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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
NOVEMBER 1, 1996
LAMAR ADVERTISING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 0-20833 72-1205791
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
5551 CORPORATE BOULEVARD, BATON ROUGE, LOUISIANA 70808
(Address of principal executive offices and zip code)
(504) 926-1000
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
------------------------------------
On November 1, 1996, Lamar Advertising Company (the "Company") acquired all
of the outstanding capital stock of FKM Advertising Co., Inc. ("FKM") for a cash
purchase price of $40.0 million. Pursuant to this acquisition, the Company has
acquired a total of 122 bulletins and 537 posters in Youngstown, Ohio and 553
bulletins located across the state of Pennsylvania on interstate highways and
other primary roads.
Funds for the acquisition were provided from borrowings under the Company's
revolving credit facility with a group of banks led by The Chase Manhattan Bank.
The nature and amount of the consideration paid in the acquisition were
determined by negotiation between the Company and FKM following a bidding
process in which FKM solicited proposals for the acquisition of the company.
There was no material relationship between FKM or its shareholders and the
Company or any of its affiliates, directors or officers, or any associate of any
director or officer of the Company.
ITEM 5. OTHER EVENTS.
------------
On November 7, 1996, the Company announced that, in connection with its
tender offer for (the "Tender Offer"), and its consent solicitation with respect
to, all of its $100 million outstanding 11% Senior Secured Notes due May 15,
2003 (the "Notes"), holders representing over a majority in principal amount of
the Notes had validly tendered their Notes and delivered their consents to
certain amendments to the indenture (the "Indenture") under which the Notes were
issued. The Indenture, as amended and restated on November 8, 1996, is filed as
Exhibit 4.1 to this report. Although such amended and restated Indenture has
been executed, it will not become operative until the Tender Offer is
consummated in accordance with its terms. The Tender Offer will expire on
November 25, 1996, unless extended, at which time the Company expects to
purchase all of the Notes validly tendered. The Company hereby incorporates by
reference the contents of its press releases dated November 7, 1996 and
November 13, 1996, filed as Exhibits 99.1 and 99.3, respectively, to this
report.
On November 11, 1996, the Company announced that it (i) has been selected
to operate the logo sign franchise for the state of Florida, (ii) has been
selected to provide tourist-oriented directional signs for the province of
Ontario, Canada, (iii) has signed purchase agreements to acquire the logo sign
franchises for the states of Kentucky and Nevada, which is subject to customary
closing conditions, including required regulatory approvals and (iv) has
acquired for $1.1 million in cash approximately 450 transit advertising displays
in Georgia and South Carolina. The Company hereby incorporates by reference the
contents of its press release dated November 11, 1996 filed as Exhibit 99.2 to
this report.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS.
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(a) Financial Statements.
Historical financial statements (and related notes) of FKM Advertising
Co., Inc. as of December 31, 1994 and 1995 and September 30, 1996
(unaudited) and for the years ended December 31, 1994 and 1995 and the nine
months ended September 30, 1996 (unaudited). Previously filed at pages F-19
through F-32 to the Company's Registration Statement on Form S-3 (File No.
333-14677) and incorporated herein by reference.
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(b) PRO FORMA Financial Statements.
An unaudited PRO FORMA balance sheet (and related notes) as of July
31, 1996 and unaudited PRO FORMA statements of earnings (loss) (and related
notes) for the year ended October 31, 1995, the nine months ended July 31,
1996 and the twelve months ended July 31, 1996, giving effect to (i) the
acquisition by the Company of FKM Advertising Co., Inc., (ii) the probable
acquisition by the Company of Outdoor East, L.P., (iii) the consummation of
the Company's initial public equity offering and the application of the net
proceeds therefrom, (iv) the execution of a proposed new revolving credit
facility with a commercial bank, (v) the consummation of the Company's
pending common stock and senior subordinated note offerings and the
application of the estimated net proceeds therefrom and (vi) the
consummation of the tender offer for the Company's outstanding senior
secured notes. Previously filed at pages 23 through 32 to the Company's
Registration Statement on Form S-3 (File No. 333-14677) and incorporated
herein by reference.
(c) Exhibits.
2.1 Stock Purchase Agreement dated as of September 25, 1996 between the
Company and the shareholders of FKM Advertising Co., Inc. Previously
filed as Exhibit 10.17 to the Company's Registration Statement on Form
S-3 (File No. 333-14677) and incorporated herein by reference.
4.1 Form of Second Supplemental Indenture in the form of an Amended and
Restated Indenture dated November 8, 1996 relating to the Company's
11% Senior Secured Notes due May 15, 2003. Filed herewith.
4.2 Notice of Trustee dated November 8, 1996 with respect to the release
of the security interest in the Trustee on behalf of the holders of
the Company's 11% Senior Secured Notes due May 15, 2003. Filed
herewith.
99.1 Press Release dated November 7, 1996. Filed herewith.
99.2 Press Release dated November 11, 1996. Filed herewith.
99.3 Press Release dated November 13, 1996. Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 15, 1996 LAMAR ADVERTISING COMPANY
By:/s/ Keith A. Istre
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Keith A. Istre
Treasurer and Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------- -------
2.1 Stock Purchase Agreement dated as of September 25, 1996
between the Company and the shareholders of FKM
Advertising Co., Inc. Previously filed as Exhibit 10.17
to the Company's Registration Statement on Form S-3
(File No. 333-14677) and incorporated herein by reference.
4.1 Form of Second Supplemental Indenture in the form of an
Amended and Restated Indenture dated November 8, 1996
relating to the Company's 11% Senior Secured Notes due
May 15, 2003. Filed herewith.
4.2 Notice of Trustee dated November 8, 1996 with respect to
the release of the security interest in the Trustee on
behalf of the holders of the Company's 11% Senior
Secured Notes due May 15, 2003. Filed herewith.
99.1 Press release dated November 7, 1996. Filed herewith.
99.2 Press release dated November 11, 1996. Filed herewith.
99.3 Press release dated November 13, 1996. Filed herewith.
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EXHIBIT 4.1
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LAMAR ADVERTISING COMPANY
As Issuer
---------
STATE STREET BANK AND TRUST COMPANY
As Trustee
----------
-----------------
Form of Second Supplemental Indenture in the form of an
Amended and Restated Indenture
dated as of November 8, 1996,
----------------
$100,000,000
11% Senior Notes Due May 15, 2003
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Certain Sections of this Indenture relating to
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Sections 310 through 318 of the Trust Indenture Act of 1939
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Trust Indenture Act Section Indenture Section
[section]310(a)(1) ............................................... 609
(a)(2)........................................... 609
(a)(3).................................Not Applicable
(a)(4).................................Not Applicable
(b).......................................... 608-610
[section]311(a) ............................................... 613
(b).............................................. 613
[section]312(a) ........................................ 701-702(a)
(b)........................................... 702(b)
(c)........................................... 702(c)
[section]313(a) ............................................ 703(a)
(b)........................................... 703(a)
(c)........................................... 703(a)
(d)........................................... 703(b)
[section]314(a) ............................................... 704
(b)............................................. 1402
(c)(1)........................................... 102
(c)(2)........................................... 102
(c)(3).................................Not Applicable
(d)........................................ 1401-1402
(e).............................................. 102
[section]315(a) ............................................... 601
(b).............................................. 602
(c).............................................. 601
(d).............................................. 601
(e).............................................. 514
[section]316(a) ............................................... 101
(a)(1)(A).................................... 502-512
(a)(1)(B)........................................ 513
(a)(2).................................Not Applicable
(b).............................................. 508
(c)........................................... 104(c)
[section]317(a)(1) ............................................... 503
(a)(2)........................................... 504
(b)............................................. 1003
[section]318(a) ............................................... 107
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS
RECITALS ................................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions................................................... 1
Acquired Business........................................................ 2
Act ..................................................................... 2
Affiliate................................................................ 2
Authenticating Agent..................................................... 2
Board of Directors....................................................... 3
Board Resolution......................................................... 3
Business Day............................................................. 3
Capital Lease Obligations................................................ 3
Capital Stock............................................................ 3
Commission............................................................... 3
Common Stock............................................................. 3
Company ................................................................ 3
Company Request.......................................................... 3
Company Order............................................................ 3
Consolidated Interest Expense............................................ 3
Consolidated Operating Cash Flow......................................... 4
Consolidated Subsidiary.................................................. 4
Corporate Trust Office................................................... 4
corporation.............................................................. 4
Defaulted Interest....................................................... 4
Event of Default......................................................... 4
Exchange Act............................................................. 4
Guarantee................................................................ 4
Holder .................................................................. 5
Incur .................................................................. 5
Indebtedness ............................................................ 5
Indenture................................................................ 6
Interest Payment Date.................................................... 6
Maturity ................................................................ 6
Officers' Certificate.................................................... 6
Opinion of Counsel....................................................... 6
Outstanding.............................................................. 6
Paying Agent............................................................. 7
Person .................................................................. 7
Predecessor Security..................................................... 7
Preferred Stock.......................................................... 7
Pro Forma Acquired Cash Flow............................................. 7
Redeemable Stock......................................................... 7
Redemption Date.......................................................... 8
Redemption Price......................................................... 8
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Related Person........................................................... 8
Regular Record Date...................................................... 8
Responsible Officer...................................................... 8
Securities............................................................... 8
Security Register........................................................ 8
Security Registrar....................................................... 8
Special Record Date...................................................... 8
Stated Maturity.......................................................... 8
Subsidiary............................................................... 8
Trustee ................................................................ 9
Trust Indenture Act...................................................... 9
U.S. Government Obligations.............................................. 9
Vice President........................................................... 9
Voting Stock............................................................. 9
SECTION 102. Compliance Certificates and Opinions.......................... 9
SECTION 103. Form of Documents Delivered to Trustee........................ 10
SECTION 104. Acts of Holders; Record Dates................................. 10
SECTION 105. Notices, Etc., to Trustee, or Company......................... 11
SECTION 106. Notice to Holders; Waiver..................................... 12
SECTION 107. Conflict with Trust Indenture Act............................. 12
SECTION 108. Effect of Headings and Table of Contents...................... 12
SECTION 109. Successors and Assigns........................................ 13
SECTION 110. Separability Clause........................................... 13
SECTION 111. Benefits of Indenture......................................... 13
SECTION 112. Governing Law................................................. 13
SECTION 113. Legal Holidays................................................ 13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.............................................. 13
SECTION 202. Form of Face of Security..................................... 14
SECTION 203. Form of Reverse of Security.................................. 15
SECTION 204. Form of Trustee's Certificate of Authentication.............. 17
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.............................................. 18
SECTION 302. Denominations................................................ 18
SECTION 303. Execution, Authentication, Delivery and Dating............... 18
SECTION 304. Temporary Securities......................................... 19
SECTION 305. Registration, Registration of Transfer and Exchange.......... 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 21
SECTION 307. Payment of Interest; Interest Rights Preserved............... 21
SECTION 308. Persons Deemed Owners........................................ 22
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SECTION 309. Cancellation.................................................. 23
SECTION 310. Computation of Interest....................................... 23
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture....................... 23
SECTION 402. Application of Trust Money.................................... 24
ARTICLE FIVE
Remedies
SECTION 501. Events of Default............................................. 24
SECTION 502. Acceleration of Maturity; Rescission and Annulment............ 26
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee....................................................... 27
SECTION 504. Trustee May File Proofs of Claim.............................. 28
SECTION 505. Trustee May Enforce Claims Without Possession of Securities... 28
SECTION 506. Application of Money Collected................................ 29
SECTION 507. Limitation on Suits........................................... 29
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.................................................. 30
SECTION 509. Restoration of Rights and Remedies............................ 30
SECTION 510. Rights and Remedies Cumulative................................ 30
SECTION 511. Delay or Omission Not Waiver.................................. 30
SECTION 512. Control by Holders............................................ 30
SECTION 513. Waiver of Past Defaults....................................... 31
SECTION 514. Undertaking for Costs......................................... 31
SECTION 515. Waiver of Stay or Extension Laws.............................. 31
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities........................... 32
SECTION 602. Notice of Defaults............................................ 32
SECTION 603. Certain Rights of Trustee..................................... 32
SECTION 604. Not Responsible for Recitals or Issuance of Securities........ 33
SECTION 605. May Hold Securities........................................... 33
SECTION 606. Money Held in Trust........................................... 33
SECTION 607. Compensation and Reimbursement................................ 34
SECTION 608. Disqualification; Conflicting Interests....................... 34
SECTION 609. Corporate Trustee Required; Eligibility....................... 34
SECTION 610. Resignation and Removal; Appointment of Successor............. 35
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SECTION 611. Acceptance of Appointment by Successor........................ 36
SECTION 612. Merger, Conversion, Consolidation or Succession to Business... 36
SECTION 613. Preferential Collection of Claims Against Company............. 37
SECTION 614. Appointment of Authenticating Agent........................... 37
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..... 38
SECTION 702. Preservation of Information; Communications to Holders........ 39
SECTION 703. Reports by Trustee............................................ 39
SECTION 704. Reports by Company............................................ 39
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain Sales and Purchases of
Assets........................................................ 40
SECTION 802. Successor Substituted......................................... 40
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders............ 41
SECTION 902. Supplemental Indentures with Consent of Holders............... 41
SECTION 903. Execution of Supplemental Indentures.......................... 42
SECTION 904. Effect of Supplemental Indentures............................. 42
SECTION 905. Conformity with Trust Indenture Act........................... 43
SECTION 906. Reference in Securities to Supplemental Indentures............ 43
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.................... 43
SECTION 1002. Maintenance of Office or Agency............................... 43
SECTION 1003. Money for Security Payments to be Held in Trust............... 44
SECTION 1004. Statement by Officers as to Default........................... 45
SECTION 1005. Existence..................................................... 45
SECTION 1006. Maintenance of Properties..................................... 45
SECTION 1007. Payment of Taxes and Other Claims............................. 46
SECTION 1008. Maintenance of Insurance...................................... 46
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SECTION 1009. Limitation on Company Indebtedness............................ 46
SECTION 1010. Provision of Financial Information............................ 46
SECTION 1011. Waiver of Certain Covenants................................... 47
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption........................................... 47
SECTION 1102. Applicability of Article...................................... 47
SECTION 1103. Election to Redeem; Notice to Trustee......................... 47
SECTION 1104. Selection by Trustee of Securities to Be Redeemed............. 47
SECTION 1105. Notice of Redemption.......................................... 48
SECTION 1106. Deposit of Redemption Price................................... 49
SECTION 1107. Securities Payable on Redemption Date......................... 49
SECTION 1108. Securities Redeemed in Part................................... 49
ARTICLE TWELVE
Defeasance
SECTION 1201. Company's Option to Effect Defeasance......................... 50
SECTION 1202. Conditions to Defeasance...................................... 50
SECTION 1203. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions................................ 52
SECTION 1204. Reinstatement................................................. 52
ARTICLE THIRTEEN
Effective Date: Release of Guarantees and Pledge
SECTION 1301. Effective Date................................................ 53
SECTION 1302. Release of Guarantees and Pledge.............................. 53
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AMENDED AND RESTATED INDENTURE (herein called the "Indenture"), dated as of
November 8, 1996, among LAMAR ADVERTISING COMPANY, a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 5551 Corporate Blvd., Baton Rouge,
Louisiana 70808, and STATE STREET BANK AND TRUST COMPANY, a banking corporation
duly organized and existing under the laws of the Commonwealth of Massachusetts,
as Trustee (herein called the "Trustee").
RECITALS
The Company duly authorized the creation of an issue of its 11% Senior
Secured Notes Due May 15, 2003, and to provide therefor the Company duly
authorized the execution and delivery of an indenture dated as of May 15, 1993
(the "Original Indenture") and a First Supplemental Indenture thereto dated as
of July 30, 1996.
The Company by Board Resolution has authorized, and the Holders of not less
than a majority in principal amount of the Company's Outstanding 11% Senior
Secured Notes due May 15, 2003 have by consents delivered to the Trustee
consented to, the execution and delivery of this Second Supplemental Indenture
in the form of an Amended and Restated Indenture amending and restating the
Original Indenture, as previously supplemented.
Pursuant to a Second Supplemental Indenture dated as of November 8, 1996,
the Original Indenture as previously amended has been further amended and
restated in the form of this Indenture to provide for such Notes to remain
outstanding in the form of 11% Senior Notes Due May 15, 2003 of substantially
the tenor and amount hereinafter set forth.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered and duly issued by the Company under the
Original Indenture, prior amendments thereto or this Indenture, the valid
obligations of the Company, and to make the Original Indenture, prior amendments
thereto and this Indenture valid agreements of the Company in accordance with
their terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the holding or purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Acquired Business" means (a) assets to be acquired by the Company or any
Consolidated Subsidiary or (b) outstanding capital stock or other equity
interest of any corporation, partnership, limited liability company or other
entity to be acquired by the Company or any Consolidated Subsidiary such that
such acquired entity would become a Consolidated Subsidiary, in either of the
cases specified in the preceding clauses (a) and (b) with the proceeds of
Indebtedness Incurred pursuant to Section 1009.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, (i) "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing; and (ii) any Capital
Stock or other ownership interests of a Person owned by Related Persons of the
Company or officers of the Company shall be deemed to be owned by the Company.
An individual shall not be deemed to be an "Affiliate" of a Person for purposes
of the Indenture solely by reason of serving as an officer or director of such
Person.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means, with respect to the Company, either the board
of directors of the Company or any duly authorized committee of that board.
"Board Resolution" means, with respect to the Company, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by its Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York or in
Boston, Massachusetts are authorized or obligated by law or executive order to
close.
"Capital Lease Obligations" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such person.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Interest Expense" for any Person means for any period the
consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person for such period calculated
on a consolidated basis in accordance with generally accepted accounting
principles, including without limitation or duplication (or, to the extent not
so included, with the addition of), (i) the amortization of Indebtedness
discounts; (ii) any payments or fees with respect to letters of credit, bankers
acceptances or similar facilities; (iii) the net costs (benefits) with respect
to interest rate swap or similar agreements or foreign currency hedge, exchange
or similar agreements; (iv) Preferred Stock dividends declared and payable in
cash; and (v) the portion of any rental obligation allocable to interest
expense.
"Consolidated Operating Cash Flow" means, for any twelve month period, the
sum of (A) operating income for the Company and its Consolidated Subsidiaries
determined on a consolidated basis without duplication in accordance with
generally accepted accounting principles, calculated before (i) taxes, (ii)
Consolidated Interest Expense, (iii) depreciation and amortization and any other
non-cash charges accrued for such period, and (iv) except to the extent received
or paid in cash by the
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Company or any of its Consolidated Subsidiaries, income or loss attributable to
equity in Affiliates for such period, and excluding (a) any extraordinary and
unusual gains or losses during such period, (b) proceeds in respect of casualty
losses and (c) proceeds of any sale, assignment, transfer or other disposition
of any property by the Company or any of its Consolidated Subsidiaries to any
Person with the exception of any such sale, assignment, transfer or other
disposition in the ordinary course of business and on ordinary business terms
and (B) Pro Forma Acquired Cash Flow.
"Consolidated Subsidiary" means for any Person, each Subsidiary of such
Person the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee in the
City of Boston, Massachusetts at which at any particular time its corporate
trust business shall be administered. At the time of execution of this
Indenture, such principal office of the Trustee is located at 225 Franklin
Street, Boston, Massachusetts 02110.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness (and "Guaranteed,"
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing); PROVIDED, HOWEVER, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 generally accepted
accounting principles 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,
HOWEVER, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Indebtedness
shall not be deemed an Incurrence of such Indebtedness.
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"Indebtedness" means (without duplication) with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), (v) every Capital Lease
Obligation of such Person, (vi) the maximum fixed redemption or repurchase price
of Redeemable Stock of such Person at the time of determination, and (vii) every
obligation of the type referred to in Clauses (i) through (vi) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, as obligor, Guarantor or otherwise; PROVIDED, HOWEVER,
that obligations which have been legally discharged (whether by payment or
defeasance) in their entirety and obligations in respect of performance and
surety bonds and in respect of letters of credit supporting insurance
arrangements and performance and surety bonds, each incurred in the ordinary
course of business and not as a part of a financing transaction, for the benefit
of the Company or any Affiliate or Related Person, and obligations in respect of
interest rate swap, cap or collar agreements or similar arrangements providing
for the transfer or mitigation of interest risks either generally or under
specific contingencies, shall not be considered Indebtedness for purposes of the
Indenture.
"Indenture" means the Original Indenture as originally executed, and as
supplemented and amended, or this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of such Original Indenture, this instrument and any such supplemental indenture,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern such Original Indenture, this instrument and any such supplemental
indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004(a) shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
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(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as a Paying Agent) for the Holders of
such Securities; PROVIDED that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been defeased pursuant to Section 1202
hereof; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"Pro Forma Acquired Cash Flow" means, with respect to any Acquired Business
proposed to be acquired in whole or part by the Company or any Consolidated
Subsidiary with the proceeds of
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<PAGE> 14
Indebtedness proposed to be Incurred pursuant to Section 1009, the cash flow
generated by such Acquired Business, calculated by the Company employing
reasonable and customary assumptions on a pro forma basis as if such Acquired
Business had been owned by the Company or such Consolidated Subsidiary at the
beginning of the twelve month calculation period specified in Section 1009.
"Redeemable Stock" of any Person means any equity security of such Person
that by its terms or otherwise is required to be redeemed prior to the final
Stated Maturity of the Securities or is redeemable at the option of the holder
thereof at any time prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Related Person" of any Person means, without limitation, (i) any other
Person owning (a) 5% or more of the outstanding Common Stock of such Person or
(b) 5% or more of the Voting Stock of such Person and (ii) any executive officer
or director of such Person or of a Person included in clause (i).
"Regular Record Date" for the interest payable on any Interest Payment Date
means the May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Department of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by any officer assigned to the Corporate Trust Department of the
Trustee 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.
"Securities" means the Company's Notes issued pursuant to the Original
Indenture and being in the form described in Sections 202 and 203 of the
Original Indenture and designated "11% Senior Secured Notes Due May 15, 2003".
After the effective date of this Amended and Restated Indenture said 11% Senior
Secured Notes Due May 15, 2003 shall be designated 11% Senior Notes Due May 15,
2003 and shall, pursuant to Article Three hereof, be issued in the forms
described in Sections 202 and 203 of this Amended and Restated Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
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<PAGE> 15
"Subsidiary" of any Person means (i) a corporation at least 50% of the
outstanding Voting Stock of which is owned (with the power to vote), directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person,
or by such Person and one or more other Subsidiaries thereof or (ii) any other
Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least 50% ownership and power either (a)
to direct the policies, management and affairs thereof or (b) to cause, subject
to applicable law, such Person to make distributions of the assets thereof to
the owners thereof.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; PROVIDED, HOWEVER, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section 1202.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act or this Indenture. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirement set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except Officers' Certificates under
Section 1004(a)) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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;
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<PAGE> 16
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
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<PAGE> 17
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE, OR COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department or at any other address previously furnished in writing to
the Holders or the Company by the Trustee, or with respect to notices by
the Company transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (617) 664-5371
(telephone number: (617) 664-5608 or to any other facsimile number or
telephone number previously furnished in writing to the Company by the
Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, in the case of the
Company to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company or with respect to notices by the
Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (504) 926-1005
(telephone number (504) 926-1000) or to any other facsimile number or
telephone number previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
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Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
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THIS INDENTURE, THE SECURITIES AND THE GUARANTEES ENDORSED THEREON SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date or at the Stated Maturity, PROVIDED
that, if such payment is so made on such next succeeding Business Day, no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
as evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities as evidenced by their execution of such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
CUSIP NO.
LAMAR ADVERTISING COMPANY
11% SENIOR NOTE DUE MAY 15, 2003
No. $
----------------- -----------
Lamar Advertising Company, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________, or registered assigns, the
principal sum of _____ ________________ Dollars on May 15, 2003, and to pay
interest thereon from May 19, 1993 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on May 15
and November 15 in each year, commencing November 15, 1993, at the
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rate of 11% per annum, until the principal hereof is paid or made available for
payment, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of 11% per annum on any overdue principal and premium
and on any overdue installment of interest until paid. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the May 1 or
November 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the Corporate Trust Office of the Trustee and at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York and at any other office or agency maintained by
the Company for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
LAMAR ADVERTISING COMPANY
[Seal]
By
------------------------
[ ]
Attest:
- ------------------------------
[Secretary]
[Assistant Secretary]
SECTION 203. FORM OF REVERSE OF SECURITY.
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<PAGE> 21
This Security is one of a duly authorized issue of Securities of the
Company designated as its 11% Senior Notes Due May 15, 2003 (herein called the
"Securities"), limited in aggregate principal amount to $100,000,000, issued and
to be issued under an Indenture, dated as of May 15, 1993, as amended by a First
Supplemental Indenture dated as of July 30, 1996 and as further amended and
restated pursuant to a Second Supplemental Indenture dated as of November 8,
1996 in the form of an Amended and Restated Indenture dated as of November 8,
1996 (herein as in effect from time to time called the "Indenture"), between the
Company and State Street Bank and Trust Company, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after May 15, 1998, as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed during the
12-month period beginning May 15 of the years indicated,
Redemption
Year Price
---- ----------
1998 105.50%
1999 102.75%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued and unpaid interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
therein.
In addition to certain amendments permitted without the consent of any
Holders, the Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
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<PAGE> 22
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the Corporate
Trust Office of the Trustee or at the office or agency of the Company in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
A director, officer, employee, incorporator or stockholder of the Company,
as such, shall not have any liability for any obligations of the Company under
this Security or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting this Security waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of this Security.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered in the Security Register as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
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This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: State Street Bank and Trust Company
As Trustee
By
---------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $100,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906, or
1108.
The Securities shall be known and designated as the "11% Senior Notes Due
May 15, 2003" of the Company. Their Stated Maturity shall be May 15, 2003 and
they shall bear interest at the rate of 11% per annum, from May 19, 1993 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable semi-annually on May 15 and November
15, commencing November 15, 1993 until the principal thereof is paid or made
available for payment.
The principal of (and premium, if any) and interest on the Securities shall
be payable at the Corporate Trust Office of the Trustee and at the office or
agency of the Company in the Borough of Manhattan, The City of New York
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose; PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance at the option of the Company
as provided in Article Twelve.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal impressed or reproduced thereon
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<PAGE> 24
attested by its Secretary or one of its Assistant Secretaries. The signature of
any or all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
After the effective date of this Amended and Restated Indenture, in
connection with the issuance of any Security pursuant to Section 305 or 306, the
Company shall execute and the Trustee shall authenticate and deliver, a Security
in the form of an "11% Senior Note Due May 15, 2003" as set forth in Sections
202 and 203 hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations and like tenor. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
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The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, Stated Maturity and tenor upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
Neither the Trustee, the Security Registrar nor the Company shall be
required (i) to issue, authenticate, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities selected for
redemption under Section 1104 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to
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the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor, principal amount and Stated Maturity and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (which, together with any
interest at the rate specified in the Securities on any overdue installment of
interest (to the extent that the payment of such interest shall be legally
enforceable) is herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose name the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided.
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Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered in the Security Register as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be destroyed by the Trustee and, upon the written request
of the Company, the Trustee shall deliver to the Company a certificate of
destruction in respect thereof.
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SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on written demand of and at the
expense of the Company, shall execute instruments reasonably satisfactory to the
Trustee and the Company acknowledging satisfaction and discharge of this
Indenture when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year,
and the Company in the case of (i) or (ii) above, has deposited
or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Stated Maturity;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) 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 the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any
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Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default in the performance, or breach, of Section 801; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default or defaults under any bond(s), debenture(s), note(s) or
other evidence(s) of any Indebtedness by the Company or any Subsidiary of
the Company or under any mortgage(s), indenture(s) or instrument(s) under
which there may be issued or by which there may be secured or evidenced any
Indebtedness by the Company or such Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of $50,000,000,
whether such Indebtedness now exists or shall hereafter be created, which
default or defaults shall constitute a failure to pay any portion of the
principal of such Indebtedness when due
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and payable at the final scheduled maturity of such principal payment
(whether by amortization, sinking fund payment or otherwise) after the
expiration of any applicable grace period with respect thereto or shall
have resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable; or
(6) a final judgment or final judgments for the payment of money are
entered against the Company or any Subsidiary of the Company in an
aggregate amount in excess of $50,000,000 by a court or courts of competent
jurisdiction, which judgments remain undischarged or unbonded for a period
(during which execution shall not be effectively stayed) of 60 days after
the right to appeal all such judgments has expired; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company or any Subsidiary of the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any such
Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any such Subsidiary or of any
substantial part of the property of the Company or any such Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or any
such Subsidiary, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(8) the commencement by the Company or any Subsidiary of the Company
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any such Subsidiary to the entry of a decree or
order for relief in respect of the Company or any such Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company or any such Subsidiary, or the filing by the Company or any such
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by the
Company or any such Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any
such Subsidiary or of any substantial part of the property of the Company
or any such Subsidiary, or the making by the Company or any such Subsidiary
of an assignment for the benefit of creditors, or the admission by the
Company or any such Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any such Subsidiary in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
501(7) or (8)) occurs and is continuing, then and in every such case, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare all of the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders),
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and upon any such declaration such principal shall become immediately due and
payable. If an Event of Default specified in Section 501 (7) or (8) occurs, the
Securities then Outstanding shall ipso facto become immediately due and payable
without any declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal of (and premium, if any) and interest on, and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at
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the rate provided by the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements, advances or
liabilities of the Trustee, its agents and counsel incurred hereunder.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company, or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, or the property of the Company or its creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due 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 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; 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
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
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Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
Subject to Sections 601 and 603(e), the Holders of a majority in principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
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The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any party litigant in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or in any suit
instituted by the Trustee.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in
the case of any default of the character specified in Section 501(4), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, order, demand or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter (including whether any Person is an
Affiliate of the Company) be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not
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be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company or any other
obligor upon the Securities with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company covenants and agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may arise from its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this Indenture or the performance of any of its powers or duties
hereunder, including the 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.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
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If after the occurrence of a default hereunder the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent, at
the time and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in or in the vicinity of the City of Boston, Massachusetts or in the
Borough of Manhattan, The City of New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company and written notice to the Holders in the manner
provided by Section 105. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to
the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee and appoint a successor Trustee, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a
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Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give written notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the written request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of any amounts
then due it under Section 607, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of any
such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver
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the Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities, the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may from time to time appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment to all Holders in the manner provided in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally
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named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
Dated: State Street Bank and Trust Company
As Trustee
By
-----------------------------
As Authenticating Agent
By
-----------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee and the
Collateral Agent
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee or Collateral Agent may
reasonably require, of the names and addresses of the Holders as of such
Regular Record Date, and
(b) at such other times as the Trustee or Collateral Agent may request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Securities are listed
on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; PROVIDED that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION, ETC.
SECTION 801. MERGERS, CONSOLIDATIONS AND CERTAIN SALES AND PURCHASES OF ASSETS.
The Company (a) shall not consolidate with or merge into any other Person;
(b) shall not permit any other Person to consolidate with or merge into the
Company; (c) shall not, directly or indirectly, transfer, convey, sell, lease or
otherwise dispose of all or substantially all of its properties and assets as an
entirety; and (d) shall not directly or indirectly purchase, lease or otherwise
acquire all or substantially all of the property and assets of any Person as an
entirety or any existing business (whether existing as a separate entity,
subsidiary, division, unit or otherwise) of any Person, UNLESS
(1) immediately after giving effect to such transaction and treating
any Indebtedness that becomes an obligation of the Company as a result of
such transaction, as having been Incurred by the Company at the time of the
transaction, no Event of Default or event that, with the passing of time or
the giving of notice, or both, would become an Event of Default, shall have
occurred and be continuing;
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(2) in a transaction in which the Company does not survive or in which
the Company sells, leases or otherwise disposes of all or substantially all
of its assets, the successor entity to the Company is organized under the
laws of the United States or any State thereof or the District of Columbia
and expressly assumes, by a supplemental indenture executed and delivered
to the Trustee in the form satisfactory to the Trustee, all of the
Company's obligations under the Indenture;
(3) in any such transaction involving the Incurrence by the Company,
directly or indirectly, of additional Indebtedness (and treating any
Indebtedness not previously an obligation of the Company in connection with
or as a result of such transaction as having been Incurred at the time of
such transaction), the Company (or other successor entity) immediately
after giving effect to any such transaction (and excluding Indebtedness
Incurred as permitted under Section 1009) could Incur at least $1.00 of
additional Indebtedness pursuant to Section 1009; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture, complies with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any transfer, conveyance, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company as an
entirety in accordance with Section 801, the successor to the Company shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution of the Company, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
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(3) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, PROVIDED that such action pursuant to this Clause (4) shall
not adversely affect the interests of the Holders in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution of
the Company, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable thereon, or change the
place of payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) (except as permitted by Section 901(4)), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section or Section 513 except
to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture
is enforceable against the
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Company or its successor, as applicable, in accordance with its terms. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands. At the time of the execution of this Indenture, the office
where Securities may be surrendered for registration of transfer or exchange or
where notices and demands to or upon the
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Company in respect of the Securities and this Indenture may be served is located
at State Street Bank and Trust Company, N.A., 61 Broadway, New York, New York.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (i) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent, (ii) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of any payment
of principal of (and premium, if any) or interest in respect of the Securities
and (iii) during the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in respect of the
Securities, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company as trustee thereof,
and all liability of the
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Trustee or such Paying Agent with respect to such trust money, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, 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 publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in compliance with all conditions and
covenants under this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall not be
in compliance, specifying all defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware or should
reasonably become aware of the occurrence of an Event of Default or an
event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of
such Event of Default or default, and the action which the Company proposes
to take with respect thereto.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary of the Company to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any such Subsidiary
and not disadvantageous in any material respect to the Holders.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
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The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any 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 whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1008. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Subsidiaries to, keep at all times
all of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 1009. LIMITATION ON COMPANY INDEBTEDNESS
The Company shall not Incur any Indebtedness UNLESS the ratio of (a) the
aggregate consolidated principal amount of Indebtedness of the Company and its
Consolidated Subsidiaries as of the end of the most recently ended month for
which a consolidated balance sheet is available, after giving pro forma effect
to the Incurrence of such Indebtedness and any other Indebtedness Incurred, paid
or prepaid since such balance sheet date and the receipt and application of the
proceeds of such Indebtedness Incurred to (b) Consolidated Operating Cash Flow
for the most recently ended twelve month period for which a consolidated cash
flow statement is available, calculated on a pro forma basis as if any such
Indebtedness had been incurred, and the proceeds applied at the beginning of
such twelve month period, would be less than 7.5 to 1.
SECTION 1010. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is required to be subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company shall
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Company were so required, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so required. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee copies of the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provisions thereto if the Company were required to be subject to such
Sections and (b) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request supply
copies of such documents to any prospective Holder.
SECTION 1011. WAIVER OF CERTAIN COVENANTS.
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The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 801 and Sections 1005 to 1010, if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the Company, as a whole
or from time to time in part, at any time on or after May 15, 1998, at the
Redemption Prices specified in the form of Security hereinbefore set forth
together with accrued and unpaid interest to the Redemption Date.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities to be
redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, substantially pro rata, by lot or by such other method as
the Trustee shall deem fair and appropriate and if the Securities are listed on
any securities exchange, by a method that complies with the requirements of such
exchange, and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(5) the name of the Paying Agent and place or places where such
Securities are to be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued and unpaid interest on, all the
Securities which are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued and unpaid
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered
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as such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute the Security and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
DEFEASANCE
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE.
The Company may at its option by Board Resolution of the Company, at any
time, elect to effect defeasance of the Outstanding Securities and shall be
discharged from its obligations with respect to the Outstanding Securities on
the date the conditions set forth in this Article Twelve are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the Outstanding Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
instruments in form satisfactory to the Company and the Trustee acknowledging
the same), except for the following obligations under the Securities and the
Indenture, which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1204 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (C) Section 607 and the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Twelve.
SECTION 1202. CONDITIONS TO DEFEASANCE.
The following shall be the conditions to defeasance of the then Outstanding
Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust funds in trust for the purpose of
making the payments described below, specifically pledged as security for,
and
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dedicated solely to, the benefit of the Holders of such Securities, (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 one day before 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 each installment of interest on the Securities
on the Stated Maturity of such principal or installment of interest in
accordance with the terms of this Indenture and of such Securities. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt; PROVIDED, HOWEVER, that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) The Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date
of the Original Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Securities will
not recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not
occurred.
(3) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default shall have occurred and be continuing
on the date of such deposit or, insofar as subsections 501(7) and (8) are
concerned, at any time during the period ending on the 121st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(4) Such defeasance shall not cause the Trustee to have a conflicting
interest as defined in Section 608 and for purposes of the Trust Indenture
Act with respect to any securities of the Company.
(5) Such defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound.
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(6) 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 the defeasance have been complied with.
(7) Such defeasance shall not result in the trust arising from such
deposit constituting an investment company as defined in the Investment
Company Act of 1940, as amended, or such trust shall be qualified under
such act or exempt from regulation thereunder.
SECTION 1203. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively, for purposes of this
Section 1203, the "Trustee") pursuant to Section 1202 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1202 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve 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 1202 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 defeasance.
SECTION 1204. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1201 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1201; PROVIDED,
HOWEVER, that if the Company makes any payment of principal of (and premium, if
any) or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
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ARTICLE THIRTEEN
EFFECTIVE DATE: RELEASE OF GUARANTEES AND PLEDGE
SECTION 1301. EFFECTIVE DATE.
This Second Supplemental Indenture in the form of an Amended and Restated
Indenture shall be effective, and the effective date shall be deemed to have
occurred, upon the receipt by the Trustee of a written notice from the Company
that the conditions to the Offer to Purchase the Company's 11% Senior Secured
Note due May 15, 2003, and Consent Solicitation dated October 17, 1996, have
been satisfied or waived by the Company and that the Acceptance Date (as defined
therein) has occurred.
SECTION 1302. RELEASE OF GUARANTEES AND PLEDGE.
(a) At any time after the date of this Second Supplemental Indenture
in the form of an Amended and Restated Indenture, and effective upon its
effective date, upon the written request of any of the Subsidiary
Guarantors, the Trustee shall execute and deliver to it any document
reasonably required in order to evidence the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee endorsed on
the Securities and under Article Thirteen of the Original Indenture.
(b) At any time after the date of this Second Supplemental Indenture
in the form of an Amended and Restated Indenture, and effective upon its
effective date, upon the written request of the Company, the Trustee shall
deliver a certificate to the Collateral Agent named in the Original
Indenture acknowledging to the Collateral Agent that the holders of the
Securities shall have no further claim to the Collateral under the terms of
the Indenture and Pledge Agreement.
[The balance of this page intentional left blank]
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
LAMAR ADVERTISING COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Attest:
----------------------------
Name:
------------------------------
Title:
-----------------------------
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------
Name: Andrew M. Sinasky
------------------------------
Title: Assistant Vice President
-----------------------------
Attest:
----------------------------
Name:
------------------------------
Title:
-----------------------------
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STATE OF LOUISIANA
EAST BATON ROUGE PARISH
On the 12th day of November, 1996, before me personally came
____________________ to me known, who, being by me duly sworn, did depose and
say that he is a Vice President of Lamar Advertising Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
----------------------------
My Commission Expires on:
COMMONWEALTH OF MASSACHUSETTS ss:
COUNTY OF SUFFOLK
On the 12th day of November, 1996, before me personally came Andrew M.
Sinasky, to me known, who, being by me duly sworn, did depose and say that he is
an Assistant Vice President of State Street Bank and Trust Company, the banking
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------
My Commission Expires on:
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<PAGE> 1
EXHIBIT 4.2
Notice of Trustee
State Street Bank and Trust Company, as trustee (the "Trustee") under the
Indenture dated as of May 13, 1993 with respect to the 11% Senior Secured Notes
due May 15, 2003 (the "Notes") issued by Lamar Advertising Company (the
"Company"), as such Indenture has been amended by various supplemental
indentures for the purpose of adding Subsidiary Guarantors thereto and by the
First Supplemental Indenture dated as of July 30, 1996 (as amended to date, the
"Original Indenture"), hereby notifies The Chase Manhattan Bank (as successor by
merger to the Chase Manhattan Bank (National Association)), as Collateral Agent
(the "Collateral Agent") pursuant to a Pledge Agreement dated as of May 15, 1993
among the Company and the companies identified therein as "Subsidiary Pledgors",
as amended by Amendment No. 1 thereto dated May 31, 1995, and as further amended
by the Second Amendment to Pledge Agreement dated as of July 30, 1996 (as
amended to date, the "Pledge Agreement") that, as a result of amendments to the
Original Indenture and Pledge Agreement approved by the holders of not less than
a majority in aggregate principal amount of the outstanding Notes, effective as
of the Acceptance Date (as hereinafter defined) the Trustee (acting on behalf of
itself and the holders of the Notes) shall cease to be a "Secured Party" and
cease to benefit from any of the provisions of the Pledge Agreement.
As used herein the Acceptance Date shall be the date certain or all of the
Notes are accepted for payment by the Company in accordance with the Offer to
Purchase and Consent Solicitation Statement dated October 17, 1996 issued by the
Company with respect to the Notes, if such Acceptance Date occurs. Pursuant to a
letter of even date herewith, the Company has undertaken to send written notice
either of (i) the occurrence of the Acceptance Date or (ii) the abandonment or
other termination of the Tender Offer described in such Offer to Purchase and
Consent Solicitation Statement. In the event the Company issues a notice
described in clause (i) of the preceding sentence this notice shall be effective
as of the date specified therein and in the event the Company issues a notice
described in clause (ii) of such sentence, this Notice of Trustee shall
thereupon have no force or legal effect.
State Street Bank and Trust Company,
as Trustee
By:
--------------------------------
Andrew M. Sinasky
Assistant Vice President
<PAGE> 1
EXHIBIT 99.1
LAMAR ADVERTISING COMPANY ANNOUNCES CONSENT ACHIEVEMENT
BATON ROUGE -- (BUSINESS WIRE) -- November 7, 1996 -- Lamar Advertising
Company announced today that, in connection with its tender offer for, and its
consent solicitation with respect to, all of its $100,000,000 outstanding 11%
Senior Secured Notes Due May 15, 2003, as of 9:00 a.m. on November 7, 1996,
holders representing over a majority in principal amount of the Notes had
validly tendered their Notes and delivered their consents to certain amendments
to the indenture under which the Notes were issued. The proposed amendments
would, among other things, eliminate substantially all of the indenture's
restrictive covenants, release Lamar's subsidiaries from their obligations as
guarantors of the Notes and release the collateral securing the Notes.
Under the terms of Lamar's offer to purchase governing the tender offer and
consent solicitation, which was mailed to all registered holders of the Notes on
October 17, 1996, only holders who tender their Notes and deliver related
consents by 12:00 midnight, New York City time, on November 8, 1996 will be
entitled to receive a consent payment of $5.00 per $1,000 principal amount of
Notes if the Notes are accepted for purchase pursuant to the offer to purchase.
Note holders who validly tender Notes after November 8 but prior to 12:00
midnight on the expiration date, which will be November 19, 1996, unless
extended, will not be entitled to a consent payment, but will receive the
balance of the consideration being offered for the outstanding Notes, subject to
the terms and conditions of the Company's offer to purchase.
If Notes representing a majority in principal amount of the total amount
outstanding remain validly tendered and unrevoked at 12:00 midnight, New York
City time, on November 8, 1996, the Company intends to promptly cause a
supplemental indenture incorporating the proposed amendments to be executed, as
described in the Company's offer to purchase. Although the supplemental
indenture will have then been executed, the proposed amendments will not become
operative unless the Company's offer to purchase is consummated in accordance
with its terms. If the proposed amendments become operative, the holders of
untendered Notes will be bound thereby.
As previously announced, the tender offer consideration will be priced to
equal (i) the present value on the payment date of the Notes, determined on the
basis of a yield to the earliest redemption date equal to the sum of (x) the
yield on the 6-1/8% U.S. Treasury Note due May 15, 1998, as of 2:00 p.m., New
York City time, on the third business day immediately preceding the expiration
date of the tender offer plus (y) 75 basis points (such price being rounded to
the nearest cent per $1,000 principal amount of Notes), plus (ii) accrued but
unpaid interest, if any, up to but not including the payment date, minus (iii) a
payment of $5.00 per $1,000 principal amount of Notes validly tendered, which is
equal to the consent payment referred to above. The tender offer is conditioned
upon, among other things, the execution by the trustee of the supplemental
indenture to the indenture under which the Notes were issued.
<PAGE> 2
Smith Barney, Inc. is the Dealer Manager for the tender offer and consent
solicitation, and, MacKenzie Partners, Inc. is the Information Agent.
CONTACT: Lamar Advertising Company
Keith Istre, (504) 926-1000
or
MacKenzie Partners Inc.
Mark H. Harnett, (212) 929-5877
or
Smith Barney Inc.
Paul Galant, (800) 655-4811
<PAGE> 1
EXHIBIT 99.2
Company Contacts: Keith A. Istre Rod Rackley
Chief Financial Officer Investor Relations
(504) 926-1000 (504) 926-1000
LAMAR ADVERTISING ANNOUNCES NEW LOGO AND TRANSIT FRANCHISES
Baton Rouge, LA -- Monday, November 11, 1996 -- Lamar Advertising Company
(Nasdaq: LAMR), a leading outdoor advertising company, announced today that it
has been selected to operate the logo sign franchise for the state of Florida.
Logo signs are blue directional signs located on public rights-of-way near
highway exits and deliver brand name information on available gas, food, lodging
and camping services. Logo sign franchises are awarded on a state-wide basis.
Lamar was also recently selected to provide tourist-oriented directional
signage (TODS) for the Canadian province of Ontario. The Ministry of Economic
Development, Trade and Tourism selected Canadian TODS, Inc., a wholly-owned
subsidiary of Lamar, in a competitive selection process. This represents Lamar's
first logo sign operation outside of the United States.
In addition to the Florida and Ontario programs, Lamar recently signed a
purchase agreement to acquire the logo sign operations in Kentucky and Nevada.
The transaction is subject to customary closing conditions, including required
regulatory approvals. Including Florida, Kentucky and Nevada, Lamar's
wholly-owned subsidiary, Interstate Logos, Inc., operates (or will operate) 18
logo sign franchises out of the 22 states which have a privatized logo sign
program.
Lamar also recently announced a $1.1 million acquisition of approximately
450 transit advertising displays located in the following markets: Augusta, GA,
Greenville, SC, North Charleston, SC, Spartanburg, SC, and Columbia, SC. Through
its transit advertising business, started in early 1995, Lamar operates displays
on bus shelters, benches and buses.
<PAGE> 1
EXHIBIT 99.3
Company Contacts: Keith A. Istre Rod Rackley
Chief Financial Officer Investor Relations
(504) 926-1000 (504) 926-1000
Lamar Advertising Announces Extension of Tender Offer
Baton Rouge, LA -- Wednesday, November 13, 1996 -- Lamar Advertising
Company announced today that, in connection with its tender offer for, and its
consent solicitation with respect to, all of its $100,000,000 outstanding 11%
Senior Secured Notes due May 15, 2003, it is extending the Expiration Date,
which is currently scheduled for November 19, 1996, to 12:00 midnight, New York
City time, November 25, 1996. Because this represents an extension of longer
than three business days, the Price Determination Date, currently scheduled for
November 14, 1996, is being changed to November 20, 1996. All other terms of the
Offer remain unchanged.
In excess of a majority in principal amount of the Notes have been
tendered pursuant to the Offer.
