-X
promulgated under the Act and (B) have been properly computed on the
bases described therein; and the assumptions used in the preparation of
the pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(k) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there is not pending or, to the best knowledge of the
Issuers, threatened any action, suit, proceeding, inquiry or
investigation, governmental or otherwise, to which any of the Company
or the Subsidiaries is a party, or to which their respective properties
or assets are subject, before or brought by any court, arbitrator or
governmental agency or body, that, if determined adversely to the
Company or the Subsidiaries would, individually or in the aggregate,
have a Material Adverse Effect or that seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or sale
of the Securities to be sold hereunder or the application of the
proceeds therefrom or the other transactions described in the
Prospectus.
(l) None of the Company or the Subsidiaries has any liability
for any prohibited transaction or funding deficiency or any complete or
partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which any of the
<PAGE> 10
-10-
Company or the Subsidiaries makes or ever has made a contribution and
in which any employee of any of the Company or the Subsidiaries is or
has ever been a participant. With respect to such plans, the Company
and the Subsidiaries are in compliance in all material respects with
all provisions of ERISA.
(m) The Company and the Subsidiaries own or possess adequate
licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how that are necessary to conduct
their business as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(n) None of the Company or the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or
conflict were sustained, would, individually or in the aggregate, have
a Material Adverse Effect.
(o) Each of the Company and the Subsidiaries has obtained all
licenses, permits, franchises and other governmental authorizations,
the lack of which would, individually or in the aggregate, have a
Material Adverse Effect.
(p) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
and except as described therein, (i) the Company and the Subsidiaries
have not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, in either case
whether or not in the ordinary course of business, and (ii) the Company
and the Subsidiaries have not purchased any of their respective
outstanding capital stock, or declared, paid or otherwise made any
dividend or distribution of any kind on any of their respective capital
stock or otherwise.
(q) There are no legal or governmental proceedings required to
be described in the Registration Statement or
<PAGE> 11
-11-
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) that are not described as required, nor are
there any contracts or other documents required to be described in the
Registration Statement or Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or to be filed as
exhibits to the Registration Statement by the Act that have not been
described or filed as required. Except as described in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), none of the Company or the Subsidiaries is in default
under any of the contracts filed as exhibits to the Registration
Statement, has received a notice or claim of any such default or has
knowledge of any breach of any of the contracts filed as exhibits to
the Registration Statement by the other party or parties thereto,
except such defaults or breaches as would not, individually or in the
aggregate, have a Material Adverse Effect.
(r) None of the Company or the Subsidiaries has taken or will
take any action that would cause this Agreement or the issuance or sale
of the Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or
as the same may hereafter be in effect, on the Closing Date.
(s) Each of the Company and the Subsidiaries has good and
marketable title to all real property described in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) as being owned by it and good and marketable title to the
leasehold estate in the real property described therein as being leased
by it, free and clear of all liens, charges, encumbrances or
restrictions, except, in each case, as described in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) or such as would not, individually or in the aggregate,
have a Material Adverse Effect. All leases, contracts and agreements,
including those referred to in or filed as exhibits to the Registration
Statement, to which the Company or any of the Subsidiaries is a party
or by which any of them is bound are valid and enforceable against the
Company or any such Subsidiary, are, to the knowledge of the Issuers,
valid and enforceable against the other party or parties thereto and
are in full force and effect.
<PAGE> 12
-12-
(t) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
except where the failure to so file such returns would not,
individually or in the aggregate, have a Material Adverse Effect, and
have paid all taxes shown as due thereon; and other than tax
deficiencies which the Company or any Subsidiary is contesting in good
faith and for which adequate reserves have been provided, and there is
no tax deficiency that has been asserted against the Company or any
Subsidiary that would, individually or in the aggregate, have a
Material Adverse Effect.
(u) (i) Immediately after the consummation of the transactions
contemplated by the Agreement, the fair value and present fair saleable
value of the assets of the Company will exceed the sum of its stated
liabilities and identified contingent liabilities; and (ii) the Company
is not, nor will it be, after giving effect to the execution, delivery
and performance of the Agreement, and the consummation of the
transactions contemplated hereby, (a) left with unreasonably small
capital with which to carry on its business as it is proposed to be
conducted, (b) unable to pay its debts (contingent or otherwise) as
they mature or (C) insolvent.
(v) Except as disclosed in the Registration Statement or
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and except as would not individually or in the
aggregate have a Material Adverse Effect (A) each of the Company and
the Subsidiaries is in compliance with all applicable Environmental
Laws, (B) each of the Company and the Subsidiaries has made all filings
and provided all notices required under any applicable Environmental
Law, and has all permits, authorizations and approvals required under
any applicable Environmental Laws and is in compliance with their
requirements, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice or demand letter or request for information pending
or, to the best knowledge of the Issuers, threatened against the
Company or any of the Subsidiaries under any Environmental Law, (D) no
Lien has been recorded under any Environmental Law with respect to any
assets, facility or property owned, operated, leased or controlled by
the Company or any of the Subsidiaries, (E)
<PAGE> 13
-13-
neither the Company nor any of the Subsidiaries has received notice
that it has been identified as a potentially responsible party under
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA") or any comparable state law, (F) no
property or facility of the Company or any of the Subsidiaries is (i)
listed or proposed for listing on the National Priorities List under
CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to
CERCLA, or on any comparable list maintained by any state or local
governmental authority.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any federal, state,
local or municipal statute, law, rule, regulation, ordinance, code,
policy or rule of common law and any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent decree or judgment binding on any of the Issuers or the
Subsidiaries, relating to pollution or protection of the environment or
health or safety or any chemical, material or substance, that is
subject to regulation thereunder. "Environmental Claims" means any and
all administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, notices of responsibility, information
requests, liens, notices of noncompliance or violation, investigations
or proceedings relating in any way to any Environmental Law.
(w) None of the Company or the Subsidiaries is required to
register as an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(x) Except as stated in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) none of the Company or the Subsidiaries or any of such
entities' directors, officers or controlling persons, has taken,
directly or indirectly, any action designed, or that might reasonably
be expected, to cause or result, under the Act or otherwise, in, or
that has constituted, stabilization or manipulation of the price of any
security of any Issuer to facilitate the sale or resale of the
Securities (it being understood that no
<PAGE> 14
-14-
representation or warranty is made as to any actions by the
Underwriters).
3. Purchase, Sale and Delivery of the Securities. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and each of the Underwriters severally
agrees to purchase from the Company, at 97.0% of their principal amount, the
respective aggregate principal amounts of the Notes set forth opposite their
respective names on Exhibit C hereto. The obligations of the Underwriters under
this Agreement are several and not joint.
In addition, the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
Underwriters, and each of the Underwriters severally shall have the option to
purchase (the "Option"), up to an aggregate of $10,000,000 in principal amount
of Option Notes at 97.0% of their principal amount. The Option will expire
thirty days after the date hereof and may be exercised once, solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Notes. The exercise of the Option by the Underwriters will be subject to
such exercise being permitted under the Senior Credit Facility (as defined in
the Indenture). The aggregate principal amount of Option Notes to be purchased
by each Underwriter upon the exercise of the Option shall be in the same
proportion that the total principal amount of Firm Notes purchased by such
Underwriter as set forth on Exhibit C hereto bears to the total principal amount
of Firm Notes purchased by the Underwriters.
One or more certificates in definitive form for the Notes that
the Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names, as each Underwriter requests
upon notice to the Company at least 48 hours prior to the Closing Date and the
Additional Closing Date (as defined), if any, shall be delivered by or on behalf
of the Company, against payment by or on behalf of the Underwriters, of the
purchase price therefor by wire transfer of immediately available funds to the
account of the Company previously designated by it in writing. Such delivery of
and payment for the Firm Notes and the related Guarantees shall be made at the
offices of Cahill Gordon & Reindel, 80 Pine
<PAGE> 15
-15-
Street, New York, New York 10005, at 9:00 A.M., New York time, on October 15,
1996, or at such date as the Underwriters and the Company may agree upon or as
the Underwriters may determine pursuant to Section 7(i) hereof, such time and
date of delivery against payment being herein referred to as the "Closing Date."
Delivery of and payment for the Option Notes and the related Guarantees shall be
made at the above-mentioned offices of Cahill Gordon & Reindel, on such date
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from the
Underwriters to the Company of their determination to purchase an amount,
specified in said notice, of Option Notes, such time and date of delivery
against payment being herein referred to as the "Additional Closing Date." The
Company will make such certificate or certificates for the Securities available
for checking and packaging by the Underwriters at the offices in New York, New
York of CIBC Wood Gundy Securities Corp. at least 24 hours prior to the Closing
Date and the Additional Closing Date, if any.
The Issuers hereby confirm their engagement of Alex. Brown &
Sons Incorporated and Alex. Brown & Sons Incorporated hereby confirms its
engagement with the Issuers to render services as, a "qualified independent
underwriter" within the meaning of Rules 2720(b)(15)(A) through (b)(15)(G) of
the Conduct Rules of the NASD with respect to the offering and sale of the
Securities. Alex. Brown & Sons Incorporated, solely in its capacity as qualified
independent underwriter and not otherwise, is referred to herein as the
"Independent Underwriter."
4. Offering by the Underwriters. After the Registration
Statement becomes effective, the Underwriters propose to offer for sale to the
public the Securities at the price and upon the terms set forth in the
Prospectus. The Underwriters will notify the Issuers when such offer and sale
has been completed.
5. Certain Covenants. The Issuers jointly and severally
covenant and agree with the Underwriters that:
(i) Each of the Issuers will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective
promptly. If, at the time that
<PAGE> 16
-16-
the Registration Statement becomes effective, any information shall
have been omitted therefrom in reliance upon Rule 430A of the rules and
regulations of the Commission under the Act, then immediately following
the execution of this Agreement, the Issuers will prepare, and
thereafter the Issuers will file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) of the
rules and regulations of the Commission under the Act, copies of an
amended Prospectus relating to such Registration Statement, or, if
required by such Rule 430A, a post-effective amendment to such
Registration Statement (including an amended Prospectus), containing
all information so omitted. During any time when a prospectus relating
to the Securities is required to be delivered under the Act, the
Issuers will comply with all requirements imposed by the Act, the
Exchange Act and the Trust Indenture Act to the extent necessary to
permit the continuance of sales or dealings in the Securities in
accordance with the provisions hereof and of the Prospectus. The
Issuers will give each Underwriter notice of their intention to file
any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the
Prospectus (including any revised prospectus that the Issuers propose
for use by the Underwriters in connection with the offering of the
Securities that differs from any prospectus on file at the Commission
at the time the Registration Statement including such prospectus
becomes effective, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act), will furnish the Underwriters with copies of
any such amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any
such amendment or supplement or use any such prospectus to which the
Underwriters or counsel for the Underwriters shall reasonably object or
which is not in compliance with the Act. The Issuers will advise the
Underwriters, promptly after they receive notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed
or declared effective or the Prospectus or any amendment or supplement
thereto has been filed.
(ii) The Issuers will advise the Underwriters, promptly after
receiving notice or obtaining knowledge
<PAGE> 17
-17-
thereof, of (a) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or any amendment or
supplement thereto, (b) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (C) the
institution, threatening or contemplation of any proceeding for any
such purpose or (d) any request made by the Commission for amending the
Registration Statement, for amending or supplementing the Prospectus or
for additional information. Each of the Issuers will use its best
efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iii) The Issuers will cooperate with the Underwriters in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Underwriters may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of
the Securities by the Underwriters; provided, however, that in
connection therewith none of the Issuers shall be required to qualify
as a foreign corporation or to execute a general consent to service of
process in any jurisdiction or to take any other action that would
subject it to general service of process or to taxation in respect of
doing business in any jurisdiction in which it is not otherwise
subject.
(iv) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make such Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with
the Act and the Exchange Act, the Issuers shall (subject to Section
5(i)) forthwith amend or supplement such Prospectus so that, as so
amended or supplemented, such Prospectus will not include 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 existing at the time it is delivered to a purchaser, not
misleading and will comply in all material
<PAGE> 18
-18-
respects with the Act and the Exchange Act, and the Issuers will
furnish to the Underwriters, without charge, a reasonable number of
copies of such amendment or supplement.
(v) The Issuers will, without charge, provide (a) to each
Underwriter and to counsel for the Underwriters a signed copy of each
registration statement originally filed with respect to the Securities
and each amendment thereto (in each case including exhibits thereto)
and (b) so long as a prospectus relating to the Securities is required
to be delivered under the Act, as many copies of each Preliminary
Prospectus or Prospectus or any amendment or supplement thereto as the
Underwriters may reasonably request.
(vi) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, a consolidated earning statement
(in form complying with the provisions of Rule 158 of the rules and
regulations of the Commission under the Act ("Rule 158")) covering a
twelve-month period beginning not later than the first day of the
fiscal quarter of the Company next following the "effective date" (as
defined in Rule 158) of the Registration Statement, which consolidated
earning statement shall satisfy the provisions of Section 11(a) of the
Act.
(vii) During the period of five years hereafter, the Company
will furnish to the Underwriters (a) as soon as available, a copy of
each report or other communication (financial or otherwise) of the
Company mailed to the Trustee or holders of the Notes, stockholders or
filed with the Commission, and (b) from time to time such other
information concerning the Company as you may reasonably request.
(viii) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (other
than by reason of a default or omission by any of the Underwriters of
their obligations hereunder) or if this Agreement shall be terminated
by the Underwriters because of any failure or refusal on the part of
the Issuers to comply with the terms or fulfill any of the conditions
of this Agreement, the Company agrees to reimburse you for all
reasonable out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) incurred by you in
<PAGE> 19
-19-
connection herewith, but in no event will the Company be liable to any
of the Underwriters for damages on account of loss of anticipated
profits from the sale of the Securities.
(ix) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(x) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to
the Company, a copy of any unaudited interim consolidated financial
statements of the Company and the Subsidiaries, for any period
subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
6. Expenses. Notwithstanding any termination of this Agreement
(pursuant to Section 10 or otherwise), the Issuers jointly and severally agree
to pay the following costs and expenses and all other costs and expenses
incident to the performance by the Issuers of their obligations hereunder: (i)
the preparation, printing or reproduction, and filing with the Commission of the
registration statement (including financial statements and exhibits thereto),
each Preliminary Prospectus, the Prospectus and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the registration statement, each Preliminary Prospectus, the
Prospectus and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the offering and sale of the Securities;
(iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp taxes in connection with
the original issuance and sale of the Notes and trustees' fees; (iv) the
reproduction and delivery of this Agreement, the preliminary and supplemental
"Blue Sky" memoranda and all other agreements or documents reproduced and
delivered in connection with the offering of the Securities; (v) the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states (including filing fees and the
fees, expenses and disbursements of Cahill Gordon & Reindel, counsel to the
Underwriters, relating to such registration and qualification); (vi) the filing
fees in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.
<PAGE> 20
-20-
(the "NASD") (including the fees and disbursements of Cahill Gordon & Reindel,
counsel to the Underwriters, in respect thereof and in connection with obtaining
an opinion of the NASD concerning the fairness of the terms and arrangements of
the underwriting of the Securities); (vii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (viii) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Issuers; (ix) fees and expenses of
the Trustee including fees and expenses of its counsel; and (x) any fees charged
by investment rating agencies for the rating of the Securities.
7. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Securities are
subject to the accuracy of the representations and warranties contained herein,
to the performance by the Issuers of their respective covenants and agreements
hereunder and to the following additional conditions unless waived in writing by
the Underwriters:
(i) If the registration statement originally filed with
respect to any of the Securities, or any amendment thereto filed prior
to the Closing Date has not been declared effective as of the time of
execution hereof, such registration statement or such amendment shall
have been declared effective not later than 12:00 noon, New York City
time, on the date (which shall not be later than the second business
day after the date of execution hereof) on which the amendment to such
registration statement originally filed with respect to such
Securities, or to the Registration Statement, as the case may be,
containing information regarding the initial public offering price of
such Securities has been filed with the Commission, or such later time
and date as shall have been consented to by the Underwriters; if
required, the Prospectus and any amendment or supplement thereto shall
have been filed in accordance with Rule 424(b) under the Act; no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto or the qualification of the Indenture under the Trust
Indenture Act shall have been issued and no proceedings for that
purpose shall have been instituted or to the knowledge of the Issuers
or the Underwriters, shall be threatened or contemplated by the
Commission; and the
<PAGE> 21
-21-
Issuers shall have complied with or satisfactorily responded to any
request of the Commission for additional information.
(ii) The Underwriters shall have received an opinion of
counsel to the Issuers in form and substance satisfactory to the
Underwriters and counsel to the Underwriters, dated the Closing Date
and the Additional Closing Date, if any, of Powell, Goldstein, Frazer &
Murphy, substantially in the form of Exhibit D hereto. In rendering
such opinion, Powell, Goldstein, Frazer & Murphy shall have received
and may rely upon such certificates and other documents and
information, including one or more opinions of local counsel reasonably
acceptable to the Underwriters and Cahill Gordon & Reindel, counsel to
the Underwriters, as they may reasonably request to pass upon such
matters.
(iii) The Underwriters shall have received an opinion, dated
the Closing Date, of Cahill Gordon & Reindel, counsel to the
Underwriters, with respect to the sufficiency of certain legal matters
relating to this Agreement and such other related matters as the
Underwriters may require. In rendering such opinion, Cahill Gordon &
Reindel shall have received and may rely upon such certificates and
other documents and information as they may reasonably request to pass
upon such matters. In addition, in rendering their opinion, Cahill
Gordon & Reindel may state that its opinion is limited to matters of
New York, Delaware corporate and federal law.
(iv) The Underwriters shall have received from Deloitte &
Touche L.L.P., independent public accountants for the Issuers,
"comfort" letters dated the date hereof and the Closing Date and the
Additional Closing Date, if any, in form and substance reasonably
satisfactory to the Underwriters and Cahill Gordon & Reindel, counsel
to the Underwriters.
(v) The representations and warranties of the Issuers
contained in this Agreement shall be true and correct on and as of the
Closing Date and the Additional Closing Date, if any; the Issuers shall
have complied in all material respects with all agreements and
satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date and the Additional Closing
Date, if any.
<PAGE> 22
-22-
(vi) There shall not have been any change in the capital stock
of the Issuers nor any material increase in the consolidated short-term
or long-term debt of the Issuers from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or
supplement thereto) and (b) the Issuers shall not have any liabilities
or obligations, contingent or otherwise (whether or not in the ordinary
course of business), that are material to the Issuers, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto).
(vii) None of the issuance and sale of the Securities pursuant
to this Agreement or the Prospectus shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order shall
have been issued; and there shall not have been any legal action,
order, decree or other administrative proceeding instituted or
threatened against any of the Issuers or against you relating to the
issuance of the Securities or the Underwriters' activities in
connection therewith or any other transactions contemplated by this
Agreement or the Prospectus.
(viii) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition
(financial or other), business, properties, prospects or results of
operations of the Company and the Subsidiaries, taken as a whole, not
contemplated by the Prospectus that, in your opinion, would materially
adversely affect the market for the Securities, or (ii) any event or
development relating to or involving any of the Company or the
Subsidiaries or any of the officers or directors of the Company or the
Subsidiaries that makes any statement made in the Prospectus untrue or
that, in the opinion of the Issuers and their counsel or the
Underwriters and their counsel, requires the making of any addition to
or change in the Prospectus in order to state a material fact required
by the Act or any other law to be stated therein or necessary in order
to make the statements made therein not misleading.
<PAGE> 23
-23-
(ix) The Underwriters shall have received certificates, dated
the Closing Date and the Additional Closing Date, if any, and signed by
the chief executive officer and the chief financial officer of the
Company and each Subsidiary Guarantor (or such other officers as are
acceptable to the Underwriters), to the effect that:
a. All of the representations and warranties of the
Issuers set forth in this Agreement are true and
correct as if made on and as of the Closing Date
and the Issuers have complied in all material
respects with all agreements and satisfied all
conditions on their part to be performed or
satisfied at or prior to the Closing Date or the
Additional Closing Date, as applicable.
b. No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or
the qualification of the Indenture under the Trust
Indenture Act has been issued, and no proceedings
for those purposes have been instituted or, to the
best of the Issuer's knowledge, are threatened or
contemplated by the Commission.
c. None of the issuance and sale of the Securities
pursuant to this Agreement or the Prospectus have
been enjoined (temporarily or permanently) and no
restraining order or other injunctive order has
been issued and there has not been any legal
action, order, decree or other administrative
proceeding instituted or threatened against any of
the Issuers relating to the issuance of the
Securities or the Underwriters' activities in
connection therewith or in connection with any
other transactions contemplated by this Agreement
or the Prospectus.
d. Subsequent to the effective date of this
Agreement, there has not occurred (i) any change,
or any development involving a prospective change,
in or affecting the condition (financial or
other), business, properties, prospects or results
of operations of the Company and the Subsidiaries,
taken as a whole, not contemplated by the
<PAGE> 24
-24-
Prospectus that would materially adversely affect
the market for the Securities, or (ii) any event
or development relating to or involving any of the
Company or the Subsidiaries or any of the
respective officers or directors of the Company or
the Subsidiaries that makes any statement made in
the Prospectus untrue or that requires the making
of any addition to or change in the Prospectus in
order to state a material fact required by the Act
or any other law to be stated therein or necessary
in order to make the statements made therein not
misleading.
e. There has not been any change in the capital stock
of the Company or the Subsidiaries nor any
material increase in the consolidated short-term
or long-term debt of the Company from that set
forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or
supplement thereto) and (b) the Company and the
Subsidiaries have no liabilities or obligations,
contingent or otherwise (whether or not in the
ordinary course of business), that are material to
the Company and the Subsidiaries, taken as a
whole, other than those reflected in the
Registration Statement or the Prospectus (or any
amendment or supplement thereto).
(x) The Issuers shall have furnished or caused to be furnished
to you such further certificates and documents as the Underwriters
shall have reasonably requested.
Any certificate or document signed by any officer of an Issuer
and delivered to the Underwriters or to counsel for the Underwriters, shall be
deemed a representation and warranty by such Issuer, to each Underwriter as to
the statements made therein.
All such opinions, certificates, letters, schedules, documents
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Underwriters and counsel to the Underwriters. The Issuers shall
furnish to the Underwriters such conformed copies of such opinions,
certificates, letters, schedules, documents and
<PAGE> 25
-25-
instruments in such quantities as the Underwriters shall reasonably request.
8. Indemnification and Contribution. (a) Each Issuer jointly
and severally agrees to indemnify and hold harmless each Underwriter, and each
person, if any, who controls either of the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which such Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the registration statement originally
filed with respect to the Securities or any amendment thereto or any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by any Issuer or based upon written
information furnished by or on behalf of any Issuer filed in any
jurisdiction in order to qualify the Securities under the securities or
"Blue Sky" laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"); or
(ii) the omission or alleged omission to state, in the
registration statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will
reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that none of the Issuers will be liable in any such
case to an Underwriter or any controlling person of such Underwriter to
the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission
<PAGE> 26
-26-
made in any registration statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application in reliance upon and in conformity with
written information furnished to the Issuers by or on behalf of such
Underwriter specifically for use therein; and provided, further, that
none of the Issuers will be liable to an Underwriter or any person
controlling such Underwriter with respect to any such untrue statement
or omission made in any Preliminary Prospectus that is corrected in the
Prospectus (or any amendment or supplement thereto) if the person
asserting any such loss, claim, damage or liability purchased
Securities from such Underwriter in reliance upon the Preliminary
Prospectus but was not sent or given a copy of the Prospectus (as
amended or supplemented) that was made available by the Issuers to such
Underwriter at or prior to the written confirmation of the sale of the
Securities to such person in any case where such delivery of such
Prospectus (as so amended or supplemented) is required by the Act,
unless such failure to deliver such Prospectus (as amended or
supplemented) was a result of noncompliance by the Issuers with Section
5(v)(b) of this Agreement. This indemnity agreement will be in addition
to any liability that the Issuers may otherwise have to the indemnified
parties. None of the Issuers will, without the prior written consent of
the Underwriters, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification by the Underwriters may be sought
hereunder (whether or not the Underwriters or any person who controls
either of the Underwriters within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Underwriters and each such
controlling person from all liability arising out of such claim,
action, suit or proceeding.
(b) Each Issuer also jointly and severally agrees to indemnify
and hold harmless the Independent Underwriter and each person, if any, who
controls the Independent Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities incurred as a result of the Independent Underwriter's participation
as a "qualified independent underwriter" within the
<PAGE> 27
-27-
meaning of Rules 2720(b)(15)(A) through (b)(15)(G) of the Conduct Rules of the
NASD in connection with the offering of the Securities, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Independent Underwriter for any legal or
other expenses reasonably incurred by the Independent Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred. The obligations of the Issuers under this
Section shall be in addition to any liability which the Issuer may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Independent Underwriter within the meaning of the Act.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the Issuers, their respective directors, officers who signed
the Registration Statement and each person, if any, who controls any of the
Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which any of
the Issuers or any such director, officer or controlling person may become
subject under the Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or any Application, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement was made in reliance upon and
in conformity with written information furnished to any of the Issuers by or on
behalf of such Underwriter specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by any of the Issuers
or any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. This indemnity agreement
<PAGE> 28
-28-
will be in addition to any liability that the Underwriters may otherwise have to
the indemnified parties. The Underwriters will not, without the prior written
consent of the Issuers, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification by any of the Issuers may be sought hereunder
(whether or not any of the Issuers or any person who controls the Issuers within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of any such Issuer and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or otherwise with the consent of the Issuers.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party except to the extent
that such omission results in the forfeiture by the indemnifying party of
substantial rights and defenses. In case any such action is brought against any
indemnified party, and such indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the named
parties in any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties that are different from or additional to
those available to any such indemnifying party, then the indemnifying parties
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
<PAGE> 29
-29-
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable and documented
out-of-pocket costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof, unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to the
immediately preceding sentence (it being understood, however, that in connection
with such action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction arising
out of the same general allegations or circumstances, designated by the
Underwriters in the case of paragraph (b) of this Section 8 or the Issuers in
the case of paragraph (C) of this Section 8, representing the indemnified
parties under such paragraph (a) or paragraph (c), as the case may be, who are
parties to such action or actions); (ii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of
the indemnifying parties; or (iii) the indemnifying party shall have failed to
assume the defense or retain counsel reasonably satisfactory to the indemnified
party. If indemnity is sought pursuant to paragraph (b) of this Section 8, then
in addition to such counsel for the indemnified parties, the indemnifying party
shall be liable for the reasonable fees and expenses of not more than one
separate counsel (in addition to any necessary local counsel) for the
Independent Underwriter in its capacity as a "qualified independent underwriter"
and all persons, if any, who control the Independent Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act if, in the
reasonable judgment of the Independent Underwriter, there may exist a conflict
of interest between the Independent Underwriter and the other indemnified
parties. In the case of any such separate counsel for the Independent
Underwriter and such control persons of the Independent Underwriter, such
counsel, which shall be reasonably acceptable to the Issuers, shall be
designated in writing by the Independent Underwriter. After such notice from the
indemnifying parties to such indemnified party (so long as the indemnified party
shall have informed the indemnifying parties of such action in accordance with
this Section 8 on a timely basis prior to the indemnified party seeking
indemnification hereunder), the indemnifying parties will not be liable under
this Section 8 for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party, unless such
<PAGE> 30
-30-
indemnified party waived its rights under this Section 8, in which case the
indemnified party may effect such a settlement without such consent.
(e) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, 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 (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering of the Securities (before deducting expenses)
received by the Issuers bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault of the parties 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 Issuers on the one hand,
or the Underwriters on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Issuers and the Underwriters agree that the Independent
Underwriter will not receive any additional benefits hereunder for serving as
the Independent Underwriter in connection with the offering and sale of the
Securities. The Issuers and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Issuers on the one hand and the Underwriters on
the other hand were treated as one entity for such purpose) or by any other
method of allocation that does not
<PAGE> 31
-31-
take into account the equitable considerations referred to in the first sentence
of this paragraph (e). Notwithstanding any other provision of this paragraph
(e), the Underwriters shall not be obligated to make contributions hereunder
that in the aggregate exceed the total underwriting discounts and commissions
received by the Underwriters under this Agreement, less the aggregate amount of
any damages that the Underwriters have otherwise been required to pay by reason
of the untrue or alleged untrue statements, and 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. For purposes of this paragraph (e), each person, if any, who
controls any of the Underwriters within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Underwriters, and each director of any of the Issuers, each officer of any of
the Issuers who signed the Registration Statement and each person, if any, who
controls any of the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Issuers.
9. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Issuers, their respective officers and the Underwriters 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 (i) any
investigation made by or on behalf of the Issuers, any of their respective
officers or directors, the Underwriters or any controlling person referred to in
Section 8 hereof and (ii) delivery of and payment for the Securities, and shall
be binding upon and shall inure to the benefit of, any successors, assigns,
heirs, personal representatives of the Issuers, the Underwriters and indemnified
parties referred to in Section 8 hereof. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
10. Termination. (a) This Agreement may be terminated in the sole discretion of
the Underwriters by notice to the Issuers given in the event that the Issuers
shall have failed, refused or been unable to satisfy all conditions on its
respective part to be performed or satisfied hereunder on or prior to the
Closing Date or, if at or prior to the Closing Date:
<PAGE> 32
-32-
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to their respective
businesses or properties from fire, flood, hurricane, earthquake,
accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, which
loss or interference has had or has a material adverse effect on the
business, condition (financial or other), properties, prospects or
results of operations of the Company and the Subsidiaries, taken as a
whole, or there shall have been any material adverse change, or any
development involving a prospective material adverse change (including
without limitation a change in management or control of the Issuers),
in the business, condition (financial or other), properties, prospects
or results of operations of the Company and the Subsidiaries, taken as
a whole, except as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange;
(iii) a banking moratorium shall have been declared by
New York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any material change in the financial
markets of the United States that, in the sole judgment of the
Underwriters, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof; or
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
<PAGE> 33
-33-
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided in
Section 9 hereof.
11. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters, shall be mailed, delivered or telecopied and
confirmed in writing to the Underwriters c/o CIBC Wood Gundy Securities Corp.,
425 Lexington Avenue, 3rd Floor, New York, New York 10017, Attention: Kevin P.
Magid, and with a copy to Cahill Gordon & Reindel, 80 Pine Street, New York, New
York 10005, Attention: Roger Meltzer, Esq. If sent to any of the Issuers, shall
be mailed, delivered or telecopied and confirmed in writing, to c/o Outdoor
Systems, Inc., 2502 North Black Canyon Highway, Phoenix, Arizona 85009,
Attention: Chief Executive Officer, and with a copy to Powell, Goldstein, Frazer
& Murphy, 191 Peachtree Street NE, 16th Floor, Atlanta, Georgia 30303,
Attention: William B. Shearer, Esq.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and each of the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control the Underwriters
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Issuers, their
respective officers who have signed the Registration Statement and any person or
persons who controls any Issuer within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Securities from the Underwriters
will be deemed a successor because of such purchase.
13. Joint and Several Obligations. All of the obligations of
the Issuers hereunder shall be joint and several obligations of each of them.
<PAGE> 34
-34-
14. Information Supplied by the Underwriters. The statements
set forth in the last paragraph on the front cover page of the Prospectus and in
the third paragraph, the third sentence of the fourth paragraph, the fifth
paragraph and the second sentence of the seventh paragraph, in each case under
the heading "Underwriting" in the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by the
Underwriters to the Issuers for purposes of Sections 2(b) and 8 hereof.
15. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof.
16. Default of Underwriters. If any Underwriter defaults in
its obligations to purchase Securities hereunder and arrangements satisfactory
to the non-defaulting Underwriter and the Company for the purchase of such
Securities by other persons are not made within 36 hours after such default,
this Agreement may be terminated by the Company or the non-defaulting
Underwriter without liability on the part of the non-defaulting Underwriter or
the Company, except as provided in Sections 6 and 8. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section . Nothing herein will relieve a defaulting Underwriter from
liability for its default.
17. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
18. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
<PAGE> 35
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among the
Issuers and the Underwriters.
Very truly yours,
OUTDOOR SYSTEMS, INC.
By:
------------------------------
Name:
Title:
OUTDOOR SYSTEMS PAINTING, INC.
By:
------------------------------
Name:
Title:
OS ADVERTISING OF TEXAS PAINTING,
INC.
By:
------------------------------
Name:
Title:
OS BASELINE, INC.
By:
------------------------------
Name:
Title:
DECADE COMMUNICATIONS GROUP, INC.
By:
------------------------------
Name:
Title:
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
By:
------------------------------
<PAGE> 36
Name:
Title:
NEW YORK SUBWAYS ADVERTISING CO.,
INC.
By:
______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CIBC WOOD GUNDY SECURITIES CORP.
By: _________________________________
Name:
Title:
ALEX. BROWN & SONS INCORPORATED
By: _________________________________
Name:
Title:
<PAGE> 37
Exhibit A
Subsidiary Guarantors
Outdoor Systems Painting, Inc.
OS Advertising of Texas Painting, Inc.
OS Baseline, Inc.
Decade Communications Group, Inc.
Bench Advertising Company of Colorado, Inc.
New York Subways Advertising Co., Inc.
<PAGE> 38
Exhibit B
Subsidiaries
Outdoor Systems Painting, Inc.
OS Advertising of Texas Painting, Inc.
OS Baseline, Inc.
Decade Communications Group, Inc.
Bench Advertising Company of Colorado, Inc.
New York Subways Advertising Co., Inc.
Mediacom Inc.
<PAGE> 39
Exhibit C
<TABLE>
<CAPTION>
Principal Amount
Underwriter of Notes
- ----------- ----------------
<S> <C>
CIBC Wood Gundy Securities Corp. $192,000,000
Alex. Brown & Sons Incorporated 48,000,000
------------
Total $240,000,000
============
</TABLE>
<PAGE> 40
Exhibit D
Form of Opinion of Powell, Goldstein, Frazer & Murphy
Opinion, dated the Closing Date and addressed to the
Underwriters, of Powell, Goldstein, Frazer & Murphy, counsel to the Issuers, to
the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own, and hold under lease, its
properties and conduct its business as described in the Prospectus. Each of the
Subsidiary Guarantors has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority to own, and hold under lease,
its properties and conduct its business as described in the Prospectus.
(ii) Each of the Company and the Subsidiary Guarantors is duly
qualified to transact business as a foreign corporation and is in good standing
under the laws of each of the jurisdictions in which the conduct of its business
requires such qualification, except to the extent that the failure to qualify
would not, in the aggregate, reasonably be expected to have a material adverse
effect on the business or financial condition of the Company and its
Subsidiaries, taken as a whole (a "Material Adverse Effect").
(iii) The outstanding shares of capital stock of each of the
Subsidiary Guarantors have been duly authorized and validly issued and are fully
paid and non-assessable, except that we express no opinion with respect to the
shares of Decade Communications Group, Inc. and Bench Advertising Company of
Colorado, Inc. To the best of our knowledge the shares of capital stock of each
of the Subsidiary Guarantors are owned by the Company or one of the other
Subsidiary Guarantors free and clear of all liens, encumbrances and security
interests (other than any liens granted by the Company in connection with the
Senior Credit Facility), and no options, warrants or other rights to purchase,
agreements or other obligations to issue, or other rights to convert any
obligations into, shares of capital stock of or ownership interests in any of
the Subsidiary Guarantors are outstanding.
<PAGE> 41
-2-
(iv) The Securities have been duly and validly authorized by
each of the Issuers and when executed by the Issuers and authenticated by the
Trustee in accordance with the provisions of the Indenture, and delivered to and
paid for by the Underwriters in accordance with the terms of the Underwriting
Agreement, will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the Issuers, entitled to the
benefits of the Indenture and enforceable against the Issuers in accordance with
their terms, except that the enforcement thereof may be subject to (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and (b) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether
enforceability is considered in a proceeding at law or in equity). The foregoing
opinion as to enforceability is further qualified in that certain remedies,
waivers, and other provisions of the Securities may not be enforceable;
nevertheless such unenforceability will not render the Securities invalid as a
whole or preclude the judicial enforcement of the obligations of the Issuers to
pay the principal of and interest on the Notes as provided in the Securities.
(v) Each of the Issuers has the requisite corporate power and
corporate authority to execute, deliver and perform its obligations under the
Indenture and the Securities; the Indenture has been duly and validly authorized
by the Issuers and qualified under the Trust Indenture Act and, when executed
and delivered by the Issuers (assuming the due authorization, execution and
delivery by the Trustee), will constitute a valid and legally binding agreement
of the Issuers, enforceable against the Issuers in accordance with its terms,
except that the enforcement thereof may be subject to (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and (b)
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether enforceability is
considered in a proceeding at law or in equity). The foregoing opinion as to
enforceability is further qualified in that certain remedies, waivers, and other
provisions of the Indenture may not be enforceable; nevertheless such
unenforceability will not render the Indenture invalid as a whole or preclude
the judicial enforcement of the obligations of the Issuers to pay the
<PAGE> 42
-3-
principal of and interest on the Notes as provided in the Indenture.
(vi) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the Underwriting
Agreement. The Underwriting Agreement has been duly and validly authorized by
the Issuers and, when executed and delivered by the Issuers, will constitute a
valid and legally binding agreement of the Issuers, enforceable against the
Issuers in accordance with its terms except (I) that the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally or general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding at law or in equity) and (ii) as any
rights to indemnity or contribution hereunder may be limited by federal and
state securities laws and public policy considerations.
(vii) No consent, approval, authorization or order of any
governmental agency or body is required for the performance of any of the
Underwriting Agreement, the Securities or the Indenture or any of the agreements
contemplated thereby or delivered in connection therewith, or the consummation
of the transactions contemplated thereby, except as described in the Prospectus
and such as may be required under the Act, the Trust Indenture Act or state
securities or "Blue Sky" laws in connection with the purchase and distribution
of the Securities. We note in that regard, however, that certain third-party
approvals and consents to the transfer to the Company or the Subsidiary
Guarantors of certain assets included in the Acquisition, or of ownership or
control over a contracting party with regard to various contractual obligations,
licenses, permits and easements of Gannett Outdoor, have not been obtained, and
we express no opinion with respect thereto, or of any consequences of not having
such approvals or consents.
(viii) To our knowledge, none of the Company or the Subsidiaries
is (a) in violation of its certificate of incorporation or bylaws, (b) in
violation of any statute, judgment, decree, order, rule or regulation applicable
to any of its properties or assets, which violation would, individually or in
the aggregate, have a Material Adverse Effect or in breach of or in default
under any of the Underwriting Agreement, the
<PAGE> 43
-4-
Securities or the Indenture or any other contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
certificate or agreement or instrument identified to us as being material to the
Company and its Subsidiaries in a certificate of the Chairman of the Board of
Directors of the Company to which it is a party or to which it is subject, which
breach or default would individually or in the aggregate, have a Material
Adverse Effect. We note in that regard, however, that certain third-party
approvals and consents to the transfer to the Company or the Subsidiary
Guarantors of certain assets included in the Acquisition, or of ownership or
control over a contracting party with regard to various contractual obligations,
licenses, permits and easements of Gannett Outdoor, have not been obtained, and
we express no opinion with respect thereto, or of any consequences of not having
such approvals or consents.
(ix) The execution, delivery and performance by the Issuers of
the Underwriting Agreement, the Securities or the Indenture and the consummation
by the Issuers of the transactions contemplated thereby and the fulfillment of
the terms thereof, will not violate, conflict with or constitute or result in a
breach of or a default under (or an event that with notice or lapse of time, or
both, would constitute a breach of or a default under) any of the terms or
provisions of (a) the certificate of incorporation or bylaws of the Company or
the Subsidiaries (b) any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement or agreement or instrument
identified to us as being material to the Company and its Subsidiaries in a
certificate of the Chairman of the Board of Directors of the Company to which
any of the Company or the Subsidiaries is a party or to which any of their
respective properties or assets are subject or (assuming compliance with all
applicable state securities and "Blue Sky" laws) any statute, judgment, decree,
order, rule or regulation of any court or governmental agency or body applicable
to any of the Company or the Subsidiaries or any of their respective properties
or assets, which violation, conflict, breach or default would, individually or
in the aggregate, have any Material Adverse Effect. With respect to the opinion
expressed in clause (b) of this paragraph concerning the Senior Credit Facility,
we have relied, with your permission, solely upon a certificate of the Chairman
of the Board of Directors of the Company, a copy of which is attached hereto, as
to whether the material terms of the Notes and the Indenture are any more
restrictive on the Company or less
<PAGE> 44
-5-
favorable to the Company or the Lenders (as defined in the Senior Credit
Facility) than those set forth in the Senior Subordinated Indenture (as defined
in the Senior Credit Facility).
(x) Except as described in the Prospectus and Registration
Statement, we know of no legal or governmental proceedings pending or threatened
to which any of the Company or the Subsidiaries is a party or to which the
respective properties or assets of the Company or the Subsidiaries are subject
that are required to be described in the Registration Statement or the
Prospectus and are not described therein, or that seek to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or sale of the
Securities to the Underwriters or the consummation of the other transactions
described in the Prospectus; and we know of no legal or governmental proceedings
and no contract, agreement or other document that is required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as required.
(xi) Each document (other than the financial statements,
schedules and other financial and statistical information included therein)
filed pursuant to the Act or incorporated by reference in the Registration
Statement and Prospectus and filed pursuant to the Exchange Act complied when so
filed as to form in all material respects with the Act and the Exchange Act.
(xii) The statements set forth under the captions
"Business--Government Regulation," "Description of Senior Credit Facility" and
"Description of the Notes" in the Prospectus and the Registration Statement,
insofar as such statements purport to summarize legal documents are fair
summaries of the documents so summarized and insofar as such statements are
summaries of matters of law or legal conclusions are accurate summaries in all
material respects and the Indenture and the Securities conform in all material
respects to the description thereof under "Description of the Notes" in the
Prospectus and the Registration Statement.
(xiii) None of the Company or the Subsidiaries is required to
register as an "investment company" or a company "controlled by" an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended.
<PAGE> 45
-6-
(xiv) The sale, issuance, execution or delivery of the
Securities will not violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
(xv) (a) The Registration Statement, as of its effective date,
and the Prospectus, as of its date, comply as to form in all material respects
with the requirements of the Act, except that in each case we express no opinion
as to the financial statements, schedules and other financial and statistical
data included therein, or the Statement of Eligibility and Qualification of the
Trustee on Form T-1, and (b) the Indenture complies as to form in all material
respects with the requirements of the Trust Indenture Act.
(xvi) The Registration Statement and all post-effective
amendments, if any, have been declared effective under the Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in a manner and
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened, by the
Commission.
In addition, in our capacity as counsel to the Company, we
have participated in conferences with officers and other representatives of the
Issuers, representatives of the independent public accountants and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or Prospectus
or the documents incorporated by reference therein (except as indicated in
clause (x) above) and have not made any independent check or verification
thereof, on the basis of the foregoing (relying as to materiality to a large
extent upon the statements of officers and other representatives of the Issuers)
no facts have come to our attention that have caused us to believe that either
the Registration Statement at the time it became effective, or any
post-effective amendment thereto as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its
<PAGE> 46
-7-
respective date and as of the Closing Date, or any amendment or supplement
thereto as of its respective date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits 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 (it being
understood that we express no opinion on the financial statements or other
financial and statistical data or information included or incorporated by
reference in the Registration Statement or Prospectus or the Statement of
Eligibility and Qualification of the Trustee on Form T-1).
