Exhibit
99.1
EXECUTION VERSION
AMC NETWORKS INC.,
Issuer,
and
EACH OF THE GUARANTORS PARTY HERETO
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
Indenture
Dated as of June 30, 2011
$700,000,000
7.75% Senior Notes due 2021
TABLE OF CONTENTS
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Page
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RECITALS OF THE COMPANY
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1
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 101. Definitions
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1
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Section 102. Other Definitions
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32
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Section 103. Compliance Certificates and Opinions
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33
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Section 104. Form of Documents Delivered to Trustee
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33
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Section 105. Acts of Holders
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34
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Section 106. Notices, Etc. to Trustee and Company
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35
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Section 107. Notice to Holders; Waiver
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35
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Section 108. Conflict of Any Provision of Indenture with Trust Indenture Act
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36
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Section 109. Effect of Headings and Table of Contents
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36
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Section 110. Successors and Assigns
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36
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Section 111. Separability Clause
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36
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Section 112. Benefits of Indenture
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36
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Section 113. Governing Law; Waiver of Jury Trial
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36
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Section 114. Legal Holidays
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37
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Section 115. No Recourse Against Others
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37
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Section 116. U.S.A. Patriot Act
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37
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Section 117. Force Majeure
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37
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ARTICLE TWO SECURITY FORMS
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38
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Section 201. Forms Generally; Incorporation of Form in Indenture
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38
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Section 202. Form of Face of Security
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38
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Section 203. Form of Reverse of Security
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40
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Section 204. Form of Trustees Certificate of Authentication
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44
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Section 205. Form of Legend on Restricted Securities
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44
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Section 206. Form of Legend for Book-Entry Securities
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45
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ARTICLE THREE THE SECURITIES
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46
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Section 301. Title and Terms
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46
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Section 302. Denominations
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47
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Section 303. Execution, Authentication, Delivery and Dating
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47
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Section 304. Temporary Securities
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49
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Section 305. Registration, Registration of Transfer and Exchange
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49
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities
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51
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Section 307. Payment of Interest; Interest Rights Preserved
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51
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Section 308. Persons Deemed Owners
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53
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Section 309. Cancellation
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53
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Section 310. Computation of Interest
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53
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Section 311. Registration Rights of Holders of Initial Securities
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53
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Section 312. ISIN and CUSIP Numbers
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53
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Section 313. Book-Entry Provisions for Global Securities
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53
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Section 314. Special Transfer Provisions
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55
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i
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Page
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ARTICLE FOUR SATISFACTION AND DISCHARGE
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58
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Section 401. Satisfaction and Discharge of Indenture
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58
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Section 402. Application of Trust Money
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59
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ARTICLE FIVE REMEDIES
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59
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Section 501. Events of Default
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59
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Section 502. Acceleration of Maturity; Rescission
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61
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
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62
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Section 504. Trustee May File Proofs of Claim
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63
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Section 505. Trustee May Enforce Claims Without Possession of Securities
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64
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Section 506. Application of Money Collected
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64
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Section 507. Limitation on Suits
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64
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Section 508. Unconditional Right of Holders to Receive Principal and Interest
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65
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Section 509. Restoration of Rights and Remedies
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65
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Section 510. Rights and Remedies Cumulative
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65
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Section 511. Delay or Omission Not Waiver
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65
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Section 512. Control by Holders
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66
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Section 513. Waiver of Past Defaults
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66
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Section 514. Undertaking for Costs
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66
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Section 515. Waiver of Stay, Extension or Usury Laws
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67
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ARTICLE SIX THE TRUSTEE
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67
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Section 601. Certain Duties and Responsibilities
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67
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Section 602. Certain Rights of Trustee
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68
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Section 603. Not Responsible for Recitals or Issuance of Securities
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70
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Section 604. May Hold Securities
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70
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Section 605. Money Held in Trust
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71
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Section 606. Compensation and Reimbursement
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71
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Section 607. Conflicting Interests
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71
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Section 608. Corporate Trustee Required; Eligibility
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72
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Section 609. Resignation and Removal; Appointment of Successor
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72
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Section 610. Acceptance of Appointment by Successor
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73
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Section 611. Merger, Conversion, Consolidation or Succession to Business
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73
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Section 612. Preferential Collection of Claims Against Company
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74
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Section 613. Trustees Application for Instructions from the Company
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74
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Section 614. Notice of Defaults
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74
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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75
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Section 701. Disclosure of Names and Addresses of Holders
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75
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Section 702. Reports by Trustee
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75
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Section 703. Reports by Company
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75
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ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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76
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Section 801. Company May Consolidate, Etc., Only on Certain Terms
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76
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Section 802. Successor Substituted
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77
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ARTICLE NINE SUPPLEMENTAL INDENTURES
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77
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Section 901. Supplemental Indentures Without Consent of Holders
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77
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Section 902. Supplemental Indentures with Consent of Holders
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78
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Section 903. Execution of Supplemental Indentures
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79
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ii
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Page
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Section 904. Effect of Supplemental Indentures
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79
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Section 905. Conformity with Trust Indenture Act
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79
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Section 906. Reference in Securities to Supplemental Indentures
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79
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ARTICLE TEN COVENANTS
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80
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Section 1001. Payment of Principal and Interest
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80
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Section 1002. Maintenance of Office or Agency
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80
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Section 1003. Money for Security Payments to Be Held in Trust
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80
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Section 1004. Corporate Existence
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81
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Section 1005. Payment of Taxes and Other Claims
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82
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Section 1006. Maintenance of Properties
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82
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Section 1007. Limitation on Indebtedness
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82
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Section 1008. Limitation on Liens
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86
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Section 1009. Limitation on Restricted Payments
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87
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Section 1010. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
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89
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Section 1011. Transactions with Affiliates
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90
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Section 1012. Designation of Restricted and Unrestricted Subsidiaries
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92
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Section 1013. Guarantees
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94
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Section 1014. Asset Sales
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95
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Section 1015. Offer to Repurchase upon a Change of Control
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95
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Section 1016. Suspension of Covenants Upon Investment Grade Ratings
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97
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Section 1017. Limitation on Issuances and Sales of Equity Interests in Restricted Subsidiaries
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97
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Section 1018. [RESERVED]
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97
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Section 1019. Statement as to Compliance
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97
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Section 1020. Waiver of Certain Covenants
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98
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Section 1021. Statement by Officers as to Default
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98
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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98
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Section 1101. Notices to Trustee
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98
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Section 1102. Selection of Securities to Be Redeemed
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98
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Section 1103. Notice of Redemption
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99
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Section 1104. Effect of Notice of Redemption
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99
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Section 1105. Deposit of Redemption Price
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100
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Section 1106. Securities Redeemed in Part
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100
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Section 1107. Optional Redemption
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100
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Section 1108. Repurchase at the Option of Holders
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101
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ARTICLE TWELVE NOTE GUARANTEES
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103
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Section 1201. Note Guarantee
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103
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Section 1202. Limitation on Guarantor Liability
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104
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Section 1203. Execution and Delivery of Note Guarantee
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104
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TESTIMONIUM
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S-1
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SIGNATURES AND SEALS
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S-1
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ACKNOWLEDGMENTS
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S-2
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iii
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EXHIBIT A List of Restricted Subsidiaries
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A-1
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EXHIBIT B Form of Notation of Guarantee
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B-1
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iv
Reconciliation and Tie Between Trust Indenture Act
of 1939 and Indenture
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Trust Indenture
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Act Section
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Indenture Section
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§310(a)(1)
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608
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(a)(2)
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608
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(b)
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607, 609
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§311(a)
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612
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(b)
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612
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§312(a)
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701
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(b)
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701
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(c)
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701
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§313
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702
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§314(a)
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703
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(a)(4)
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1019
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(c)(1)
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103
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(c)(2)
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103
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(e)
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103
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§315(b)
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601
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§316(a)(last sentence)
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101
(Outstanding)
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(a)(1)(A)
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502, 512
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(a)(1)(B)
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513
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(b)
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508
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(c)
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105
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(d)
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§317(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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§318(a)
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108
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Note:
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This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Indenture.
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v
INDENTURE, dated as of June 30, 2011, among AMC Networks Inc., a Delaware corporation
(hereinafter called the Company), the Guarantors (as defined herein) and U.S. Bank National
Association, a national banking association, as trustee (hereinafter called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 7.75% Senior Notes due 2021
(hereinafter called the Initial Securities, and together with any Exchange Securities (as defined
herein) and any Additional Securities, the Securities), of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
Upon the issuance of the Exchange Securities, if any, or the effectiveness of the Exchange
Offer Registration Statement (as defined herein) or, under certain circumstances, the effectiveness
of the Shelf Registration Statement (as defined herein), this Indenture shall be subject to, and
shall be governed by, the provisions of the Trust Indenture Act that are required to be part of
this Indenture and shall to the extent applicable be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and 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
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For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP (as defined herein); and
(d) 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 Indebtedness means Indebtedness of a Person (a) existing at the time such Person is
merged with or into the Company or a Subsidiary or becomes a Subsidiary or (b) assumed in
connection with the acquisition of assets from such Person.
Additional Securities means an unlimited maximum aggregate principal amount of 7.75% Senior Notes
due 2021 (other than the Initial Securities and Exchange Securities) issued under this Indenture in
accordance with Section 303 and subject to Section 1007 hereof.
Affiliate means, with respect to any specified Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition,
control
, when used with respect to any specified Person,
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise, and the terms
controlling
and
controlled
have meanings correlative to the foregoing.
Affiliation Agreement means any agreement between the Company or any of its Restricted
Subsidiaries and a distributor pursuant to which such distributor agrees, among other things, to
distribute and exhibit to its subscribers programming of the Company or such Restricted Subsidiary,
as the case may be.
Agent Members has the meaning specified in Section 313.
Annual Operating Cash Flow means, as of any date, Operating Cash Flow for the period of four
consecutive fiscal quarters covered by the then most recent report furnished or deemed furnished to
the Trustee and the Holders of Securities under Section 703.
Asset Sale means:
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(1)
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the sale, lease, conveyance or other disposition of any
property or assets; other than a sale, lease, conveyance or other disposition
governed by Section 1015 or Article 8; and
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(2)
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the issuance of Equity Interests by any of the Companys
Restricted Subsidiaries or the sale by the Company or any Restricted Subsidiary
thereof of Equity Interests in any of its Restricted Subsidiaries (other than
directors qualifying shares and shares issued to foreign nationals to the
extent required by applicable law).
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Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:
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(1)
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any single transaction or series of related transactions that
involves properties or assets having a Fair Market Value of less than $25.0
million;
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(2)
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the sale, lease, conveyance or other disposition of properties
or assets between or among the Company and its Restricted Subsidiaries
(including any transfer to any Person that concurrently becomes a Restricted
Subsidiary);
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2
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(3)
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an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary;
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(4)
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the sale, lease, conveyance or other disposition of equipment,
inventory, materials, accounts receivable or other assets in the ordinary
course of business;
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(5)
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the sale, lease, conveyance or other disposition of
intellectual property and other intangibles in the ordinary course of business;
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(6)
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the licensing or sublicensing of intellectual property,
intellectual property rights or other general intangibles, and licenses,
leases, sublicenses or subleases of other assets or property which do not
materially interfere with the business of the Company or any of its Restricted
Subsidiaries;
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(7)
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the sale, conveyance or other disposition of cash and Cash
Equivalents;
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(8)
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the sale, conveyance or other disposition of accounts
receivables, including overdue or disputed accounts receivable, in connection
with the compromise, settlement or collection thereof or in bankruptcy or
similar proceedings;
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(9)
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a Restricted Payment that is not prohibited by Section 1009 and
any Investment that is not prohibited Section 1012, including any Permitted
Investment;
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(10)
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the granting of a Lien not prohibited under this Indenture;
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(11)
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any surrender or waiver of contract rights or the settlement,
release or surrender of contract rights, tort claims or other litigation
claims;
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(12)
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the termination of hedging or similar arrangements;
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(13)
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the sale, lease, conveyance or other disposition of properties
or assets that has become damaged, worn out, obsolete or otherwise unsuitable
for use in connection with the business of the Company or its Restricted
Subsidiaries;
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(14)
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(a) the sale, lease, conveyance or other disposition of
property or assets to an Unrestricted Subsidiary or to a joint venture of an
Unrestricted Subsidiary,
provided
, that as of the date of such Asset Sale the
aggregate fair market value of property and assets subject to such Asset Sale
(determined at the time of such Asset Sale) pursuant to this clause (14)(a)
during the term of this Indenture does not exceed $100.0 million, or (b) the
sale, lease, conveyance or other disposition of Unrestricted Subsidiaries;
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3
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(15)
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the sale, lease, conveyance or other disposition of assets or
properties to the extent that such assets or properties are exchanged for
credit against the purchase price of similar replacement assets or properties
or the proceeds of such disposition are reasonably promptly applied to the
purchase price of such replacement assets or properties, in each case, in the
ordinary course of business;
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(16)
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the settlement of tort or other litigation claims;
provided
that if any such settled claim shall have a value in excess of $25.0 million,
the board of directors or similar governing body of the Company determines it
to be fair and reasonable in light of the circumstances; and
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(17)
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the sale, lease, conveyance or other disposition in accordance
with a Distribution Transaction Agreement (as defined in the Credit
Agreement).
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Bankruptcy Law has the meaning specified in Section 501.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act. The terms Beneficially Owns and Beneficially Owned shall each have a
corresponding meaning.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification and delivered to the Trustee.
Book-Entry Security means a Security represented by a Global Security and registered in the name
of the nominee of the Depository.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York are authorized or obligated by law, regulation
or executive order to close.
Cablevision means Cablevision Systems Corporation, a Delaware corporation.
Capital Stock means, with respect to any Person, any and all shares, interests, participations or
other equivalents (however designated) of such Persons capital stock whether now outstanding or
issued after the date of this Indenture, including, without limitation, all Common Stock, Preferred
Stock and Disqualified Stock.
Capitalized Lease Obligation means any obligation of a Person to pay rent or other amounts under
a lease (or other agreement conveying the right to use) with respect to any property, whether real,
personal or mixed, which obligation is required to be accounted for as a capital lease on the
balance sheet of such Person in accordance with GAAP, and the amount of such Capitalized Lease
Obligation shall be the amount so required to be accounted for as a capital lease.
4
Cash Equivalents means:
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(1)
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United States dollars;
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(2)
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marketable direct obligations of the United States of America
maturing, unless such securities are deposited to defease any Indebtedness,
within 397 days of the date of purchase;
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(3)
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commercial paper issued by a Person having consolidated net
worth of at least $250.0 million, which conducts a substantial part of its
business in the United States of America, maturing within 180 days from the
date of the original issue thereof, and rated P-1 or better by Moodys or
A-1 or better by S&P;
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(4)
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fully collateralized repurchase agreements with financial
institutions having a rating of Baa or better from Moodys or a rating of
A- or better from S&P;
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(5)
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certificates of deposit, bankers acceptances and time deposits
maturing within 397 days after the date of purchase, which are issued by a
United States national or state bank or foreign bank having capital, surplus
and undivided profits totaling more than $100.0 million, and having a rating of
Baa or better from Moodys, or a rating of A- or better from S&P;
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(6)
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money market funds that (i) comply with the criteria set forth
in the Commissions Rule 2a-7 under the Investment Company Act of 1940, (ii)
are rated AAA by S&P and Aaa by Moodys and (iii) have portfolio assets of
at least $3 billion;
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(7)
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repurchase obligations of any lender under the Credit Agreement
or of any commercial bank satisfying the requirements of clause (3) of this
definition, having a term of not more than thirty days, with respect to
securities issued or fully guaranteed or insured by the United States
government;
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(8)
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obligations of any State, commonwealth or territory of the
United States or any political subdivision thereof for the payment of the
principal and redemption price of and interest on which there shall have been
irrevocably deposited the government obligations described in clause (2) of
this definition maturing as to principal and interest at times and in amounts
sufficient to provide such payment;
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|
(9)
|
|
auction preferred stock rated in the highest short-term credit
rating category by S&P or Moodys;
|
|
(10)
|
|
securities with maturities of six months or less from the date
of acquisition backed by standby letters of credit issued by any lender under
the Credit
|
5
|
|
|
Agreement or any commercial bank satisfying the requirements of clause (3)
of this definition); or
|
|
(11)
|
|
money market mutual or similar funds that invest exclusively in
assets satisfying the requirements of clauses (1) through (10) of this
definition.
|
Cash Flow Ratio means, as of any date, the ratio of (a) the sum of the aggregate outstanding
principal amount of all Net Debt outstanding on such date determined on a consolidated basis, but
excluding all Interest Swap Obligations and all Monetization Indebtedness, plus (but without
duplication of Indebtedness supported by letters of credit) the aggregate undrawn face amount of
all letters of credit outstanding on such date to (b) Annual Operating Cash Flow.
Change of Control means the occurrence of any of the following:
|
(1)
|
|
the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of pledge, merger or consolidation), in one or a
series of related transactions, of all or substantially all of the properties
or assets of the Company and its Restricted Subsidiaries, taken as a whole, to
any person (as that term is used in Section 13(d)(3) of the Exchange Act),
other than to one or more of the Dolan Family Interests;
|
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(2)
|
|
the adoption of a plan relating to the liquidation or
dissolution of the Company;
|
|
(3)
|
|
any person or group (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more of the Dolan
Family Interests, becomes the ultimate Beneficial Owner, directly or
indirectly, of 50% or more of the voting power of the Voting Stock of the
Company;
|
|
(4)
|
|
the first day on which a majority of the members of the board
of directors of the Company are not Continuing Directors; or
|
|
(5)
|
|
the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into the Company, in
any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or exchanged for
cash, securities or other property, other than any such transaction where (a)
the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting, or
remains outstanding and constitutes, a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately after
giving effect to such issuance) and (b) immediately after such transaction, no
person or group (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more of the Dolan Family Interests, becomes,
directly or indirectly, the ultimate Beneficial Owner of 50% or more of the
voting power of the Voting Stock
|
6
|
|
|
of the surviving or transferee Person;
provided
that, following completion
of the offer to purchase Securities pursuant to Section 1015, any subsequent
change in the voting power of the Voting Stock of the surviving or
transferee Person Beneficially Owned by the person or group (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act) that
resulted in such earlier Change of Control shall not result in an additional
Change of Control.
|
Collateral Documents means, collectively, the security agreement and each of the other
agreements, instruments or documents that creates or purports to create a Lien for the benefit of
the secured parties named in the Credit Agreement.
Commission means the United States Securities and Exchange Commission and any successor thereto.
Common Stock means, with respect to any Person, any and all shares, interests and participations
(however designated and whether voting or non-voting) in such Persons common equity, whether now
outstanding or issued after the date of this Indenture, and includes, without limitation, all
series and classes of such common stock.
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. To the extent necessary to comply with
the requirements of the provisions of Trust Indenture Act Sections 310 through 317 as they are
applicable to the Company, the term Company shall include any other obligor with respect to the
Securities for the purposes of complying with such provisions.
Company Request or Company Order means a written request or order signed in the name of the
Company (a) by its Chairman, Chief Executive Officer, a Vice Chairman, its President or a Vice
President and (b) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary
and delivered to the Trustee;
provided
,
however
, that such written request or order may be signed
by any two of the officers or directors listed in clause (a) above in lieu of being signed by one
of such officers or directors listed in such clause (a) and one of the officers listed in clause
(b) above.
Consolidated Secured Leverage Ratio means, as of any date, the ratio of:
|
(1)
|
|
the sum of (i) the aggregate outstanding principal amount of
all Indebtedness of the Company and its Restricted Subsidiaries outstanding on
such date determined on a consolidated basis, but excluding all Interest Swap
Obligations and all Monetization Indebtedness, plus (ii) (but without
duplication of Indebtedness supported by letters of credit) the aggregate
undrawn face amount of all letters of credit outstanding on such date, in the
case of each of clauses (i) and (ii), to the extent secured by a Lien on any
assets of the Company or any Subsidiary thereof, to
|
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(2)
|
|
Annual Operating Cash Flow.
|
7
Continuing Directors means, as of any date of determination, any member of the board of directors
of the Company who:
|
(1)
|
|
was a member of such board of directors on the date of issuance
of the Securities; or
|
|
(2)
|
|
was nominated for election or elected to such board of
directors with the approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such nomination or election.
|
Corporate Trust Office means the office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office on the date hereof is located at 100
Wall Street, 16
th
Floor, New York, New York 10005.
corporation includes corporations, associations, partnerships, limited liability companies,
companies and business trusts.
Credit Agreement means that certain credit agreement, dated as of the date of this Indenture, by
and among the Company, certain of its Subsidiaries, JPMorgan Chase Bank, National Association, as
Administrative Agent, the other agents party thereto and the lenders party thereto from time to
time, as amended, modified, renewed, refunded, replaced, restated, restructured, increased,
substituted or refinanced in whole or in part from time to time, regardless of whether such
amendment, modification, renewal, refunding, replacement, restatement, restructuring, increase,
substitution or refinancing is with the same financial institutions or otherwise.
Credit Facilities means one or more debt or borrowing facilities (including, without limitation,
the Credit Agreement), commercial paper facilities or indentures, in each case with banks or other
institutional lenders or a trustee, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), letters of credit or issuances of
notes, in each case, as amended, modified, renewed, refunded, replaced, restated, restructured,
increased, substituted or refinanced in whole or in part from time to time, regardless of whether
such amendment, modification, renewal, refunding, replacement, restatement, restructuring,
increase, substitution or refinancing is with the same financial institutions or otherwise.
Cumulative Cash Flow Credit means the sum of:
|
(a)
|
|
cumulative Operating Cash Flow during the period commencing on
July 1, 2011 and ending on the last day of the most recent month preceding the
date of the proposed Restricted Payment for which financial information is
available or, if cumulative Operating Cash Flow for such period is negative,
minus the amount by which cumulative Operating Cash Flow is less than zero,
plus
|
8
|
(b)
|
|
the aggregate net proceeds received by the Company from the
issuance or sale (other than to the Company or a Restricted Subsidiary) of its
Capital Stock (other than Disqualified Stock) on or after July 1, 2011,
plus
|
|
(c)
|
|
the aggregate net proceeds received by the Company from the
issuance or sale (other than to the Company or a Restricted Subsidiary) of its
Capital Stock (other than Disqualified Stock) on or after July 1, 2011, upon
the conversion of, or exchange for, Indebtedness of the Company or any
Restricted Subsidiary or from the exercise of any options, warrants or other
rights to acquire Capital Stock of the Company.
|
For purposes of this definition, the net proceeds in property other than cash received by the
Company as contemplated by clauses (b) and (c) above shall be valued at the Fair Market Value
thereof as of the date of receipt by the Company.
Cumulative Interest Expense means, for the period commencing on July 1, 2011 and ending on the
last day of the most recent month preceding the proposed Restricted Payment for which financial
information is available, the aggregate of the interest expense of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, including
interest expense attributable to Capitalized Lease Obligations.
Debt with respect to any Person means, without duplication, any liability, whether or not
contingent:
|
(a)
|
|
in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements with respect thereto), but excluding reimbursement obligations under
any surety bond;
|
|
(b)
|
|
representing the balance deferred and unpaid of the purchase
price of any property (including pursuant to Capitalized Lease Obligations),
except any such balance that constitutes a trade payable;
|
|
(c)
|
|
under Swap Contracts (as defined in the Credit Agreement)
relating to interest rates entered into pursuant to the Credit Agreement or
with respect to Hedging Obligations;
|
|
(d)
|
|
under any other agreement related to the fixing of interest
rates on any Indebtedness, such as an interest swap, cap or collar agreement
(if and to the extent any of the foregoing would appear as a liability upon a
balance sheet of such Person prepared on a consolidated basis in accordance
with GAAP);
|
|
(e)
|
|
Guarantees of items of other Persons which would be included
within this definition for such other Persons, whether or not the Guarantee
would appear on such balance sheet; or
|
9
|
(f)
|
|
representing Disqualified Stock or Preferred Stock of a
Restricted Subsidiary that is not a Guarantor, valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued dividends.
|
Debt does not include:
|
(a)
|
|
any liability for federal, state, local or other taxes owed or
owing by such Person; or
|
|
(b)
|
|
any accounts payable or other liability for trade credit,
including Guarantees thereof or instruments evidencing such liabilities.
|
Default means any event that is, or after notice or passage of time or both would be, an Event of
Default.
Deferred Carriage Fee Amortization means the amount identified in the Companys consolidated
statement of cash flows on the line identified as Amortization of Deferred Carriage Fees and
determined in accordance with GAAP.
Depository means, with respect to the Securities issued in the form of one or more Book-Entry
Securities, The Depository Trust Company or another Person designated as Depository by the Company,
which must be a clearing agency registered under the Exchange Act.
Disqualified Stock means any Capital Stock of the Company or any Restricted Subsidiary which, by
its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in
whole or in part, on or prior to the maturity date of the Securities.
Distribution Agreement means the Distribution Agreement dated as of June 6, 2011, between the
Company and CSC Holdings, LLC, relating to,
inter alia
, the contribution of the Programming Network
Business to the Company.
Distribution Transaction means (i) the contribution to the Company of the Programming Network
Business from CSC Holdings, LLC in exchange for the issuance or transfer to CSC Holdings, LLC of
common stock of the Company, the notes and loans under the Credit Agreement, (ii) the distribution
by CSC Holdings, LLC of the Companys common stock to Cablevision, and (iii) the distribution by
Cablevision of the Companys common stock to the common shareholders of Cablevision, in each case
pursuant to the Distribution Agreement.
Dolan Family Interests means (i) any Dolan Family Member, (ii) any trusts for the benefit of any
Dolan Family Members, (iii) any estate or testamentary trust of any Dolan Family Member for the
benefit of any Dolan Family Members, (iv) any executor, administrator, conservator or legal or
personal representative of any Person or Persons specified in clauses (i), (ii) and (iii) above to
the extent acting in such capacity on behalf of any Dolan Family Member or Members and not
individually, (v) any corporation, partnership, limited liability company or other similar entity,
in each case 80% of which is owned and controlled by any of the foregoing
10
or combination of the foregoing, and (vi) The Dolan Family Foundation, a New York not-for-profit
corporation.
Dolan Family Members means Charles F. Dolan, his spouse, his descendants and any spouse of any of
such descendants.
Domestic Subsidiary means any Restricted Subsidiary other than a Restricted Subsidiary that is
(i) a controlled foreign corporation under Section 957 of the Internal Revenue Code of 1986, as
amended (other than any such entity that Guarantees Indebtedness of the Company or of any of its
other Domestic Subsidiaries), or (ii) a Subsidiary of an entity described in the preceding clause
(i).
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital
Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital
Stock).
Event of Default has the meaning specified in Article Five.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Offer means the offer by the Company to the Holders of the Initial Securities or any
Additional Securities to exchange all of the Initial Securities or such Additional Securities, as
the case may be, for Exchange Securities, as provided for in the Registration Rights Agreement.
Exchange Offer Registration Statement means the Exchange Offer Registration Statement as defined
in the Registration Rights Agreement.
Exchange Securities has the meaning specified in the first recital of this Indenture and refers
to any Securities containing terms substantially identical to the Initial Securities and Additional
Securities (except that (a) such Exchange Securities shall not contain terms with respect to
transfer restrictions and shall be registered under the Securities Act, and (b) certain provisions
relating to an increase in the stated rate of interest thereon shall be eliminated) that are issued
and exchanged for the Initial Securities or Additional Securities in accordance with the Exchange
Offer, as provided for in the Registration Rights Agreement and this Indenture.
Existing Indebtedness means the aggregate principal amount of Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence on the date of this
Indenture after giving effect to the application of the proceeds of (i) the Securities and (ii) any
borrowings made under the Credit Agreement on the date of this Indenture.
Fair Market Value means the price that would be paid in an arms length transaction between an
informed and willing seller under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined, unless otherwise specified, in good faith by the board of
directors or senior management, whose determination in all cases shall be conclusive.
11
Generally Accepted Accounting Principles or GAAP means U.S. generally accepted accounting
principles, as in effect on the date of determination, consistently applied.
Global Security means one or more Securities evidencing all or a part of the Securities to be
issued as Book-Entry Securities, issued to the Depository in accordance with Section 303 and
bearing the legend prescribed in Section 206 and, in the case of a Restricted Security, the legend
prescribed in Section 205.
Guarantee means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another
Person.
Guarantors means:
|
(1)
|
|
each direct or indirect Domestic Subsidiary on the date of this
Indenture, other than any Insignificant Subsidiary; and
|
|
(2)
|
|
any other Subsidiary that executes a Note Guarantee in
accordance with the provisions of this Indenture;
|
and their respective successors and assigns until released from their obligations under their Note
Guarantees and this Indenture in accordance with the terms of this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such Person
under:
|
(1)
|
|
interest rate swap agreements, interest rate cap agreements,
interest rate collar agreements and other agreements or arrangements with
respect to interest rates;
|
|
(2)
|
|
commodity swap agreements, commodity option agreements, forward
contracts and other agreements or arrangements with respect to commodity
prices; and
|
|
(3)
|
|
foreign exchange contracts, currency swap agreements and other
agreements or arrangements with respect to foreign currency exchange rates.
|
Holder means a Person in whose name a Security is registered in the Security Register.
Indebtedness with respect to any Person means the Debt of such Person;
provided
that, for
purposes of the definition of
Indebtedness
(including the term
Debt
to the extent incorporated
in such definition) and for purposes of the definition of
Event of Default
, the term
Guarantee
shall not be interpreted to extend to a Guarantee under which recourse is limited to the Capital
Stock of an entity that is not a Restricted Subsidiary.
12
Indenture means this instrument as originally executed (including all exhibits and schedules
hereto) and 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.
Initial Interest Payment Date has the meaning specified in Section 301.
Initial Securities has the meaning specified in the recitals to this Indenture.
Insignificant Subsidiary means any Subsidiary designated by the Company as an Insignificant
Subsidiary;
provided
that the total assets of all Subsidiaries that are so designated do not in
the aggregate at any time exceed 3% of the assets of the Company and its consolidated Subsidiaries
as reflected on the Companys most recent consolidating balance sheet prepared in accordance with
GAAP.
Interest Payment Date means the Stated Maturity of an installment of interest on the Securities.
Interest Swap Obligations means, with respect to any Person, the obligations of such Person
pursuant to any arrangement with any other Person whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the same notional amount.
Investment means any advance, loan, account receivable (other than an account receivable arising
in the ordinary course of business or owing to the Company or any Restricted Subsidiary from any
Unrestricted Subsidiary for management or other services or other overhead or shared expenses
allocated in the ordinary course of business provided by the Company or any Restricted Subsidiary
to such Unrestricted Subsidiary), or other extension of credit (excluding, however, accrued and
unpaid interest in respect of any advance, loan or other extension of credit) or any capital
contribution to (by means of transfers of property to others, payments for property or services for
the account or use of others, or otherwise), any purchase or ownership of any stock, bonds, notes,
debentures or other securities (including, without limitation, any interests in any limited
liability company, partnership, joint venture or any similar enterprise) of, or any bank accounts
with or Guarantee of any Indebtedness or other obligations of, any Unrestricted Subsidiary or
Affiliate that is not a Subsidiary;
provided
that (a) the term
Investment
shall not include any
transaction that would otherwise constitute an Investment of the Company or a Subsidiary to the
extent that the consideration provided by the Company or such Subsidiary in connection therewith
consists of Capital Stock of the Company (other than Disqualified Stock) and (b) the term
Guarantee
shall not be interpreted to extend to a guarantee under which recourse is limited to
the Capital Stock of an entity that is not a Restricted Subsidiary.
Investment Grade Rating means (1) a rating of BBB- or better, in the case of S&P (or its
equivalent under any successor Rating Categories of S&P) and a rating of Baa3 or better, in the
case of Moodys (or its equivalent under any successor Rating Categories of Moodys), or (2) in
each case, if a Rating Agency in the foregoing clause (1) ceases to rate the
13
Securities for reasons outside the control of the Company, an equivalent Rating Category of any
other Rating Agency.
Lease means any capital lease, operating lease, equipment lease, real property lease or other
lease.
Lien means any lien, security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature of a security interest
and any agreement to give any security interest). A Person shall be deemed to own subject to a
Lien any property which such Person has acquired or holds subject to the interest of a vendor or
lessor under a conditional sale agreement, capital lease or other title retention agreement.
Liquidated Damages means all liquidated damages then owing pursuant to Section 4 of the
Registration Rights Agreement, or, in the case of Additional Securities, the applicable section of
the registration rights agreement entered into with respect to those Additional Securities.
Material Subsidiary means a Subsidiary (or Subsidiaries which together constitute a Material
Subsidiary) that meets any of the following conditions:
|
(a)
|
|
the consolidated total assets of the Subsidiary exceeds 10% of
the total assets of the Company and its Subsidiaries on a consolidated basis as
of the end of the most recently completed fiscal year, or
|
|
(b)
|
|
the consolidated revenues of the Subsidiary exceed 10% of the
revenues of the Company and its Subsidiaries on a consolidated basis for the
most recently completed fiscal year.
|
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, by
declaration of acceleration or otherwise.
Monetization Indebtedness means any Indebtedness of the Company or any Restricted Subsidiary
thereof issued in connection with a Monetization Transaction;
provided
that, (i) on the date of its
incurrence, the purchase price or principal amount of such Monetization Indebtedness does not
exceed the Fair Market Value of the securities that are the subject of such Monetization
Transaction on such date and (ii) the obligations of the Company and its Restricted Subsidiaries
with respect to the purchase price or principal amount of such Monetization Indebtedness (x) may be
satisfied in full by delivery of the securities that are the subject of such Monetization
Transaction and any related options on such securities or any proceeds received by the Company or
any Restricted Subsidiary thereof on account of such options;
provided
that if the Company or such
Restricted Subsidiary no longer owns sufficient securities that were the subject of such
Monetization Transaction and/or related options on such securities to satisfy in full the
obligations of the Company and its Restricted Subsidiaries under such Monetization Indebtedness,
such Indebtedness shall no longer be deemed to be Monetization Indebtedness, and (y) are not
secured by any Liens on any of the Companys or its Restricted Subsidiaries assets
14
other than the securities that are the subject of such Monetization Transaction and the related
options on such securities.
Monetization Transaction means a transaction pursuant to which (i) securities received pursuant
to an Asset Sale are sold, transferred or otherwise conveyed (including by way of a forward
purchase agreement, prepaid forward sale agreement, secured borrowing or similar agreement) within
180 days of such Asset Sale and (ii) the Company receives (including by way of borrowing under
Monetization Indebtedness) not less than 75% of the Fair Market Value of such securities in the
form of cash.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Debt means, as to the Company and its Restricted Subsidiaries as at any date of
determination, the aggregate amount of all Indebtedness of the Company and its Restricted
Subsidiaries, less the aggregate amount of Qualified Cash of the Company and its Restricted
Subsidiaries as of such date in an aggregate amount not to exceed 33% of Operating Cash Flow for
the period of four consecutive fiscal quarters covered by the then most recent report furnished or
deemed furnished to the Trustee and the Holders of Securities under Section 703.
Net Proceeds means the aggregate cash proceeds, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not the interest component, thereof)
received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting, investment banking and brokerage
fees, and sales commissions, and any relocation expenses incurred as a result thereof, (2) taxes
paid or payable as a result thereof, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (3) amounts required to be applied to the
repayment of Indebtedness or other liabilities, secured by a Lien on the asset or assets that were
the subject of such Asset Sale, or is required to be paid as a result of such sale, (4) any reserve
for adjustment in respect of the sale price of such asset or assets established in accordance with
GAAP and (5) appropriate amounts to be provided by the Company or its Restricted Subsidiaries as a
reserve against liabilities associated with such Asset Sale, including, without limitation, pension
and other post employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale, all as
determined in accordance with GAAP.
Note Guarantee means a Guarantee of the Securities pursuant to this Indenture.
Offer Amount has the meaning specified in Section 1108.
Offer Period has the meaning specified in Section 1108.
Offering Memorandum means the final offering memorandum, dated June 22, 2011, relating to the
sale of the Initial Securities.
15
Officers Certificate means a certificate signed by (a) the Chairman, Chief Executive Officer, a
Vice Chairman, the President, a Vice President or the Treasurer of the Company and (b) the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee;
provided
,
however
,
that such certificate may be signed by two of the officers or directors listed in clause (a) above
in lieu of being signed by one of such officers or directors listed in such clause (a) and one of
the officers listed in clause (b) above.
Operating Cash Flow means, for any period, the following for the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP: (a)
aggregate operating revenues minus (b) aggregate operating expenses (including technical,
programming, sales, selling, general and administrative expenses and salaries and other
compensation, in each case net of amounts allocated to Affiliates, but excluding depreciation and
amortization (but, for the avoidance of doubt, depreciation and amortization shall not include the
amortization of programming expenses (films, series, shows and other content), which is treated as
an operating expense), charges and credits relating to employee stock plans, and restructuring
charges and credits and, to the extent otherwise included in operating expenses, any losses
resulting from a write-off or write-down of Investments by the Company or any Restricted Subsidiary
in Affiliates), plus (c), without duplication, Deferred Carriage Fee Amortization;
provided
,
however
, that for purposes of determining Operating Cash Flow for any period (A) there shall be
excluded all management fees paid to the Company or any Restricted Subsidiary during such period by
any Unrestricted Subsidiary other than any such amounts settled in cash to the extent not in excess
of 5% of Operating Cash Flow for the Company and its Restricted Subsidiaries as determined without
including any such fees, (B) there shall be excluded operating expenses in connection with the
Distribution Transaction in an amount not to exceed $5.0 million in the aggregate, (C) the amount
of Operating Cash Flow attributable to any non-wholly owned Restricted Subsidiary shall be included
only to the extent of the Companys direct or indirect economic interest in the Equity Interests of
such non-wholly owned Restricted Subsidiary;
provided
, that the amount of Operating Cash Flow
attributable to all non-wholly owned Restricted Subsidiaries shall in no event exceed 10% of the
total Operating Cash Flow for such period, and (D) Operating Cash Flow for such period shall be
increased or reduced, as the case may be, by the Operating Cash Flow of assets or businesses
acquired or disposed of (
provided
that in each case it has an impact on Annual Operating Cash Flow
of at least $1.0 million) (including by means of any redesignation of any Subsidiary pursuant to
Section 1012) by the Company or any Restricted Subsidiary on or after the first day of such period,
determined on a pro forma basis (it being agreed that such pro forma calculations may be based upon
GAAP as applied in the preparation of the financial statements for the Company, delivered in
accordance with Section 703 rather than as applied in the financial statements of the entity whose
assets were acquired and may include, in the Companys discretion, a reasonable estimate of savings
resulting from any such acquisition or disposition (1) that have been realized, (2) for which the
steps necessary for realization have been taken, or (3) for which the steps necessary for
realization are reasonably expected to be taken within 12 months of the date of such acquisition or
disposition), as though the Company or such Restricted Subsidiary acquired or disposed of such
assets on the first day of such period. For purposes of this definition, operating revenues and
operating expenses shall exclude any non-recurring, non-cash items in excess of $2,500,000.
Operating Cash Flow may also be adjusted to normalize an acceleration of programming expenses
(films, series, shows and other content) required to be recognized in accordance with GAAP when the
programs useful life is shortened or otherwise changed from
16
the originally projected useful life. Furthermore, to the extent the programs are abandoned
and, to the extent that the amortization of such programming expenses are, in accordance with GAAP,
required to be accelerated into the year of such impairment, the Company may treat such costs as
being amortized over a period equal to the original projected useful life. In the event of any
suspension of carriage by any party to an Affiliation Agreement during renewal negotiations of such
Affiliation Agreement or upon the expiration or termination of, or during disputes under, such
Affiliation Agreement, the Operating Cash Flow calculation (except for the purposes of (i)
calculating Cumulative Cash Flow Credit and (ii) calculating the Cash Flow Ratio in clause (21) of
the definition of Permitted Investments) may be adjusted (the Carriage Suspension Adjustment) to
include the Operating Cash Flow attributable to the affected Affiliation Agreement from the
corresponding period one year prior to each period during which such suspension of carriage
continues, but in any event not to exceed three months, provided that the Carriage Suspension
Adjustment shall be limited only to the Operating Cash Flow attributable to one Affiliation
Agreement during any three-month period being tested.
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Company.
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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(a)
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Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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(b)
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Securities, or portions thereof, for whose payment or purchase
money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; and
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(c)
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Securities paid pursuant to Section 306, Securities in exchange
for which, 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 the
Securities are valid obligations of the Company;
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provided
,
however
, that, in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, direction, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities, or any Affiliate of the
Company, or 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,
direction, consent or waiver, only Securities which a Responsible Officer of the Trustee actually
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 pledgees right so to act with respect to such Securities and that the
17
pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or interest on
any Securities on behalf of the Company.
Permitted Additional Secured Obligations means obligations under any other Indebtedness (other
than subordinated Indebtedness), including, without limitation, under any Credit Facility, secured
by Liens;
provided
that immediately after giving effect to the incurrence of such obligations, the
Consolidated Secured Leverage Ratio of the Company and its Restricted Subsidiaries would be less
than or equal to 4.75 to 1.0.
Permitted Affiliate Payments means (a) payments under equity and other compensation
incentive programs to employees and directors of the Company or any of its current or former
Affiliates in the ordinary course of business;
provided
that, in the case of employees or directors
of former Affiliates, such payments relate to awards granted prior to the consummation of the
Distribution Transaction, and (b) payments due and payable under the Distribution Transaction
Agreements (as defined in the Credit Agreement).
Permitted Business means any business conducted or proposed to be conducted (as described in the
Offering Memorandum) by the Company and its Restricted Subsidiaries on the date of this Indenture
and other businesses reasonably related or ancillary thereto.
Permitted Debt has the meaning specified in Section 1007.
Permitted Investments means:
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(1)
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any Investment in the Company or in a Restricted Subsidiary;
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(2)
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any Investment in cash, Cash Equivalents or marketable
securities;
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(3)
|
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any Investment by the Company or any Restricted Subsidiary in a
Person, if as a result of such Investment:
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(a)
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such Person becomes a Restricted Subsidiary; or
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(b)
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such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a Restricted
Subsidiary;
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(4)
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any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 1014;
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(5)
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Investments to the extent financed with Equity Interests (other
than Disqualified Stock) of the Company;
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18
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(6)
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Hedging Obligations that are incurred for the purpose of
fixing, hedging or swapping interest rate, commodity price or foreign currency
exchange rate risk (or to reverse or amend any such agreements previously made
for such purposes), and not for speculative purposes, and that do not increase
the Indebtedness of the obligor outstanding at any time other than as a result
of fluctuations in interest rates, commodity prices or foreign currency
exchange rates or by reason of fees, indemnities and compensation payable
thereunder;
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(7)
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any Investments received in satisfaction of judgments or in
settlement of debt or compromises of obligations incurred in the ordinary
course of business, including pursuant to any plan of reorganization or similar
arrangement upon bankruptcy or insolvency;
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(8)
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any Investments received as a result of a foreclosure by the
Company or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in
default;
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(9)
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advances to customers or suppliers in the ordinary course of
business that are recorded in accordance with GAAP as accounts receivable or
prepaid expenses or lease, utility or other similar deposits in the ordinary
course of business;
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(10)
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advances of payroll payments to employees in the ordinary
course of business;
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(11)
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Investments consisting of the licensing or contribution of
intellectual property in the ordinary course of business;
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(12)
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Investments existing on the date of this Indenture and any
modification, replacement, renewal or extension thereof; provided, that the
amount of the Investment outstanding on the date of this Indenture is not
increased except pursuant to the terms of such Investment (in existence on the
date of this Indenture) or is otherwise a Permitted Investment pursuant to a
separate clause of this definition;
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(13)
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receivables owing to the Company or any of its Restricted
Subsidiaries, including receivables from and advances to suppliers, if created,
acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
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(14)
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loans and advances to officers, directors, employees,
consultants and members of management (including for travel, entertainment,
relocation and analogous business expenses) in an aggregate amount not to
exceed $5.0 million at any time outstanding; provided that such loans and
advances shall comply with all applicable laws;
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19
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(15)
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Investments (including debt obligations) (i) received in
connection with the bankruptcy and reorganization of suppliers and customers in
settlement of delinquent obligations of, and (ii) received in connection with
the settlement of other disputes with customers and suppliers;
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(16)
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Investments consisting of extensions of credit or endorsements
for collection or deposit in the ordinary course of business;
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(17)
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Guarantees of leases of the Company or any of its Restricted
Subsidiaries entered into in the ordinary course of business;
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(18)
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Investments in one or more Unrestricted Subsidiaries or joint
ventures having an aggregate Fair Market Value that do not exceed $100.0
million at any one time outstanding (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
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(19)
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to the extent that they constitute Investments, Indebtedness,
Liens or Restricted Payments permitted to be incurred under this Indenture;
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(20)
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Permitted Affiliate Payments;
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(21)
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other Investments provided that the Cash Flow Ratio shall be
less than or equal to 4.75 to 1.0 on a pro forma basis after giving effect to
such Investment; or
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(22)
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other Investments having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (22), that do
not exceed $100.0 million at any one time outstanding (with the Fair Market
Value of each Investment being measured at the time made and without giving
effect to subsequent changes in value).
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Permitted Liens means the following types of Liens:
|
(1)
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Liens existing on the issuance date of the Securities;
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(2)
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Liens on shares of the Capital Stock of an entity that is not a
Restricted Subsidiary;
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(3)
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Liens securing Monetization Indebtedness;
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(4)
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Liens on Receivables and Related Assets (and proceeds thereof)
securing only Indebtedness otherwise permitted to be incurred by a
Securitization Subsidiary;
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(5)
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Liens securing obligations under any Credit Facilities in an
amount not to exceed $2,225.0 million;
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20
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(6)
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Liens granted in favor of the Company or any Restricted
Subsidiary;
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(7)
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Liens securing Permitted Additional Secured Obligations;
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(8)
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Liens securing the Securities;
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(9)
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Liens on property or assets of a Person existing at the time
such Person is merged with or into or consolidated with the Company or any
Restricted Subsidiary;
provided
that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any
properties or assets other than those of the Person merged into or consolidated
with the Company or the Restricted Subsidiary;
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(10)
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Liens on property or assets existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary,
provided
that such Liens
were in existence prior to the contemplation of such transaction and do not
extend to any properties or assets other than those so acquired by the Company
or the Restricted Subsidiary;
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(11)
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Liens on property or assets used to defease Indebtedness that
was not incurred in violation of this Indenture;
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(12)
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Liens securing Hedging Obligations or
margin stock
, as
defined in Regulations G and U of the Board of Governors of the Federal Reserve
System;
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(13)
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Liens on cash or Cash Equivalents securing Hedging Obligations
of the Company or any of its Restricted Subsidiaries that do not constitute
Indebtedness or securing letters of credit that support such Hedging
Obligations;
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(14)
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Liens imposed by law, such as statutory Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
like liens arising in the ordinary course of business of the Company or any
Restricted Subsidiary and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings;
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(15)
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Liens for taxes, assessments, government charges or claims not
yet delinquent or that are being contested in good faith by appropriate
proceedings;
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(16)
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survey exceptions, encumbrances, easements or reservations of,
or rights of others for rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or other restrictions or
encumbrances as to the use of real properties or Liens incidental to the
conduct of the business of the Company or any of its Restricted Subsidiaries or
to the ownership of its properties which do not in the aggregate materially
impair
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21
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their use in the ordinary operation of the business of the Company or any of
its Restricted Subsidiaries;
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(17)
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any zoning, building or similar laws or rights reserved to or
vested in any governmental authority;
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(18)
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Liens arising by reason of any judgment, decree or order of any
court, arbitral tribunal or similar entity so long as any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order have not been finally terminated or the period within which
such proceedings may be initiated has not expired or Liens arising out of
judgments or awards not constituting an Event of Default;
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(19)
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Liens (a) incurred or deposits made in connection with workers
compensation, unemployment insurance and other types of social security or
similar legislation or (b) incurred in the ordinary course of business securing
insurance premiums or reimbursement obligations under insurance policies
related to the items specified in the foregoing clause (a), or (c) obligations
in respect of letters of credit or bank guarantees that have been posted by
such Person to support the payment of the items set forth in clauses (a) and
(b) of this clause (19);
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(20)
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Liens consisting of pledges or deposits of cash or securities
made by such Person as a condition to obtaining or maintaining any licenses
issued to it by, or to satisfy other similar requirements of, any applicable
governmental authority;
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(21)
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(a) deposits made to secure the performance of bids, tenders,
contracts (other than for borrowed money) or Leases to which the Company or any
of its Restricted Subsidiaries is a party, (b) deposits to secure public or
statutory obligations of the Company or any of its Restricted Subsidiaries,
surety and appeal bonds, performance bonds and other obligations of a like
nature, (c) deposits as security for contested taxes or import duties or for
the payment of rent, and (d) obligations in respect of letters of credit or
bank guarantees that have been posted by the Company or any of its Restricted
Subsidiaries to support the payment of items set forth in clauses (a) and (b)
of this clause (21);
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(22)
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Liens arising from precautionary UCC financing statements (or
similar filings under applicable law) regarding leases entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business, operating leases or consignments;
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(23)
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Liens arising in the ordinary course of business by virtue of
any contractual, statutory or common law provision relating to bankers Liens,
rights of set-off or similar rights and remedies covering deposit or securities
accounts (including funds or other assets credited thereto and
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22
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pooling and netting arrangements) or other funds maintained with a
depository institution or securities intermediary;
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(24)
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any interest or title of a lessor, licensor or sublicensor in
the property subject to any lease, license or sublicense and the rights
reserved or vested in any other Person by the terms of any lease, license,
franchise, grant or permit held by such Person or by a statutory provision to
terminate any such lease, license, franchise, grant or permit or to require
periodic payments as a condition to the continuance thereof;
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(25)
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purchase money mortgages or other purchase money liens
(including, without limitation, any Capitalized Lease Obligations) upon any
fixed or capital assets acquired after the issuance date of the Securities, or
purchase money mortgages (including, without limitation, Capitalized Lease
Obligations) on any such assets hereafter acquired or existing at the time of
acquisition of such assets, whether or not assumed, so long as (i) such
mortgage or lien does not extend to or cover any other asset of the Company or
any Restricted Subsidiary and (ii) such mortgage or lien secures the obligation
to pay the purchase price of such asset, interest thereon and other charges
incurred in connection therewith (or the obligation under such Capitalized
Lease Obligation) only;
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(26)
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Liens to secure Indebtedness (including Capitalized Lease
Obligations) permitted by clause (4) of Section 1007(b) covering only the
assets acquired with such Indebtedness;
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(27)
|
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Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
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(28)
|
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Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements of the Company
or any of its Restricted Subsidiaries, including rights of offset and set-off;
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(29)
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Liens created in the ordinary course of business and customary
in the relevant industry with respect to the creation of content, and the
components thereof, securing the obligations of any of the Company and its
Restricted Subsidiaries owing in respect of compensation or other payments owed
for services rendered by creative or other personnel that do not constitute
Indebtedness; provided that any such Lien shall attach solely to the content,
or applicable component thereof, that are subject to the arrangements giving
rise to the underlying obligation;
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(30)
|
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assignments of insurance or condemnation proceeds provided to
landlords (or their mortgagees) pursuant to the terms of any lease and Liens or
rights
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23
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reserved in any lease for rent or for compliance with the terms of such
lease;
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(31)
|
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Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods in the ordinary course of business;
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(32)
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Liens on Equity Interests in any Unrestricted Subsidiary or
joint venture held by the Company or any Restricted Subsidiary;
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(33)
|
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Liens (a) on advances of cash or Cash Equivalents in favor of
the seller of any property to be acquired in an Investment permitted under this
Indenture to be applied against the purchase price for such Investment or (b)
consisting of an agreement to dispose of any property in an Asset Sale that was
made pursuant to and in compliance with Section 1014, in each case, solely to
the extent such Investment or Asset Sale, as the case may be, would have been
permitted on the date of the creation of such Lien;
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(34)
|
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restrictions on transfers of securities imposed by applicable
securities laws;
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(35)
|
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Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by such
Person in the ordinary course of business;
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(36)
|
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any extension, renewal or replacement, in whole or in part, of
any Lien described in the immediately preceding clauses;
provided
that any such
extension, renewal or replacement is no more restrictive in any material
respect than the Lien so extended, renewed or replaced and does not extend to
any additional property or assets; or
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(37)
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Additional Liens with respect to obligations that do not exceed
$20.0 million at any one time outstanding.
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Permitted Refinancing Indebtedness means:
|
(A)
|
|
any Indebtedness of the Company or any of its Restricted
Subsidiaries (other than Disqualified Stock) issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than Disqualified Stock and intercompany Indebtedness);
provided
that:
|
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(1)
|
|
the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount (or accreted value, if applicable) of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued and unpaid interest thereon and the amount
of any
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24
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|
|
reasonable premium necessary to accomplish such refinancing and such
reasonable expenses incurred in connection therewith);
|
|
|
(2)
|
|
such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
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(3)
|
|
if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of
payment to the Securities or the Note Guarantees, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the
Securities on terms at least as favorable, taken as a whole in all
material respects, to the Holders of Securities as those contained in
the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
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(4)
|
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if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is
pari passu
in right of
payment with the Securities or any Note Guarantees, such Permitted
Refinancing Indebtedness is
pari passu
with, or subordinated in right
of payment to, the Securities or the Note Guarantees; and
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(5)
|
|
such Indebtedness is incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
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(B)
|
|
any Disqualified Stock of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace or refund Indebtedness or other Disqualified
Stock of the Company or any of its Restricted Subsidiaries (other than
Indebtedness or Disqualified Stock held by the Company or any of its Restricted
Subsidiaries);
provided
that:
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(1)
|
|
the liquidation or face value of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness, or the liquidation
or face value of the Disqualified Stock, as applicable, so extended,
refinanced, renewed, replaced or refunded (plus all accrued and unpaid
interest or dividends thereon and the amount of any reasonable premium
necessary to accomplish such refinancing and such reasonable expenses
incurred in connection therewith);
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(2)
|
|
such Permitted Refinancing Indebtedness has a
final redemption date later than the final maturity or redemption date
of, and has a
|
25
|
|
|
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness or
Disqualified Stock being extended, refinanced, renewed, replaced or
refunded;
|
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(3)
|
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such Permitted Refinancing Indebtedness has a
final redemption date later than the final maturity date of, and is
subordinated in right of payment to, the Securities on terms at least
as favorable, taken as a whole in all material respects, to the Holders
of Securities as those contained in the documentation governing the
Indebtedness or Disqualified Stock being extended, refinanced, renewed,
replaced or refunded;
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(4)
|
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such Permitted Refinancing Indebtedness is not
redeemable at the option of the Holder thereof or mandatorily
redeemable prior to the final maturity or redemption date of the
Indebtedness or Disqualified Stock being extended, refinanced, renewed,
replaced or refunded; and
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(5)
|
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such Disqualified Stock is issued either by the
Company or by the Restricted Subsidiary who is the issuer of the
Indebtedness or Disqualified Stock being extended, refinanced, renewed,
replaced or refunded.
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Person means any individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Physical Security has the meaning specified in Section 303.
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 a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Security.
Preferred Stock means, with respect to any Person, any and all shares, interests, participations
or other equivalents (however designated) of such Persons preferred or preference stock, whether
now outstanding or issued after the date of this Indenture, and includes, without limitation, all
classes and series of preferred or preference stock.
Programming Network Business means (i) the programming businesses conducted by the Company and
its Restricted Subsidiaries as of the date of this Indenture and which collectively consist of the
programming networks currently known as AMC, IFC, Sundance Channel and WEtv and (ii) the other
programming and related assets contributed to the Company pursuant to the Distribution Agreement.
Purchase Date has the meaning specified in Section 1108.
26
Qualified Cash means, of any Person, all cash and Cash Equivalents of such Person in deposit or
securities accounts in which the Collateral Agent (as defined in the Credit Agreement) has
control pursuant to and within the meaning of Section 9-104 and/or 9-106 of the UCC pursuant to
the terms and conditions set forth in the Security Agreement (as defined in the Credit Agreement)
or any other Collateral Document.
Qualified Equity Offering means (i) an offer and sale of Equity Interests (other than
Disqualified Stock) of the Company pursuant to a registration statement that has been declared
effective by the Commission pursuant to the Securities Act (other than a registration statement on
Form S-8 or otherwise relating to equity securities issuable under any employee benefit plan of the
Company) or (ii) any private placement of Equity Interests (other than Disqualified Stock) of the
Company to any Person other than a Subsidiary.
Qualified Institutional Buyer or QIB shall have the meaning specified in Rule 144A under the
Securities Act.
Rating Agency means (1) each of S&P and Moodys and (2) if S&P or Moodys ceases to rate the
Securities for reasons outside the control of the Company, a nationally recognized statistical
rating organization within the meaning of Rule 15c-3-1(c)(vi)(F) under the Exchange Act selected
by the Company, which shall be substituted for S&P or Moodys, as the case may be.
Rating Category means (1) with respect to S&P, any of the following categories (any of which may
include a + or at the end thereof): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent
successor categories), (2) with respect to Moodys, any of the following categories any of which
may include a 1, 2 or 3 at the end thereof: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or
equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moodys
used by another Rating Agency, if applicable.
Receivables and Related Assets means:
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(a)
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|
accounts receivable, instruments, chattel paper, obligations,
general intangibles, equipment and other similar assets, including interests in
merchandise or goods, the sale or lease of which gives rise to the foregoing,
related contractual rights, Guarantees, insurance proceeds, collections and
other related assets;
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(d)
|
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proceeds of all of the above.
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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 has the meaning specified in Section 1107.
27
Registration Rights Agreement means (1) with respect to the Initial Securities, the
Registration Rights Agreement, dated as of the date of this Indenture, among the Company, the
Guarantors and the initial purchasers of the Initial Securities, and (2) with respect to any
Additional Securities, any registration rights agreement among the Company and the other parties
thereto relating to the registration by the Company of such Additional Securities under the
Securities Act.
Regular Record Date for the interest payable on any Interest Payment Date means the January 1 or
July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment
Date.
Regulation S Global Security has the meaning specified in Section 303.
Replacement Assets means any combination of (i) non-current assets that shall be used or useful
in a Permitted Business or (ii) all or substantially all the assets of a Permitted Business or a
majority of the Voting Stock of any Person engaged in a Permitted Business (including by means of a
merger, consolidation or other business combination permitted under this Indenture) that shall
become on the date of acquisition thereof a Restricted Subsidiary.
Repurchase Offer has the meaning specified in Section 1108.
Responsible Officer, when used with respect to the Trustee, means any vice president, any
assistant vice president, any trust officer or assistant trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated
officers or assigned by the Trustee to administer corporate trust matters and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Restricted Investment means any Investment other than a Permitted Investment.
Restricted Payment means:
|
(a)
|
|
any Stock Payment by the Company or a Restricted Subsidiary;
|
|
(b)
|
|
any direct or indirect payment by the Company or a Restricted
Subsidiary to redeem, purchase, defease or otherwise acquire or retire for
value, prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness of the Company that is subordinate in
right of payment to the Securities;
provided
,
however
, that any direct or
indirect payment by the Company or a Restricted Subsidiary to redeem, purchase,
defease or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company that is subordinate in right of payment to the
Securities shall not be a Restricted Payment if either (i) after giving effect
thereto, the ratio of the Senior Indebtedness of the Company and its Restricted
Subsidiaries to Annual Operating Cash Flow is less than or equal to 5.0 to 1.0
or (ii) such subordinate Indebtedness is redeemed, purchased, defeased or
otherwise acquired or retired in exchange for, or
|
28
|
|
|
out of, (x) the proceeds of a sale (within one year before or 180 days after
such redemption, purchase, defeasance, acquisition or retirement) of
Permitted Refinancing Indebtedness or Capital Stock of the Company or
warrants, rights or options to acquire Capital Stock of the Company or (y)
any source of funds other than the incurrence of Indebtedness (it being
understood that the use of such funds to repay Indebtedness that is later
reborrowed to redeem, purchase, defease or otherwise acquire or retire the
subordinate Indebtedness shall be considered a source of funds other than
the incurrence of Indebtedness);
|
|
(c)
|
|
any direct or indirect payment by the Company or a Restricted
Subsidiary to redeem, purchase, defease or otherwise acquire or retire for
value any Disqualified Stock at its mandatory redemption date or other maturity
date if and to the extent that Indebtedness is incurred to finance such
redemption, purchase, defeasance or other acquisition or retirement; or
|
|
(d)
|
|
any Restricted Investment.
|
Notwithstanding the foregoing, Restricted Payments shall not include (a) payments by any
Restricted Subsidiary to the Company or any other Restricted Subsidiary or (b) any Permitted
Investment or designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted under
Section 1012.
Restricted Security has the meaning specified in Section 205.
Restricted Subsidiary means any Subsidiary, whether existing on the date of this Indenture or
created subsequent thereto, designated from time to time by the Company as a Restricted
Subsidiary;
provided
,
however
, that no Subsidiary that is not a Securitization Subsidiary can be
or remain so designated unless (a) at least 67% of each of the total equity interest and the voting
control of such Subsidiary is owned, directly or indirectly, by the Company or another Restricted
Subsidiary and (b) such Subsidiary is not restricted, pursuant to the terms of any loan agreement,
note, indenture or other evidence of indebtedness, from
|
(i)
|
|
paying dividends or making any distribution on such
Subsidiarys Capital Stock or other equity securities or paying any
Indebtedness owed to the Company or to any Restricted Subsidiary;
|
|
(ii)
|
|
making any loans or advances to the Company or any Restricted
Subsidiary; or
|
|
(iii)
|
|
transferring any of its properties or assets to the Company or
any Restricted Subsidiary
|
(it being understood that a financial covenant any of the components of which are directly impacted
by the taking of the action (e.g., the payment of a dividend) itself (such as a minimum net worth
test) would be deemed to be a restriction on the foregoing actions, while a financial covenant none
of the components of which is directly impacted by the taking of the action (e.g., the payment of a
dividend) itself (such as a debt to cash flow test) would not be deemed to
29
be a restriction on the foregoing actions); and
provided further
that the Company may, from time to
time, redesignate any Restricted Subsidiary as an Unrestricted Subsidiary in accordance with
Section 1012.
Rule 144A Global Security has the meaning specified in Section 303.
S&P means Standard & Poors Financial Services LLC, a subsidiary of The McGraw-Hill Companies,
Inc., and its successors.
Securities Act means the Securities Act of 1933, as amended.
Securities Issue Date means June 30, 2011 with respect to the Initial Securities, the date of
original issuance of the Exchange Securities with respect to the Exchange Securities and the date
of original issuance of the Additional Securities with respect to any Additional Securities.
Securitization Subsidiary means a Restricted Subsidiary that is established for the limited
purpose of acquiring and financing Receivables and Related Assets and engaging in activities
ancillary thereto;
provided
that (a) no portion of the Indebtedness of a Securitization Subsidiary
is Guaranteed by or is recourse to the Company or any other Restricted Subsidiary (other than
recourse for customary representations, warranties, covenants and indemnities, none of which
relates to the collectability of the Receivables and Related Assets) and (b) none of the Company or
any other Restricted Subsidiary has any obligation to maintain or preserve such Securitization
Subsidiarys financial condition.
Security and Securities have the meaning specified in the second paragraph of this Indenture,
such terms to include the Initial Securities, the Exchange Securities and any Additional
Securities. The Initial Securities, the Exchange Securities and any Additional Securities shall be
treated as a single class for all purposes under this Indenture.
Security Register and Security Registrar have the respective meanings specified in Section 305.
Senior Indebtedness means, with respect to any Person, all principal of (premium, if any) and
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person whether or not a claim for post filing interest is allowed
in such proceedings) with respect to all Indebtedness of such Person; provided that Senior
Indebtedness shall not include
(a) any Indebtedness of such Person that, by its terms or the terms of the instrument creating
or evidencing such Indebtedness, is expressly subordinate in right of payment to the Securities;
(b) any Guarantee of Indebtedness of any subsidiary of such Person if recourse against such
Guarantee is limited to the Capital Stock or other equity interests of such subsidiary;
30
(c) any obligation of such Person to any subsidiary of such Person or, in the case of a
Restricted Subsidiary, to the Company or any other Subsidiary; or
(d) any Indebtedness of such Person (and any accrued and unpaid interest in respect thereof)
that is subordinate or junior in any respect to any other Indebtedness or other obligation of such
Person.
Shelf Registration Statement means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
Significant Subsidiary means any Subsidiary that would constitute a significant subsidiary
within the meaning of Article 1 of Regulation S-X promulgated pursuant to the Exchange Act, as such
Regulation is in effect on the date of this Indenture.
Special Record Date means a date fixed by the Trustee for the payment of any Defaulted
Interest 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.
Stock Payment means, with respect to any Person, the payment or declaration of any dividend,
either in cash or in property (except dividends payable in common stock or common shares of Capital
Stock of such Person), or the making by such Person of any other distribution, on account of any
shares of any class of its Capital Stock, now or hereafter outstanding, or the redemption,
purchase, retirement or other acquisition or retirement for value by such Person, directly or
indirectly, of any shares of any class of its Capital Stock, now or hereafter outstanding, other
than the redemption, purchase, defeasance or other acquisition or retirement for value of any
Disqualified Stock at its mandatory redemption date or other maturity date.
subsidiary means, as to a particular parent entity at any time, any entity of which more than 50%
of the outstanding Voting Stock or other equity interest entitled ordinarily to vote in the
election of the directors or other governing body (however designated) of such entity is at the
time beneficially owned or controlled directly or indirectly by such parent corporation, by one or
more such entities or by such parent corporation and one or more such entities.
Subsidiary means any subsidiary of the Company.
Suspended Covenants has the meaning specified in Section 1016.
Suspension Condition has the meaning specified in Section 1016.
Transactions means the transactions contemplated by (i) the Distribution Transaction, (ii) the
Credit Agreement and (iii) the offering of the Initial Securities.
31
Trust Indenture Act means the Trust Indenture Act of 1939, as amended, and as in force at the
date as of which this instrument was executed, except as provided in Section 905;
provided
,
however
, that, in the event that 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.
Trustee means the Person named as the Trustee in the first paragraph of this Indenture, until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter Trustee shall mean such successor Trustee.
UCC has the meaning given to such term in the Collateral Documents.
Unrestricted Subsidiary means any Subsidiary that is not a Restricted Subsidiary.
Voting Stock means any Capital Stock having voting power under ordinary circumstances to vote in
the election of the directors of a corporation (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by reason of the happening of any
contingency).
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number
of years obtained by dividing:
|
(1)
|
|
the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that shall elapse between such date and the making of such payment; by
|
|
(2)
|
|
the then outstanding principal amount of such Indebtedness.
|
Section 102. Other Definitions
.
|
|
|
|
|
|
|
Defined
|
|
Term
|
|
in Section
|
|
Act
|
|
|
105
|
|
Bankruptcy Law
|
|
|
501
|
|
Change of Control Offer
|
|
|
1015
|
|
Change of Control Payment
|
|
|
1015
|
|
Change of Control Payment Date
|
|
|
1015
|
|
Custodian
|
|
|
501
|
|
Defaulted Interest
|
|
|
307
|
|
incorporated provision
|
|
|
108
|
|
Restricted Security
|
|
|
205
|
|
Security Register
|
|
|
305
|
|
Security Registrar
|
|
|
305
|
|
successor
|
|
|
801
|
|
32
Section 103. 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 an Officers Certificate
stating that all conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that, in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion (other than the certificates required by Section 1019) with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinion contained in such certificate or opinion are based;
(c) 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
(d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 104. 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
33
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 105. Acts of Holders
.
(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
Trust Indenture Act Section 315) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 105.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of such Holders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), any
such record date shall be the record date specified in or pursuant to such Board Resolution, which
shall be a date not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date;
provided
that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
34
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security or 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, suffered or omitted to be done by the Trustee, any Paying
Agent or the Company in reliance thereon, whether or not notation of such action is made upon such
Security.
Section 106. Notices, Etc. to Trustee and 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,
(a) the Trustee by any Holder, the agents under the Credit Agreement or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or delivered, in writing (which
may be delivered via electronic mail or facsimile), to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Services; or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered in
writing to the Company addressed to AMC Networks Inc., 11 Penn Plaza, New York, New York 10001,
Attention: James G. Gallagher, Esq. or at any other address previously furnished in writing to the
Trustee by the Company.
Section 107. Notice to Holders; Waiver
.
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. Any notice when
mailed to a Holder in the aforesaid manner shall be conclusively deemed to have been received by
such Holder whether or not actually received by such Holder.
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 mail notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
35
Section 108. Conflict of Any Provision of Indenture with Trust Indenture Act
.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Trust Indenture Act Sections 310 to 318, inclusive, or conflicts with any
provision (an incorporated provision) required by or deemed to be included in this Indenture by
operation of such Trust Indenture Act Sections, such imposed duties or incorporated 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 excluded, as the case may be.
Section 109. 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 110. Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its respective
successors and assigns, whether so expressed or not.
Section 111. 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 112. 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, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law; Waiver of Jury Trial
.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of laws principles.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such provisions.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
36
Section 114. Legal Holidays
.
In any case where any Interest Payment Date, any date established for payment of Defaulted
Interest pursuant to Section 307, or any Maturity with respect to 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 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, or
date established for payment of Defaulted Interest pursuant to Section 307, or Maturity, and no
interest shall accrue with respect to such payment for the period from and after such Interest
Payment Date, or date established for payment of Defaulted Interest pursuant to Section 307, or
Maturity, as the case may be, to the next succeeding Business Day.
Section 115. No Recourse Against Others
.
A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. Each Holder by
accepting any of the Securities waives and releases all such liability.
Section 116. U.S.A. Patriot Act
.
The parties hereto acknowledge that in accordance with Section 326 of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, as amended from time to time (the USA Patriot Act), the Trustee, like all financial
institutions and in order to help fight the funding of terrorism and money laundering, is required
to obtain, verify, and record information that identifies each person or legal entity that
establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they shall provide the Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the USA Patriot Act.
Section 117. Force Majeure
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, to the extent beyond its control,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to prevent such actions from occurring and to resume performance as soon as
practicable under the circumstances.
37
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally; Incorporation of Form in Indenture
.
The Securities and the Trustees certificate of authentication with respect thereto shall be
in substantially the forms set forth in this Article, with such appropriate legends, 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 the Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the Security. Each Security
shall be dated the date of its authentication.
The definitive Securities shall be typewritten, printed, lithographed, engraved or otherwise
produced or produced by any combination of these methods 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
.
[THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF
THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ACCRUAL PERIODS, ORIGINAL ISSUE DATE AND YIELD TO MATURITY FOR SUCH SECURITY BY SUBMITTING A
REQUEST FOR SUCH INFORMATION TO THE FOLLOWING ADDRESS: AMC NETWORKS INC., 11 PENN PLAZA, NEW YORK,
NEW YORK 10001, ATTENTION: JAMES G. GALLAGHER, ESQ.]
*
AMC NETWORKS INC.
7.75% Senior Notes due 2021
|
|
|
No.____
|
|
$_________________
|
|
|
CUSIP No. Reg. S U02400 AA4
|
|
|
144A 00164V AA1
|
|
|
ISIN No. Reg. S USU02400AA45
|
|
|
144A US00164VAA17
|
AMC Networks Inc., a Delaware corporation (herein called the Company, which term
includes any successor entity under the Indenture hereinafter referred to), for value received,
hereby promises to pay to _________________ or registered assigns the principal sum of ______
Dollars on July 15, 2021, at the office or agency of the Company referred to below,
38
and to pay interest thereon on [ ]
**
, and semiannually thereafter, on January 15
and July 15 in each year from the Securities Issue Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for at the rate of 7.75% per annum until the
principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest
on any overdue interest at the rate borne by the Securities from the date of the Interest Payment
Date on which such overdue interest becomes payable to the date payment of such interest has been
made or duly provided for.
[The Holder of this Security is entitled to the benefits of the Registration Rights Agreement,
dated June 30, 2011 (the Registration Rights Agreement), among the Company, the Guarantors named
therein and the Initial Purchasers named therein. Subject to the terms of the Registration Rights
Agreement, in the event an exchange offer (the Exchange Offer) for this Initial Security is not
consummated or a registration statement under the Securities Act with respect to resales of this
Security (the Shelf Registration Statement) is not declared effective by the Commission on or
prior to the 400
th
calendar day following June 30, 2011, in either case, in accordance
with the Registration Rights Agreement, the aforesaid interest rate borne by this Security shall be
increased by one-quarter of one percent per annum for the first 90 days following June 30, 2011.
Such interest rate shall increase by an additional one-quarter of one percent per annum thereafter,
up to a maximum aggregate increase of one half of one percent per annum. Subject to the terms of
the Registration Rights Agreement, upon consummation of the Exchange Offer or the effectiveness of
a Shelf Registration Statement, as the case may be, the interest rate borne by this Security shall
be reduced to 7.75% per annum.]***
If any interest has accrued on this Security in respect of any period prior to the issuance of
this Security, such interest shall be payable in respect of such period at the rate or rates borne
by the Predecessor Security surrendered in exchange for this Security from time to time during such
period. The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall, 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 January 1 or July 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, and interest on such defaulted interest at the interest rate borne by
this Security, to the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may 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 may 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 the Indenture. Payment of the principal
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*
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Include only for Securities issued with original issue discount.
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**
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In the case of an Initial Security, insert January 15, 2012.
In the case of any Security other than an Initial Security, insert the
relevant Initial Interest Payment Date.
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***
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Include only for Initial Securities. In the
case of any Additional Securities, briefly describe terms of the
applicable registration rights agreement.
|
39
of and interest on this Security shall be made at the office or agency of the Company
maintained for that purpose in The City of New York, or at such other office or agency of the
Company as may be maintained 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 payment of interest may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall appear on the Security
Register.
Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
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 duly 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.
Section 203. Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company designated as its
7.75% Senior Notes due 2021 (herein called the Securities), which may be issued under an
indenture, dated as of June 30, 2011 (herein called the Indenture), among the Company, the
Guarantors named therein and U.S. Bank National Association, 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, the holders of the Senior Indebtedness and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, initially limited in aggregate principal amount to
$700,000,000;
provided
,
however
, that the Company may from time to time, without notice to or the
consent of the Holders of Securities, create and issue further Securities of this series (the
Additional Securities) having the same terms and ranking equally and ratably with the Securities
of this series in all respects and with the same CUSIP number as the Securities of this series, or
in all respects except for payment of interest accruing prior to the issue date of such Additional
Securities or except for the first payment of interest following the issue date of such Additional
Securities. Any Additional Securities shall be consolidated and form a single series with the
Securities and shall have the same terms as to status, redemption and otherwise as the Securities.
Any Additional Securities may be issued pursuant to authorization provided by a Board Resolution, a
supplement to the Indenture, or under an Officers Certificate pursuant to the
40
Indenture. No Additional Securities may be issued if an Event of Default has occurred and is
continuing with respect to the Securities of this series.
[This Security is exchangeable under certain circumstances as provided in the Indenture for
the Exchange Securities (as defined under the Indenture) issued under the Indenture. Unless the
context otherwise requires, the Securities and Exchange Securities shall constitute one series for
all purposes under the Indenture, including without limitation amendments and waivers.]
*
On or after July 15, 2016, the Company may redeem Securities, at its option in whole or in
part at any time and from time to time, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest thereon, to the applicable
Redemption Date, if redeemed during the twelve month period beginning on July 15 of the years
indicated below:
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Year
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Percentage
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2016
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103.875
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%
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2017
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|
102.583
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%
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2018
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101.292
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%
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2019 and thereafter
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100.000
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%
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Any redemption of this Security shall be made pursuant to the provisions of Sections 1101
through 1106 of the Indenture.
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.
This Security does not have the benefit of any sinking fund obligations.
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 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 or on behalf of
the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any 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
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*
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Include only for Initial Securities and any
Additional Securities, other than the Exchange Securities.
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41
unconditional, to pay the principal of 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 on the Security Register of the Company, upon surrender of
this Security for registration of transfer at the office or agency of the Company maintained for
such purpose in 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, shall be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in minimum denominations
of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the 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 registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental charges payable in connection with any registration
of transfer or exchange.
Prior to the time of 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 as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with the laws of the State of
New York, without regard to conflicts of laws principles thereof.
All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Certificate of Transfer
**
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers this Security to
(Please typewrite or print name and taxpayer identification number)
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**
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Include only for Initial Securities and any
Additional Securities, other than the Exchange Securities.
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42
(Please typewrite or print address)
and hereby irrevocably constitutes and appoints _______________________ his attorney to transfer
the same on the books of the Company, with full power of substitution in the premises.
In connection with any transfer of all or any portion of the Security evidenced by this
certificate for as long as such Security is a Restricted Security, the undersigned confirms that
such Security is being transferred:
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o
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(a) Pursuant to and in compliance with Rule 144A under the Securities Act of 1933,
as amended (the Securities Act);
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or
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o
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(b) Pursuant to offers and sales to non-U.S. Persons that occur outside the United
States in compliance with Rule 903 or 904 of Regulation S under the Securities Act;
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Unless one of the boxes above is checked, the Trustee shall refuse to register all or any
portion of the Security evidenced by this certificate in the name of any person other than the
registered holder thereof (or hereof);
provided
,
however
, that the Trustee may, in its sole
discretion, register the transfer of such Security if it has received such certifications, legal
opinions and/or other information as it has reasonably requested to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
NOTE: The signature to this assignment must correspond with the name as written upon the face of
this Security in every particular, without alteration or enlargement, or any change whatever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A (including the information specified in Rule 144(d)(4)) or has
determined not to request such information and that it is aware that the transferor is relying upon
the undersigneds foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
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Dated:
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To be signed by an executive officer
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43
SCHEDULE OF EXCHANGES FOR DEFINITIVE SECURITIES
The following exchanges of a part of this Security in global form for definitive Securities or
of definitive Securities for a part of this Security in global form have been made:
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Principal
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Amount of
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Amount of
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Amount of
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Signature of
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decrease in
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increase in
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this Security
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authorized
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Principal
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Principal
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in global form
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signatory of
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Amount of
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Amount of
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following such
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Trustee or
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Date of
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this Security
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this Security
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decrease (or
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Securities
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Exchange
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in global form
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in global form
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increase)
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Custodian
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Section 204. Form of Trustees Certificate of Authentication
.
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By
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Authorized Signatory
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Dated:
Section 205. Form of Legend on Restricted Securities
.
During the period beginning on the Securities Issue Date with respect to a Security that is
not an Exchange Security and ending on the later of the date occurring one year after such date and
the date on which such Security is (a) freely transferable in accordance with Rule 144 by a person
that is not an affiliate (as defined in Rule 144) of the Company where no conditions under Rule
144 are then applicable (other than the holding period requirement of paragraph (d) of Rule 144 so
long as such holding period requirement is satisfied at such time of determination), (b) does not
bear any restrictive legends relating to the Securities Act and (c) does not bear a restrictive
CUSIP number, any such Security issued or owned during the period set forth above, as the case may
be, and any Security (other than an Exchange Security) issued upon registration of transfer of, or
in exchange for, or in lieu of, such Security shall be deemed a Restricted Security and shall be
subject to the restrictions on transfer provided in the legend set forth below;
provided
,
however
,
that the term Restricted Security shall not include (a) any Security which is issued upon
transfer of, or in exchange for, any Security which is not a Restricted Security, (b) any Security
(other than an Exchange Security) as to which such restrictions on transfer have been terminated in
accordance with Section 314 or (c) any Exchange
44
Security issued pursuant to an Exchange Offer. Any Restricted Security shall bear a legend in
substantially the following form:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (RULE 144A)), OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS ONE YEAR AFTER
THE DATE OF ORIGINAL ISSUE HEREOF ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE
144A) TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE
TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANYS
AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D)
PRIOR TO THE END OF THE 40 DAYS DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
Section 206. Form of Legend for Book-Entry Securities
.
Any Global Security authenticated and delivered hereunder shall bear a legend (which would be
in addition to any other legends required in the case of a Restricted Security) in substantially
the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE
45
NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS
SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR
THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms
.
The aggregate principal amount of Initial Securities that may be authenticated and delivered
under this Indenture is limited to $700,000,000 and the aggregate principal amount of Exchange
Securities and Additional Securities is unlimited, except, in each case, for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 303, 304, 305, 306 or 906.
The Securities shall be known and designated as the 7.75% Senior Notes due 2021 of the
Company. Their Stated Maturity shall be July 15, 2021, and they shall bear interest at the rate of
7.75% per annum (except as otherwise provided for in the form of Security) from the relevant
Securities Issue Date, or the most recent Interest Payment Date to which interest has been paid or
duly provided for on a given Security or a Security surrendered in exchange for such Security, as
the case may be, payable on the relevant Initial Interest Payment Date (as defined below) and
semiannually thereafter on January 15 and July 15 of each year and at said Stated Maturity, until
the principal thereof is paid or duly provided for. The term Initial Interest Payment Date means
(a) with respect to any Security other than the Initial Securities, the first January 15 or July 15
occurring after the Securities Issue Date for such Security and (b) with respect to each Initial
Security, January 15, 2012. The Initial Securities, the Exchange Securities and any Additional
Securities issued hereunder shall rank
pari passu
.
The principal of and interest on the Securities shall be payable at the office or agency of
the Company maintained for such purpose in The City of New York, or at such other office or agency
of the Company as may be maintained for such purpose;
provided
,
however
,
46
that, at the option of the
Company, cash interest may be paid by check mailed to addresses of the Persons entitled thereto as
such addresses shall appear on the Security Register.
The Securities are subject to redemption at the option of the Company on terms and in the
manner set forth in Sections 1101 through 1107 hereof and the Securities are subject to repurchase
at the option of Holders on terms and in the manner set forth in Section 1108 hereof.
The Securities shall be senior unsecured obligations of the Company and shall rank
pari passu
in right of payment with all existing and future unsubordinated indebtedness of the Company.
Section 302. Denominations
.
The Securities shall be issuable only in registered form without coupons and only in minimum
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 303. Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by any one of the following: its
Chairman, Chief Executive Officer, one of its Vice Chairmen, its President, one of its Vice
Presidents. The signature of any 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.
The Trustee shall, except as set forth in the following sentences, upon Company Order)
authenticate and deliver (a) the Initial Securities for original issue in an aggregate principal
amount of up to $700,000,000, (b) the Exchange Securities for issue only in a registered Exchange
Offer pursuant to the Registration Rights Agreement for a like principal amount of the Initial
Securities or Additional Securities, if any, and (c) Additional Securities as set forth below. In
connection with any surrender of a Security for registration of transfer pursuant to Section 305,
the Trustee shall, upon receipt of the surrendering Holders certificate of transfer in lieu of a
Company Order, authenticate and deliver Securities in aggregate principal amount equal to the
Securities so surrendered, in such denominations and registered in such names as such surrendering
Holder shall specify in such written instructions (and such Securities shall, if so specified in
such instructions, be issued in global form as a Rule 144A Global Security or a Regulation S Global
Security (each as defined below), registered in the name of the Depositary or the nominee of the
Depositary).
Each Security shall be dated the date of its authentication.
No Security endorsed thereon 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 duly executed by the Trustee by
47
manual signature of
one of its duly authorized signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated or merged with or into
any other Person or shall convey, transfer, lease or otherwise dispose of substantially all of its
properties and assets to any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the successor Person
which shall have received a conveyance, transfer, Lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to Article Eight, any of
the Securities authenticated or delivered prior to such consolidation, merger, conveyance,
transfer, Lease or other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor Person with such
changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as
the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon
written order of the successor Person, shall authenticate and deliver Securities as specified in
such request for the purpose of such exchange. If Securities shall at any time be authenticated
and delivered in any new name of a successor Person pursuant to this Section 303 in exchange or
substitution for or upon registration of transfer of any Securities, such successor Person, at the
option of any Holder but without expense to such Holder, shall provide for the exchange of all
Securities at the time Outstanding held by such Holder for Securities authenticated and delivered
in such new name.
Except as described below, the Securities shall be deposited with, or on behalf of, the
Depository, and registered in the name of the Depository or the nominee of the Depository in the
form of one or more global note certificates (each a Rule 144A Global Security), for credit to
the respective accounts of the beneficial owners of the Securities represented thereby. The Rule
144A Global Securities shall bear the legend set forth in Section 206 and, in the case of
Restricted Securities, the legend set forth in Section 205.
Securities purchased by persons outside the United States pursuant to sales in accordance with
Regulation S under the Securities Act shall be deposited with, or on behalf of, the Depository, and
registered in the name of the Depository or the nominee of the Depository in the form of one or
more global note certificates (each a Regulation S Global Security), for credit to the respective
accounts of the beneficial owners of the Securities represented thereby (or such other accounts as
they may direct). Securities represented by a Regulation S Global Security shall not be
exchangeable for Securities in registered definitive form (each a Physical Security) until the
expiration of the 40-day restricted period within the meaning of Rule 903(c)(3) of Regulation S
under the Securities Act. During this 40-day restricted period, Regulation S Global Securities may
only be held through Euroclear System and Clearstream Banking, S.A., unless transferred to a person
that takes delivery through a Rule 144A Global Security. The Regulation S Global Securities shall
bear the legend set forth in Section 206 and, in the case of Restricted Securities, the legend set
forth in Section 205.
The two paragraphs immediately preceding shall not have effect until such time as the Trustee
shall be instructed (in a Company Order or in a Holders instruction upon surrender for
registration of transfer) to register the transfer of the Initial Securities upon surrender thereof
48
as a Rule 144A Global Security or a Regulation S Global Security, and until such time the Initial
Securities shall be issued in certificated form in such denominations and registered in the name of
such Holders as shall be set forth in a Company Order (with respect to the initial
authentication and delivery of the Initial Securities) or in a Holders certificate of
transfer upon surrender for registration of transfer, as set forth in this Section 303.
The Company may, subject to Article Ten of this Indenture and applicable law, issue under this
Indenture Additional Securities and Exchange Securities therefor;
provided
,
however
, that the
Company may not issue any Additional Securities if an Event of Default with respect to any
Outstanding Securities shall have occurred and be continuing at the time of such issuance. All
Securities issued under this Indenture shall be treated as a single class for all purposes under
this Indenture.
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 typewritten,
printed, lithographed, engraved or otherwise produced or produced by any combination of these
methods, 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 conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company shall 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 the office or agency of the Company designated for such purpose 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. 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
.
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 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 initially appointed Security
Registrar for the purpose of registering Securities and transfers of Securities as herein
provided. Such Security Register shall distinguish between Initial Securities, Exchange Securities
and Additional Securities.
Except as otherwise described in this Article Three, upon surrender for registration of
transfer of any Security at the office or agency of the Company designated pursuant to Section 1002
for such purpose, the Company shall execute, and the Trustee shall
49
authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of any authorized
denomination or denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations and of a like aggregate principal amount 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;
provided that
no exchange of Initial Securities or Additional Securities for Exchange Securities shall occur
until an Exchange Offer Registration Statement shall have been declared effective by the
Commission, the Trustee shall have received an Officers Certificate confirming that the Exchange
Offer Registration Statement has been declared effective by the Commission and the Initial
Securities or Additional Securities to be exchanged for the Exchange Securities shall be canceled
by the Trustee.
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 (subject to the provisions in the
Initial Securities regarding the payment of additional interest) 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 Security Registrar) 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.
Every Restricted Security shall be subject to, and no transfer shall be made other than in
accordance with, the restrictions on transfer provided in the legend set forth on the form of the
face of each Restricted Security and the restrictions set forth in this Article Three, and the
Holder of each Restricted Security, by such Holders acceptance thereof, agrees to be bound by such
restrictions on transfer.
The Security Registrar shall notify the Company of any proposed transfer of a Restricted
Security to any Person.
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 pay all documentary, stamp or similar
issue or transfer taxes or other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges pursuant to Section 303,
304 or 906 not involving any transfer.
The Company shall not be required to issue, register the transfer of or exchange any Security
during a period beginning at the opening of business 15 days before an Interest Payment Date and
ending on the close of business on such Interest Payment Date.
50
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among Agent
Members or beneficial owners of interests in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security,
and there is delivered to the Company and the Trustee such security or indemnity satisfactory to
them to save each of them and any agent of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for
any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, 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 replacement
Security, pay such Security.
Upon the issuance of any replacement Securities under this Section 306, the Company may
require the payment of a sum sufficient to pay all documentary, stamp or similar issue or transfer
taxes or other governmental charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section 306 in lieu of any destroyed, lost
or stolen Security shall constitute a 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 benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section 306 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.
51
Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date and interest on such defaulted interest at the interest rate
borne by the Securities, to the extent lawful (such defaulted interest and interest thereon herein
collectively 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 Subsection
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names 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
Subsection provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest that 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. In the name and at the expense of the Company, the
Trustee 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 Subsection (b).
(b) 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 Subsection,
such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, 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.
52
Section 308. Persons Deemed Owners
.
Prior to the time of due presentment for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payment of principal of 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, registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled 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 canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 309, except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures.
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.
Section 311. Registration Rights of Holders of Initial Securities
.
Pursuant to the terms of the Registration Rights Agreement, Holders of Initial Securities and
Additional Securities, if applicable, shall be entitled to the benefits of the Registration Rights
Agreement.
Section 312. ISIN and CUSIP Numbers
.
The Company in issuing the Securities may use ISIN and CUSIP numbers (if then generally in
use) in addition to serial numbers, and, if so, the Trustee shall use such ISIN and CUSIP
numbers in addition to serial numbers in notices of repurchase as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a repurchase and
that reliance may be placed only on the serial or other identification numbers printed on the
Securities, and any such repurchase shall not be affected by any defect in or omission of such
ISIN or CUSIP numbers. The Company shall promptly notify the Trustee in writing of any change
in the ISIN or CUSIP numbers.
Section 313. Book-Entry Provisions for Global Securities
.
(a) The Global Securities initially shall (i) be registered in the name of the Depository or
the nominee of such Depository, (ii) be delivered to the Trustee as custodian for
53
such Depository
and (iii) bear legends as set forth in Section 206 and, in the case of Restricted Securities in the
form of Global Securities, Section 205.
Members of, or participants in, the Depository (Agent Members) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Security, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
the Depository, its successors or their respective nominees. Interests of beneficial owners in a
Rule 144A Global Security may be transferred or exchanged for interests in a Regulation S Global
Security, and interests of beneficial owners in a Regulation S Global Security may be transferred
or exchanged for interests in a Rule 144A Global Security, in each case in accordance with the
rules and procedures of the Depository and the provisions of Section 314. Interests of beneficial
owners in the Global Securities may be transferred or exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the provisions of Section 314.
In addition, Physical Securities shall be transferred to all beneficial owners in exchange for
their beneficial interests in a Global Security if (i) the Depository (x) notifies the Company that
it is unwilling or unable to continue as a depository for such Global Security or (y) if at any
time the Depository ceases to be a clearing agency registered under the Exchange Act and, in either
case, a successor depository is not appointed by the Company within 90 days, (ii) there shall have
occurred and be continuing an Event of Default with respect to the Securities represented by such
Global Security and the Trustee has received a written request from the Depository or (iii) the
Company at any time notifies the Trustee, in writing, that it elects not to have Securities
represented by a Global Security.
Except as provided above, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Global Security, whether pursuant to this
Section 313, Section 304, 305, 306 or 906 or otherwise, shall also be a Global Security and bear
the legend specified in Section 206.
(c) In connection with any transfer or exchange of a portion of the beneficial interest in any
Global Security to beneficial owners pursuant to paragraph (b), the Security Registrar shall (if
one or more Physical Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal to the principal amount
of the beneficial interest in the Global Security to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and
principal amount of authorized denominations.
54
(d) In connection with the transfer of Global Securities as an entirety to beneficial owners
pursuant to paragraph (b), the Global Securities shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its beneficial interest in the
Global Securities, an equal aggregate principal amount of Physical Securities of like tenor of
authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in a Global Security pursuant
to paragraph (b) or (c) of this Section 313 shall, except as otherwise provided
by clause (i)(x) of paragraph (a) and by paragraph (e) of Section 314, bear the legend set
forth in Section 205.
(f) The Holder of any Global Security may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent Members, to take any
action that a Holder is entitled to take under this Indenture or the Securities.
Section 314. Special Transfer Provisions
.
(a)
Transfers to Non-U.S. Persons
. The following provisions shall apply with respect
to the registration of any proposed transfer of a Restricted Security to any non-U.S. person:
(i) the Security Registrar shall register the transfer of any Restricted Security if
(x) the requested transfer is not prior to the later of the date which is one year (or such
other period as may be prescribed by Rule 144 under the Securities Act or any successor
provision thereunder) after the later of the original issue date of such Security (or of any
Predecessor Security) or the date on which such Security is (a) freely transferable in
accordance with Rule 144 by a person that is not an affiliate (as defined in Rule 144) of
the Company where no conditions under Rule 144 are then applicable (other than the holding
period requirement of paragraph (d) of Rule 144 so long as such holding period requirement
is satisfied at such time of determination), (b) does not bear any restrictive legends
relating to the Securities Act and (c) does not bear a restrictive CUSIP number or (y) the
proposed transferee has checked the box provided for on the form of Security stating, and
has provided to the Security Registrar such certifications, opinions and other information
as the Security Registrar may (and, if so directed by the Company, shall) require, stating
that such Security is being transferred pursuant to offers and sales to non-U.S. persons
that occur outside the United States within the meaning of Regulation S under the Securities
Act; and
(ii) the Security Registrar shall register the transfer of any Restricted Security if
the proposed transferor is an Agent Member holding a beneficial interest in a Rule 144A
Global Security, upon receipt by the Security Registrar of (x) the certificate stating that
such Security is being transferred pursuant to offers and sales to non-U.S. Persons that
occur outside the United States in compliance with Rule 903 or 904 of Regulation S under the
Securities Act and (y) instructions given in accordance with the Depositorys and the
Security Registrars procedures;
55
whereupon the Security Registrar shall reflect on its books and records the date of such transfer
and (A) (if the transfer involves a transfer of a beneficial interest in a Rule 144A Global
Security) a decrease in the principal amount of such Rule 144A Global Security in an amount equal
to the principal amount to be transferred and (B) an increase in the principal amount of a
Regulation S Global Security in an amount equal to the principal amount to be transferred.
(b)
Transfers to QIBs
. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Security to a person purporting to be a QIB
(excluding transfers to non-U.S. persons):
(i) the Security Registrar shall register the transfer of any Restricted Security if
such transfer is being made by a proposed transferor who has checked the box provided for on
the form of Security stating, or who has otherwise advised the Company and the Security
Registrar in writing, that the transfer has been made in compliance with the exemption from
registration under the Securities Act provided under Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that such transferee represents
and warrants that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that each of it and any such
account is a QIB within the meaning of Rule 144A and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying upon the
foregoing representations in order to claim the exemption from registration provided by Rule
144A; and
(ii) the Security Registrar shall register the transfer of any Restricted Security if
the proposed transferee is an Agent Member, and the Securities to be transferred consist of
Physical Securities which after transfer are to be evidenced by an interest in the Rule 144A
Global Security, upon receipt by the Security Registrar of instructions given in accordance
with the Depositorys and the Security Registrars procedures, the Security Registrar shall
reflect on the Security Register the date and an increase in the principal amount of the
Rule 144A Global Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c)
Transfers during the 40-day Restricted Period
. The following provisions shall
apply with respect to the exchange of beneficial interests in the Regulation S Global Securities
for beneficial interests in the Rule 144A Global Securities prior to the expiration of the 40-day
restricted period:
(i) the requested transfer is not prior to the later of (a) the date which is one year
(or such other period as may be prescribed by Rule 144 under the Securities Act or any
successor provision thereunder) after the later of the original issue date of such Security
(or of any Predecessor Security) and (b) the date on which such Security is (I) freely
transferable in accordance with Rule 144 by a person that is not an affiliate (as defined
in Rule 144) of the Company where no conditions under Rule 144 are then
56
applicable (other
than the holding period requirement of paragraph (d) of Rule 144 so long as such holding
period requirement is satisfied at such time of determination), (II) does not bear any
restrictive legends relating to the Securities Act and (III) does not bear a restrictive
CUSIP number; and
(ii) the transferor delivers to the Security Registrar a written certificate that the
Securities are being transferred to a Person (a) who the transferor reasonable believes to
be a QIB, (b) who represents and warrants that it is purchasing the Security for its own
account or an account with respect to which it exercises sole investment discretion and that
it and any such account is a QIB within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A (including the information specified in Rule 144(d)(4)) or has
determined not to request such information and that it is aware that the transferor is
relying upon the undersigneds foregoing representations in order to claim the exemption
from registration provided by Rule 144A and (c) in accordance with all applicable securities
laws of the states of the United States and other jurisdictions.
(d)
Other Transfers
. If a Holder proposes to transfer a Security pursuant to any
exemption from the registration requirements of the Securities Act other than as provided for by
Sections 314(a) and 314(b), the Security Registrar shall only register such transfer or exchange if
such transferor delivers to the Security Registrar and the Trustee an Opinion of Counsel
satisfactory to the Company and the Security Registrar that such transfer is in compliance with the
Securities Act and the terms of this Indenture;
provided
that the Company may, based upon the
opinion of its counsel, instruct the Security Registrar by a Company Order not to register such
transfer in any case where the proposed transferee is not a QIB or a non-U.S. person.
(e)
Private Placement Legend
. Upon the registration of transfer, exchange or
replacement of Restricted Securities, the Security Registrar shall deliver only Securities that
bear the legend set forth in Section 205 unless the circumstances contemplated by clause (a)(1)(x)
of this Section 314 exist. By its acceptance of any Security bearing the legend set forth in
Section 205, each Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in such legend and agrees that it shall transfer such
Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 313 or this Section 314 for a period of two years,
after which time such letters, notices and other written communications shall at the written
request of the Company be delivered to the Company. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Security Registrar.
(f)
Termination of Restrictions
. The restrictions imposed by this Section 314 upon
the transferability of any particular Restricted Security shall cease and terminate (i) on the
later of the date occurring one year after the Securities Issue Date with respect to such
Restricted Security (or any Predecessor Security of such Restricted Security) and the date on which
such
57
Security is (a) freely transferable in accordance with Rule 144 by a person that is not an
affiliate (as defined in Rule 144) of the Company where no conditions under Rule 144 are then
applicable (other than the holding period requirement of paragraph (d) of Rule 144 so long as such
holding period requirement is satisfied at such time of determination), (b) does not bear any
restrictive legends relating to the Securities Act and (c) does not bear a restrictive CUSIP number
or (ii) (if earlier) if and when such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act. Any Restricted Security as to which
such restrictions on transfer shall have expired in accordance with their terms or shall have
terminated may, upon surrender of such Restricted Security for exchange to the Trustee or any
transfer agent in accordance with the provisions of Section 305, be exchanged for a new Initial
Security or any Additional Security, as the case may be, of like tenor and aggregate principal
amount, which shall not bear the restrictive legend required by Section 205. The Company shall
inform the Trustee in writing of (i) the effective date of any registration statement registering
the Initial Securities or any Additional Security, as the case may be, under the Securities Act and
(ii) the date which is one year after the last date on which the Company or any Affiliate of the
Company was the owner of a Restricted Security in the event that an Exchange Offer has not been
consummated.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture
.
This Indenture shall, upon Company Request, cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for) and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(i) all Securities theretofore authenticated and delivered (other than (A)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (B) 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
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) shall become due and payable within one year,
and the Company, in the case of subclauses (A) or (B) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for the
58
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 interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) 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, the obligations of the Company to
the Trustee under Section 606 and, if money shall have been deposited with the Trustee pursuant to
subclause (ii) of Subsection (a) of this Section 401, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
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 Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default
.
An Event of Default occurs if:
(a) the Company defaults in the payment of interest on any Security when the same
becomes due and payable and such default continues for a period of 30 days;
(b) the Company defaults in the payment of the principal of any Security when the same
becomes due and payable at maturity, upon acceleration or otherwise;
(c) the Company or any Restricted Subsidiary fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities or this Indenture, and the
Default continues for the period and after the notice, if any, specified below;
(d) a default occurs under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or one of its Restricted Subsidiaries (or the payment of
59
which is Guaranteed
by the Company or one of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists or shall be created hereafter (but excluding any Indebtedness for the
deferred purchase price of property or services owed to the Person providing such property
or services as to which the Company or such Restricted Subsidiary is contesting its
obligation to pay the same in good faith and by proper
proceedings and for which the Company or such Restricted Subsidiary has established
appropriate reserves), and (i) either (A) such event of default results from the failure to
pay any such Indebtedness at final maturity or (B) as a result of such event of default the
maturity of such Indebtedness has been accelerated prior to its expressed maturity and (ii)
the principal amount of such Indebtedness equals $25.0 million or more or, together with the
principal amount of any such Indebtedness in default for failure to pay principal at
maturity or the maturity of which has been so accelerated, aggregates $25.0 million or more;
(e) a final judgment or final judgments for the payment of money are entered by a court
or courts of competent jurisdiction against the Company or any Restricted Subsidiary and
either (i) an enforcement proceeding shall have been commenced by any creditor upon such
judgment or (ii) such judgment remains undischarged and unbonded for a period (during which
execution shall not be effectively stayed) of 60 days,
provided
that the aggregate of all
such judgments exceeds $25.0 million;
(f) except as permitted by this Indenture, the Note Guarantee of any Subsidiary that is
not an Insignificant Subsidiary shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or any such
Guarantor, or any Person acting on behalf of any such Guarantor, shall deny or disaffirm in
writing its obligations under its Note Guarantee;
(g) the Company, any Guarantor that is not an Insignificant Subsidiary or any
Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a
Significant Subsidiary) pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary
case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing that it generally is unable to pay its debts as the same
become due; or
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
60
(i) is for relief against the Company, any Guarantor that is not an
Insignificant Subsidiary or any Significant Subsidiary (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary), in an
involuntary case or proceeding;
(ii) appoints a Custodian of the Company, any Guarantor that is not an
Insignificant Subsidiary or any Significant Subsidiary (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary) or for all or
substantially all of the property of the Company, any Guarantor that is not an
Insignificant Subsidiary or any Significant Subsidiary (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary); or
(iii) orders the liquidation of the Company, any Guarantor that is not an
Insignificant Subsidiary or any Significant Subsidiary (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary);
and in each case the order or decree remains unstayed and in effect for 60 days.
The term Bankruptcy Law means Title 11, U.S. Code or any similar Federal or state law for
the relief of debtors. The term Custodian means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
A Default under Section 501(c) is not an Event of Default until the Trustee notifies the
Company in writing, or the Holders of at least 25% in principal amount of the Securities then
Outstanding notify the Company and the Trustee in writing, of the Default, and the Company does not
cure the Default within 60 days (30 days in the case of a Default under Section 801, 1003, 1014 or
1015) after receipt of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a Notice of Default. Such notice to the Company shall be given by
the Trustee if so requested in writing by the Holders of 25% of the principal amount of the
Securities then Outstanding.
Section 502. Acceleration of Maturity; Rescission
.
If an Event of Default (other than an Event of Default specified in Section 501(g) or (h))
occurs and is continuing, the Trustee or the Holders of at least 25% of the principal amount of the
Securities then Outstanding, voting together as a single class, by written notice to the Company
and the agents, if any, under the Credit Agreement (and to the Trustee if such notice is given by
the Holders), may, and the Trustee at the request of such Holders shall, declare all unpaid
principal of and accrued interest on all the Securities to be due and payable, as specified below.
Upon a declaration of acceleration, such principal and accrued interest shall be due and payable 10
days after receipt by the Company of such written notice given hereunder. If an Event of Default
specified in Section 501(g) or (h) with respect to the Company occurs, the amounts described above
shall
ipso facto
become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder. Upon payment of such principal and interest, all of the
Companys obligations under the Securities and this Indenture, other than obligations under Section
606, shall terminate.
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The Holders of at least a majority in principal amount of the Securities then Outstanding,
voting together as a single class, by written notice to the Trustee, may rescind an acceleration
and its consequences if (i) all existing Events of Default, other than the non-payment of principal
of or interest on the Securities which have become due solely because
of the acceleration, have been cured or waived and (ii) the rescission would not conflict with
any judgment or decree of a court of competent jurisdiction.
Notwithstanding the preceding paragraph, in the event of a declaration of acceleration in
respect of the Securities because an Event of Default specified in Section 501(d) shall have
occurred and be continuing, such declaration of acceleration shall be automatically annulled if the
Indebtedness that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such Indebtedness, and
written notice of such discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such Indebtedness or a trustee,
fiduciary or agent for such holders, within 30 days after such declaration of acceleration in
respect of the Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
Notices by the Trustee to the agents under the Credit Agreement provided for herein shall be
delivered or mailed to JPMorgan Chase Bank, N.A., Loan and Agency Services Group 1111 Fannin,
10
th
Floor, Houston, Texas 77002, Attention: Yi-Chun Kuo, Facsimile No.: (713) 750-2878
and e-mail Address: yi-chun.kuo@jpmorgan.com, with a copy to JPMorgan Chase Bank, N.A., 383 Madison
Avenue, New York, New York 10179, Attention: John Kowalczuk, Facsimile No.: (212) 270-5127 and
E-mail Address: john.kowalczuk@jpmorgan.com; and to any other person who hereafter becomes an agent
under the Credit Agreement, provided the Trustee has been notified by the Company or the agents
under the Credit Agreement of the names and mailing addresses of such persons.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that if
(a) 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
(b) default is made in the payment of the principal of any Security at the Maturity
thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and interest,
with interest upon the overdue principal and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate borne by the Securities;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel.
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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 and 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 proceed to protect and
enforce its rights and the rights of the Holders under this Indenture by such appropriate private
or judicial proceedings necessary to protect and enforce such rights.
Section 504. Trustee May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) 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 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 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
this Indenture.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any proposal, plan of reorganization, arrangement,
adjustment or composition or other similar arrangement 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.
63
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 and 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.
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 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 this Indenture;
SECOND: To the payment of the amounts then due and unpaid upon the Securities for
principal and interest, 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 interest; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits
.
No Holder of any Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Securities, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default;
(b) the Holders of not less than 25% in principal amount of the Securities then
Outstanding, voting together as a single class, 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;
(c) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance
with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
64
(e) 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
provided in this Indenture and for the equal and ratable benefit of all the Holders (it being
understood that the Trustee does not have an affirmative duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Holders).
Section 508. Unconditional Right of Holders to Receive Principal and Interest
.
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 (subject
to Section 307) interest on such Security on the respective due dates expressed in such Security
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 the
Company, the Trustee and the Holders shall, subject to any determination in such proceeding, 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 provided in 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.
65
Section 512. Control by Holders
.
The Holders of a majority in principal amount of the Securities then Outstanding, voting
together as a single class, 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
(a) such direction shall not be in conflict with any rule of law or with this Indenture
or expose the Trustee to personal liability, and
(b) subject to the provisions of Trust Indenture Act Section 315, the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such direction.
Section 513. Waiver of Past Defaults
.
The Holders of a majority in principal amount of the Securities then Outstanding, voting
together as a single class, may on behalf of the Holders of all the Securities waive any past
Default or Event of Default hereunder and its consequences, except a Default or Event of Default
(a) in the payment of the principal of or interest on any Security, or
(b) 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
.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 514 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Securities then Outstanding, voting together as a single
class, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or interest on any Security on or after the respective Stated Maturities expressed in such
Security;
provided
that neither this Section 514 nor the Trust Indenture Act
66
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.
Section 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in
force, 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 shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities
.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of willful misconduct or gross negligence on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that
(i) this Subsection shall not be construed to limit the effect of clause (a) of this
Section 601;
67
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities; and
(iv) 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.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Certain Rights of Trustee
.
Subject to the provisions of Trust Indenture Act Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed
by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request 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
of the Company 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 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 of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
68
(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 security or indemnity
reasonably satisfactory to it 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
at the expense of the Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(i) in no event shall the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(j) the Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;
(k) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder;
(l) the Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder; and
(m) the Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.
69
FORM OF INCUMBENCY CERTIFICATE
The undersigned, ____________, being the ____________ of ____________ (the Company) does
hereby certify that the individuals listed below are qualified and acting officers of the Company
as set forth in the right column opposite their respective names and the signatures appearing in
the extreme right column opposite the name of each such officer is a true specimen of the genuine
signature of such officer and such individuals have the authority to execute documents to be
delivered to, or upon the request of, _______________________, as
Trustee (the Trustee) under the Indenture dated as of _________ __, 20__, by and between the
Company and the Trustee.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the
____ day of ________, 20_.
Section 603. Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements to be made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein.
Section 604. May Hold Securities
.
The Trustee, any Paying Agent, Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities and, subject to
Trust Indenture Act Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
70
Section 605. 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 606. Compensation and Reimbursement
.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as shall be agreed to in
writing between the Company and the Trustee 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);
(b) 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 shall have been caused by its negligence or willful
misconduct; and
(c) to indemnify each of the Trustee or any predecessor Trustee for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Trustee) incurred without gross negligence or
willful misconduct on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending itself against
any claim or (whether asserted by the Company, a Guarantor, a Holder or any other Person)
liability in connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under this Section 606, the
Trustee shall have a Lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(f) or 501(g), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services shall be intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 606 shall survive the termination of this Indenture.
Section 607. Conflicting Interests
.
The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act.
71
Section 608. Corporate Trustee Required; Eligibility
.
There shall at all times be a Trustee hereunder qualified or to be qualified under Trust
Indenture Act Section 310(a)(1) and which shall have a combined capital and surplus of at least
$50,000,000 to the extent there is such an institution eligible and willing to serve. If the
Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section 608, the combined capital and surplus of the Trustee 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 608, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 609. 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 610.
(b) The Trustee may resign at any time by giving written notice thereof to the Company. 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 at the
expense of the Company any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of a majority in principal
amount of the Outstanding Securities, delivered to the Trustee and the Company. 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 removal, the removed Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of Trust Indenture Act Section
310(b) after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 608 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(iii) 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,
72
then, in any case, (A) the Company by a Board Resolution may remove the Trustee, or (B) subject to
Section 514, the Holder of any Security 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 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 in accordance with Section 610, 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 of the Securities and so accepted appointment, the
Holder of any Security who has been a bona fide Holder 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 notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 610. 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,
provided
,
however
, that the retiring Trustee shall
continue to be entitled to the benefit of Section 606(c); but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges, 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 611. 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
73
consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of 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 the Securities so
authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities.
Section 612. Preferential Collection of Claims Against Company
.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
under 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 613. Trustees Application for Instructions from the Company
.
Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually received such application) unless, with respect to any such action (or the
effective date in the case of an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or omitted.
Section 614. Notice of Defaults
.
Within 90 days after the occurrence of any Default, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register, notice of such Default
hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have
been cured or waived;
provided
,
however
, that, except in the case of a default in the payment of
the principal of or interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interest of the Holders; and
provided further
that, in the case of any default or breach of the character specified in Section
501(d), no such notice to Holders shall be given until at least 30 days after the occurrence
thereof.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders
.
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 privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder, by receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee or any agent of either of them shall be held accountable by
reason of the disclosure of any information as to the names and addresses of the
Holders in accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Trust Indenture Act Section 312.
Section 702. Reports by Trustee
.
Within 60 days after May 15 of each year commencing with May 15, 2012, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15 if required
by Trust Indenture Act Section 313(a).
Section 703. Reports by Company
.
The Company shall supply without cost to each Holder, and file with the Trustee (if not
otherwise filed with the Trustee pursuant to this Indenture) within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and quarterly reports
and of the information, documents and other reports which the Company may be required to file with
the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. If the Company is
not required to file with the Commission such reports and other information referred to in the
immediately preceding sentence, the Company shall furnish without cost to each Holder and file with
the Trustee (i) within 140 days after the end of each fiscal year, annual reports containing the
information required to be contained in Items 1, 2, 3, 6, 7, 8 and 9 of Form 10-K promulgated under
the Exchange Act, or substantially the same information required to be contained in comparable
items of any successor form, and (ii) within 75 days after the end of each of the first three
fiscal quarters of each fiscal year, quarterly reports containing the information required to be
contained in Form 10-Q promulgated under the Exchange Act, or substantially the same information
required to be contained in any successor form. Notwithstanding the foregoing, the Company shall
be deemed to have furnished such reports referred to above to the Holders and the Trustee if the
Company has filed such reports with the Commission via the EDGAR filing system and such reports are
publicly available;
provided
,
however
, that the trustee shall have no responsibilities whatsoever
to determine whether such filing has occurred.
At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a restricted note, the Company shall promptly
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furnish or cause to be
furnished such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or
any successor provision thereto) to such Holder or to a prospective purchaser of such restricted
note designated by such Holder, as the case may be, in order to permit compliance by such Holder
with Rule 144A under the Securities Act.
Delivery of such reports, information and documents under this Section 703, as well as any
such reports, information and documents pursuant to this Indenture, to the Trustee is for
informational purposes only and the Trustees receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein,
including the Companys compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers Certificates). The Trustee shall have no responsibility
or liability for the filing, timeliness or content of any report required under this
Section 703 or any other reports, information and documents required under this Indenture
(aside from any report that is expressly the responsibility of the Trustee subject to the terms
hereof).
The Company shall be entitled to require certification as to a persons bona fide status as a
beneficial owner or prospective investor, as applicable, prior to distributing to such person the
information to be provided by the Company.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not consolidate or merge with or into, or sell, assign, transfer, lease,
convey, or otherwise dispose of all or substantially all of its assets to, any Person, unless:
(a) the Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, lease, conveyance or disposition
shall have been made, is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia and shall assume by supplemental
indenture hereto all the obligations of the Company under the Securities, this Indenture and
the Registration Rights Agreement;
(b) immediately before and immediately after such transaction, and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing;
(c) each Guarantor, unless such Guarantor is the Person with which the Company has
entered into a transaction under this Section 801, shall have by amendment to its applicable
Note Guarantee confirmed that such Note Guarantee shall apply to the obligations of the
Company or the surviving Person in accordance with the Securities and this Indenture;
(d) immediately after such transaction, and after giving effect thereto, the Person
formed by or surviving any such consolidation or merger, or to which such sale, assignment,
transfer, lease or conveyance or disposition shall have been made (the
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successor) would be
able to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Ratio test
set forth in Section 1007(a); and
(e) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such supplemental
indenture, if one is required by this Section 801, comply with this Section 801 and that all
conditions precedent herein provided for relating to such transaction have been complied
with.
Cash Flow Ratio for purposes of this Section 801 shall be computed as if any such successor
were the Company.
Section 802. Successor Substituted
.
Upon any consolidation or merger, or any sale, assignment, transfer, Lease or conveyance or
other disposition of all or substantially all of the assets, of the Company in accordance with
Section 801, the successor Person formed by such consolidation or into which the Company is merged
or to which such sale, assignment, transfer, Lease, conveyance or other disposition is made shall
succeed to, and be substituted for, 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. When a successor assumes all the obligations of its predecessor under this Indenture, the
Registration Rights Agreement and the Securities, the predecessor shall be released from those
obligations,
provided
that in the case of a transfer by Lease, the predecessor corporation shall
not be released from the payment of principal and interest on 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, 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:
(a) 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;
(b) to add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein or in the Securities conferred upon the Company;
(c) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture;
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provided
that, in each
case, such provisions shall not adversely affect the interests of the Holders in any
material respect;
(d) to secure the Securities, if the Company so elects;
(e) to make any changes necessary to qualify this Indenture under the Trust Indenture
Act in connection with the Exchange Offer or the Shelf Registration Statement; or
(f) to make any other change that does not adversely affect the rights of any Holder.
Section 902. Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in aggregate principal amount of
the Securities then Outstanding, voting together as a single class, by Act of such Holders
delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into one or more 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 waiving or modifying in any manner the rights of the Holders under this Indenture;
provided
,
however
, that no such supplemental indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(a) 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
change the coin or currency in which the principal of any Security or the interest thereon
is payable, or impair the right to institute suit for the enforcement of any such payment
after the Stated Maturity thereof; or
(b) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture; or
(c) amend, change or modify the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control in accordance with Section 1015
after such Change of Control has occurred, including amending, changing or modifying any
definition relating thereto; or
(d) 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
(e) modify any of the provisions of this Section 902 or Section 513, except to increase
the percentage in principal amount of the Outstanding Securities the consent of whose
Holders is required for the relevant action 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.
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It shall not be necessary for any Act of Holders under this Section 902 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 provided with, and (subject to Trust Indenture Act Section 315(a) through 315(d)
and Section 602 hereof) shall be fully protected in relying upon, an Opinion of Counsel and
Officers Certificate, each stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees 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 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 as then in effect.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
indenture trustee or institutional trustee means the Trustee; and
obligor on the Securities and the Note Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Securities and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
Trust Indenture Act reference to another statute or defined by Commission rule under the Trust
Indenture Act have the meanings so assigned to them.
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
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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 and Interest
.
The Company shall duly and punctually pay the principal of 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 shall maintain, in 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. If the Corporate Trust Office is located in New York
City, then it shall be such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The Company shall give
prompt written notice to the Trustee of any change in the location of any 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or agencies (in or
outside of 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 designation;
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 City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and any change in the
location of any such 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 shall, on or before each due
date of the principal of 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 or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the Securities, it shall, on or
before each due date of the principal of or interest on any Securities, deposit with a Paying Agent
a sum in same day funds (or New York Clearing House funds if such deposit is
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made prior to the date
on which such deposit is required to be made) sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons entitled to such
principal or interest and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee of such action or any failure so to act.
The Company shall 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 1003, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of or interest on
Securities in trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) 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 or interest; and
(c) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
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 or interest on any Security and remaining unclaimed for
two years after such principal 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 for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 1004. Corporate Existence
.
Subject to Article Eight, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and that of each Restricted
Subsidiary and the corporate rights (charter and statutory), corporate licenses and corporate
franchises of the Company and its Restricted Subsidiaries, except where a failure to do so, singly
or in the aggregate, is not likely to have a materially adverse effect upon the business, assets,
financial condition or results of operations of the Company and the Restricted Subsidiaries taken
as a whole determined on a consolidated basis in accordance with GAAP;
provided
that the Company
shall not be required to preserve any such existence (except of the Company), right, license or
franchise if the Company or the Restricted Subsidiary concerned
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shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company or such
Restricted Subsidiary and that the loss thereof is not disadvantageous in any material respect to
the Holders.
Section 1005. Payment of Taxes and Other Claims
.
The Company shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all material taxes, assessments and governmental charges levied or imposed
upon it or any Subsidiary or upon the income, profits or property of the Company or any of its
Subsidiaries and (b) all material lawful claims for labor, materials and supplies, which, if
unpaid, might by law become a Lien upon the property of the Company or any Restricted Subsidiary;
provided
,
however
, that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
Section 1006. Maintenance of Properties
.
The Company shall cause all material properties owned by or leased to it or any Restricted
Subsidiary and necessary in the conduct of its business or the business of such Restricted
Subsidiary to be maintained and kept in normal condition, repair and working order, ordinary wear
and tear excepted;
provided
that nothing in this Section 1006 shall prevent the Company or any
Restricted Subsidiary from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of
the Company or the Restricted Subsidiary concerned, or of any officer (or other agent employed by
the Company or any Restricted Subsidiary) of the Company or such Restricted Subsidiary having
managerial responsibility for any such property, desirable in the conduct of the business of the
Company or any Restricted Subsidiary and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
The Company shall provide or cause to be provided, for itself and any Restricted Subsidiaries,
insurance (including appropriate self-insurance) against loss or damage of the kinds customarily
insured against by corporations similarly situated and owning like properties in the same general
areas in which the Company or such Restricted Subsidiaries operate.
Section 1007. Limitation on Indebtedness
.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, incur any Indebtedness (other than Indebtedness between or among any of the Company and
its Restricted Subsidiaries) unless, after giving effect thereto, the Cash Flow Ratio shall be less
than or equal to 7.0 to 1.
(b) So long as no Default would be caused thereby, this Section 1007 shall not prohibit the
incurrence of any of the following (collectively, Permitted Debt):
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(1)
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the incurrence at any time by the Company of Indebtedness under
Credit Facilities (and the incurrence by Restricted Subsidiaries of Guarantees
thereof) in an aggregate principal amount at any one time outstanding pursuant
to this clause (1) (with letters of credit being deemed to have a
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principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) not to exceed $2,225.0 million, less the
aggregate amount of all Net Proceeds of Asset Sales applied by the Company or
any Restricted Subsidiary to permanently repay any such
Indebtedness pursuant to mandatory prepayment requirements of the
instruments or agreements governing such Indebtedness;
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(2)
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the incurrence of Existing Indebtedness;
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(3)
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the incurrence by the Company and the Guarantors of
Indebtedness represented by the Initial Securities and the related Note
Guarantees and the Exchange Securities in respect of such Initial Securities
and the Note Guarantees of such Exchange Securities;
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(4)
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the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capitalized Lease Obligations,
mortgage financings or purchase money obligations, in each case, incurred for
the purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary for fixed or capital
assets, in an aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (4), not to exceed $75.0 million at any time
outstanding;
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(5)
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the incurrence by the Company or any Restricted Subsidiary of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted to be incurred under Section
1007(a) or clauses (2), (3), (4), (5), (10) or (18) of this Section 1007(b);
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(6)
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the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness owing to and held by the Company or
any of its Restricted Subsidiaries; provided, however, that:
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(a) if the Company or any Guarantor is the obligor on such Indebtedness and
such Indebtedness is held by a Person that is not the Company or a
Guarantor, such Indebtedness must be unsecured and expressly subordinated to
the prior payment in full in cash of all obligations with respect to the
Securities, in the case of the Company, or the Note Guarantee, in the case
of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by
an unsubordinated promissory note, unless the obligor under such
Indebtedness is the Company or a Guarantor; and
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(c) (i) any subsequent issuance or transfer of Equity Interests that results
in any such Indebtedness being owed to a Person other than the Company or a
Restricted Subsidiary and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary, shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (6);
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(7)
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the issuance of shares of Preferred Stock by any of the
Companys Restricted Subsidiaries to the Company or to a Guarantor; provided
that (i) any subsequent issuance or transfer of any Equity Interests that
results in such Preferred Stock being held by a Person other than the Company
or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock
to a Person that is not either the Company or a Guarantor shall be deemed, in
each case, to constitute an issuance of such shares of Preferred Stock that was
not permitted by this clause (7);
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(8)
|
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the Note Guarantee by the Company or any of the Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary that was
permitted to be incurred by another provision of this Section 1007;
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(9)
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the incurrence of Monetization Indebtedness;
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(10)
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the incurrence of Acquired Indebtedness (other than
Indebtedness incurred in contemplation of, or in connection with, the
transaction or series of related transactions pursuant to which such Person is
acquired by or otherwise merged into or consolidated with the Company or any
Restricted Subsidiary);
provided
that after giving effect to such transaction,
either
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(a) the Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Cash Flow Ratio test set forth in Section
1007(a), or
(b) the Cash Flow Ratio of the Company and its Restricted Subsidiaries would
be no higher as a result of such transaction;
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(11)
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the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness to the extent the net proceeds thereof are
promptly deposited to satisfy and discharge this Indenture as described in
Section 401;
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(12)
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Indebtedness of the Company or any Restricted Subsidiary (i) in
connection with surety, performance, appeal or similar bonds, completion
guarantees, or similar instruments entered into in the ordinary course of
business or from letters of credit or other obligations in respect of property,
casualty or liability insurance, self-insurance, workers compensation
obligations or similar arrangements and (ii) consisting of the financing of
insurance premiums or take-or-pay obligations contained
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84
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in supply arrangements,
in each case incurred in the ordinary course of business;
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(13)
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Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial institution
of a check, draft
or similar instrument inadvertently (except in the case of daylight
overdrafts such amount need not be inadvertent) drawn against insufficient
funds in the ordinary course of business;
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(14)
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Indebtedness of the Company or any Restricted Subsidiary
arising from agreements for indemnification, earnouts or purchase price
adjustment obligations or similar obligations, or from guarantees or letters of
credit, surety bonds or performance bonds securing any obligation of the
Company or a Restricted Subsidiary pursuant to such an agreement, in each case,
incurred or assumed in connection with the acquisition or disposition of any
business, assets or properties;
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(15)
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cash management obligations and Indebtedness incurred in
respect of netting services, overdraft protection and similar arrangements;
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(16)
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Indebtedness consisting of obligations under deferred
compensation, earn-out or other similar arrangements incurred by the Company or
any Restricted Subsidiary in connection with the Transactions or any
acquisition not prohibited by this Indenture;
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(17)
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Indebtedness under Hedging Obligations;
provided
that such
contracts are not entered into for speculative purposes; or
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(18)
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the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (18), not to exceed $200.0
million.
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For purposes of determining compliance with this Section 1007, in the event that any proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (18) above, or is entitled to be incurred pursuant to Section 1007(a), the
Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in
any manner that complies with this Section 1007. Indebtedness under the Credit Agreement
outstanding on the date on which Securities are first issued under this Indenture shall be deemed
to have been incurred on such date in reliance on the exception provided by clause (1) of Section
1007(b). In addition, (A) any Indebtedness originally classified as
incurred pursuant to clauses
(1) through (18) above may later be reclassified by the Company such that it shall be deemed as
having been incurred pursuant to another of such clauses to the extent that such reclassified
Indebtedness could be incurred pursuant to such new clause at the time of such reclassification and
(B) any Indebtedness originally classified as
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incurred pursuant to Section 1007(a), or pursuant to
Section 1007(b) (2) through (18) may later be reclassified by the Company such that it shall be
deemed as having been incurred pursuant to Section 1007(a) or pursuant to another of such clauses
to the extent that such reclassified Indebtedness could be incurred pursuant to Section 1007(a) or
such new clause at the time of such reclassification.
Notwithstanding any other provision of this Section 1007:
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(A)
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the maximum amount of Indebtedness that may be
incurred pursuant to this Section 1007 shall not be deemed to be
exceeded with respect to any outstanding Indebtedness due solely to the
result of fluctuations in the exchange rates of currencies or changes
in GAAP;
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(B)
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any Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary shall be deemed to be
incurred by such Restricted Subsidiary at the time it becomes a
Restricted Subsidiary;
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(C)
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neither the accrual of interest nor the
accretion of original issue discount (to the extent provided for when
the Indebtedness on which such interest is paid was originally issued)
shall be considered an incurrence of Indebtedness; as applicable; and
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(D)
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the payment of interest in the form of
additional Indebtedness with the same terms and the payment of
dividends on Disqualified Stock or Preferred Stock in the form of
additional shares of the same class of Disqualified Stock (to the
extent provided for when the Indebtedness, Disqualified Stock or
Preferred Stock on which such interest or dividend is paid was
originally issued) shall not be considered an incurrence of
Indebtedness.
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The Company shall not incur any Indebtedness that is subordinate or junior in right of payment
to any other Indebtedness of the Company unless it is subordinate in right of payment to the
Securities to the same extent. No Guarantor shall incur any Indebtedness that is subordinate or
junior in right of payment to any other Indebtedness of such Guarantor unless it is subordinate in
right of payment to such Guarantors Note Guarantee to the same extent. For purposes of the
foregoing, no Indebtedness shall be deemed to be subordinated in right of payment to any other
Indebtedness of the Company or any Guarantor, as applicable, solely by virtue of being unsecured or
by virtue of the fact that the holders of any secured Indebtedness have entered into intercreditor
agreements giving one or more of such holders priority over the other holders in the collateral
held by them.
Section 1008. Limitation on Liens
.
The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien of any kind, except for Permitted
Liens, on or with respect to any of its property or assets, whether owned at the date of this
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Indenture or thereafter acquired, unless (x) in the case of any Lien securing Indebtedness that is
subordinated in right of payment to the Securities, the Securities are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Lien and (y) in the case of any
other Lien, the Securities are equally and ratably secured.
Section 1009. Limitation on Restricted Payments
.
(a) Except as otherwise provided in this Section 1009, the Company shall not, and shall not
permit any Restricted Subsidiary to, make any Restricted Payment if (1) at the time of such
proposed Restricted Payment, a Default or Event of Default shall have occurred and be continuing or
shall occur as a consequence of such Restricted Payment, (2) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto, have been prohibited from incurring
at least $1.00 of additional Indebtedness pursuant to the Cash Flow Ratio test in Section 1007(a)
or (3) immediately after giving effect to such Restricted Payment, the aggregate of all Restricted
Payments that shall have been made since the date of this Indenture would exceed the sum of $100.0
million plus an amount equal to the difference between (i) the Cumulative Cash Flow Credit and (ii)
1.4 multiplied by Cumulative Interest Expense.
For purposes of this Section 1009, the amount of any Restricted Payment, if other than cash,
shall be based upon Fair Market Value.
(b) The foregoing provisions of this Section 1009 shall not prevent:
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(1)
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the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment complied with
the foregoing provisions of this Section 1009;
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(2)
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Permitted Affiliate Payments;
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(3)
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the retirement, redemption, purchase, defeasance or other
acquisition of any shares of the Companys Capital Stock or warrants, rights or
options to acquire Capital Stock of the Company, in exchange for, or out of the
proceeds of a sale (within one year before or 180 days after such retirement,
redemption, purchase, defeasance or other acquisition) of, other shares of the
Companys Capital Stock or warrants, rights or options to acquire Capital Stock
of the Company;
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(4)
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the payment of any dividend by a Restricted Subsidiary to the
holders of its common Equity Interests on a pro rata basis;
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(5)
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repurchases of Equity Interests in a cashless transaction
deemed to occur upon exercise or vesting of restricted stock, stock options or
warrants;
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(6)
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the direct or indirect payment by the Company or a Restricted
Subsidiary to redeem, purchase, repay, defease or otherwise acquire or retire
for value the Indebtedness of Rainbow National Services, LLC existing prior to
the date of this Indenture;
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(7)
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the payment of cash in lieu of the issuance of fractional
shares or scrip in connection with the exercise of warrants, options or other
securities convertible into or exercisable for Capital Stock of the Company;
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(8)
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the repurchase, retirement or other acquisition or retirement
for value of Capital Stock of the Company held by any future, present or former
employee or director of the Company or any of its Restricted Subsidiaries or
the estate, heirs or legatees of, or any entity controlled by, any such
employee or director, pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement in
connection with the termination of such persons employment for any reason
(including by reason of death or disability);
provided, however,
that the
aggregate Restricted Payments made under this clause (8) does not exceed in any
calendar year the sum of (A) $1.5 million (with unused amounts in any calendar
year being carried over to succeeding calendar years subject to a maximum
(without giving effect to the following proviso) of $5.0 million in any
calendar year) and (B) the cash proceeds of key man life insurance policies on
the life of any such person received by the Company and its Restricted
Subsidiaries after the date of this Indenture; and
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(9)
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Restricted Payments made in connection with the Transactions as
described in this offering memorandum.
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For purposes of determining the aggregate permissible amount of Restricted Payments in
accordance with clause (3) of Section 1009(a), all amounts expended pursuant to Section 1009(b)(1)
shall be included and all amounts expended or received pursuant to Sections 1009(b)(2) through (9)
shall be excluded;
provided
,
however
, that amounts paid pursuant to Section 1009(b)(1) shall be
included only to the extent that such amounts were not previously included in calculating
Restricted Payments.
If the Company or a Restricted Subsidiary makes a Restricted Payment that at the time of the
making of such Restricted Payment, would be in the Companys good faith determination permitted
under the requirements of this Section 1009, such Restricted Payment shall be deemed to have been
made in compliance with this Section 1009 notwithstanding any subsequent adjustments made in good
faith to the Companys financial statements affecting the calculations set forth above for any
period.
For the purposes of this Section 1009, the net proceeds from the issuance of shares of the
Companys Capital Stock upon conversion of Indebtedness shall be deemed to be an amount equal to
the accreted value of such Indebtedness on the date of such conversion and the additional
consideration, if any, the Company receives upon such conversion, minus any cash payment on account
of fractional shares (such consideration, if in property other than cash, to be determined by the
Companys board of directors, whose good faith determination shall be conclusive).
88
Section 1010. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
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(1)
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pay dividends or make any other distributions on its Capital
Stock (or with respect to any other interest or participation in, or measured
by, its profits) to the Company or any of its Restricted Subsidiaries or pay
any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
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(2)
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make loans or advances to the Company or any of its Restricted
Subsidiaries; or
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(3)
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transfer any of its properties or assets to the Company or any
of its Restricted Subsidiaries.
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(b)
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The restrictions set forth in Section 1010(a) shall not apply to encumbrances or
restrictions:
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(1)
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existing under, by reason of or with respect to the Credit
Agreement, Existing Indebtedness or any other agreements in effect on the date
of this Indenture and any amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacements or refinancings thereof,
provided
, that the encumbrances and restrictions in any such amendments,
modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a
whole, than those contained in the Credit Agreement, Existing Indebtedness or
such other agreements, as the case may be, as in effect on the date of this
Indenture;
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(2)
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set forth in this Indenture, the Securities and the Note
Guarantees;
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(3)
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existing under, by reason of or with respect to applicable law,
rule, regulation or order;
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(4)
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with respect to any Person or the property or assets of a
Person acquired by the Company or any of its Restricted Subsidiaries existing
at the time of such acquisition and not incurred in connection with or in
contemplation of such acquisition, which encumbrance or restriction is not
applicable to any Person or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired and any
amendments, modifications, restatements, renewals, extensions, supplements,
refundings, replacements or refinancings thereof,
provided
, that the
encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements, or
refinancings are not materially more
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89
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restrictive, taken as a whole, than those in effect on the date of the
acquisition;
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(5)
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in the case of Section 1010(a)(3):
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(A)
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that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset;
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(B)
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existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary thereof
not otherwise prohibited by this Indenture; or
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(C)
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arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, materially detract from the value of
property or assets of the Company or any Restricted Subsidiary thereof;
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(6)
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existing under, by reason of or with respect to any agreement
for the sale or other disposition of all or substantially all of the Capital
Stock of, or property and assets of, a Restricted Subsidiary that restrict
distributions by that Restricted Subsidiary pending such sale or other
disposition;
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(7)
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restrictions on cash or other deposits or net worth imposed by
customers or lessors or required by insurance, surety or bonding companies, in
each case, under contracts, leases or other agreements entered into in the
ordinary course of business; and
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(8)
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existing under, by reason of or with respect to customary
supermajority voting provisions and customary provisions with respect to the
disposition or distribution of assets or property, in each case contained in
joint venture, partnership, or limited liability company agreements.
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Section 1011. Transactions with Affiliates
.
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, effect any
transaction with any Affiliate of the Company that is not a Restricted Subsidiary, having a value,
or for consideration having a value, in excess of $20.0 million unless the Companys or such
Restricted Subsidiarys board of directors (or the person duly authorized to perform similar
functions) shall make a good faith determination that the terms of such transaction are, taken as a
whole, no less favorable to the Company or such Restricted Subsidiary, as the case may be than
would at the time be obtainable for a comparable transaction in arms-length dealing with an
unrelated third party;
provided
,
however
, that this provision shall not apply to:
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(1)
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overhead and other ordinary course allocations of costs and
services on a reasonable basis;
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(2)
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allocations of tax liabilities and other tax-related items
among the Company and its Affiliates based principally upon the financial
income, taxable income, credits and other amounts directly related to the
respective parties, to the extent that the share of such liabilities and other
items allocable to the Company and its Restricted Subsidiaries shall not exceed
the amount that such Persons would have been responsible for as a direct
taxpayer;
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(3)
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Permitted Investments and Restricted Payments permitted under
Section 1009;
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(4)
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matters described in or contemplated by the Form 10 of the
Company, as amended or modified from time to time, or other reports filed by
the Company with the Commission;
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(5)
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contracts or arrangements between the Company and/or any of its
Subsidiaries and any of its Affiliates regarding coordination and/or joint
defense of any litigation or any other action, suit, proceeding, claim or
dispute before any courts, arbitrators or governmental authority;
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(6)
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contracts or arrangements to sell or buy advertising between
the Company and/or any of its Subsidiaries and any of its Affiliates;
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(7)
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affiliation agreements or arrangements between the Company
and/or its Subsidiaries and any of its Affiliates;
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(8)
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contracts or arrangements entered into in the ordinary course
of business providing for the acquisition or provision of goods or services
(including guarantees otherwise permissible under any Credit Facility, leases
or licenses of property, equipment, facilities and other real or personal
property) (i) between the Company or any of its Restricted Subsidiaries and any
Unrestricted Subsidiary or (ii) under which the Company or any of its
Restricted Subsidiaries may be jointly and severally liable with any of its
Unrestricted Subsidiaries as to which costs are allocated based on cost, usage
or other reasonable method of allocation (or are otherwise immaterial);
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(9)
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contracts or arrangements between the Company and/or any of its
Subsidiaries and any Affiliates regarding transponder usage rights;
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(10)
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film and/or content programming allocation contracts or
arrangements between the Company and/or any of its Restricted Subsidiaries and
any Unrestricted Subsidiary;
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(11)
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contracts or arrangements between the Company and/or any of its
Restricted Subsidiaries and any Unrestricted Subsidiary regarding the use of
intellectual property;
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91
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(12)
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contracts or arrangements between the Company and/or any of its
Restricted Subsidiaries and any Unrestricted Subsidiary for the purpose of
securing (a) production and product related arrangements or (b) arrangements
for the compensation of talent through third-party intermediaries;
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(13)
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the Distribution Transaction Agreements (as defined in the
Credit Agreement);
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(14)
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contracts or arrangements between Company and/or any of its
Subsidiaries and any of its Affiliates approved in accordance with the
Companys policies that are not otherwise included in or contemplated by any of
the foregoing items;
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(15)
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contracts or arrangements between Company and/or any of its
Subsidiaries and any Dolan Family Interests approved in accordance with the
Companys policies that are not otherwise included in or contemplated by any of
the foregoing items; and
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(16)
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amendments, modifications, renewals or replacements from time
to time of any of the contracts, arrangements, leases, services or other
matters referred to or contemplated by any of the foregoing items.
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Section 1012. Designation of Restricted and Unrestricted Subsidiaries
.
(a) Unless designated as an Unrestricted Subsidiary, each newly acquired or created Subsidiary
or a Restricted Subsidiary shall be a Restricted Subsidiary. Any Restricted Subsidiary may be
designated by the Company as an Unrestricted Subsidiary;
provided
that:
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(1)
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any Guarantee by the Company or any Restricted Subsidiary
thereof of any Indebtedness of the Subsidiary being so designated shall be
deemed to be an incurrence of Indebtedness by the Company or such Restricted
Subsidiary (or both, if applicable) at the time of such designation, and such
incurrence of Indebtedness would be permitted under Section 1007;
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(2)
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the aggregate Fair Market Value of all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary being so
designated (including any Guarantee by the Company or any Restricted Subsidiary
of any Indebtedness of such Subsidiary) shall be deemed to be a Restricted
Investment made as of the time of such designation and that such Investment
would be permitted under Section 1009;
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(3)
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such Subsidiary does not hold any Liens (other than Permitted
Liens) on any property of the Company or any Restricted Subsidiary thereof;
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92
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(4)
|
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the Subsidiary being so designated:
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(a)
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is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted
Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company unless the
Company and the Restricted Subsidiaries would have been permitted to be
a party to such agreement, contract, arrangement or understanding under
Section 1011;
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(b)
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is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (i) to subscribe for additional Equity Interests or
(ii) to maintain or preserve such Persons financial condition or to
cause such Person to achieve any specified levels of operating results;
and
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(c)
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has not Guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company
or any of its Restricted Subsidiaries, except to the extent such
Guarantee or credit support would be released upon such designation;
and
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(5)
|
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no Default or Event of Default would be in existence following
such designation.
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(b) Any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee an Officers Certificate certifying that such
designation complied with the preceding conditions and was permitted by this Indenture. If, at any
time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements described in
Section 1012(a)(4) above and such failure continues for a period of 90 days, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness,
Investments, or Liens on the property, of such Subsidiary shall be deemed to be incurred or made by
a Restricted Subsidiary as of such date and, if such Indebtedness, Investments or Liens are not
permitted to be incurred or made as of such date under this Indenture, the Company shall be in
violation of this Section 1012.
(c) The Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary;
provided
that:
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(1)
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such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if such
Indebtedness is permitted under Section 1007, calculated on a pro forma basis
as if such designation had occurred at the beginning of the applicable
four-quarter reference period;
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(2)
|
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all outstanding Investments owned by such Unrestricted
Subsidiary shall be deemed to be made as of the time of such designation and
such Investments shall only be permitted if such Investments would be permitted
under Section 1009;
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(3)
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all Liens upon property or assets of such Unrestricted
Subsidiary existing at the time of such designation would be permitted under
Section 1008; and
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(4)
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no Default or Event of Default would be in existence following
such designation.
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Section 1013. Guarantees
.
(a) The Company shall not permit any of its Restricted Subsidiaries (other than any
Insignificant Subsidiary), directly or indirectly, to Guarantee or pledge any assets to secure the
payment of any other Indebtedness of the Company or any of the Companys other Restricted
Subsidiaries unless such Restricted Subsidiary (x) is a Guarantor under this Indenture or (y)
becomes a Guarantor under this Indenture and simultaneously executes and delivers a supplemental
indenture providing for the Guarantee of the payment of the Securities by such Restricted
Subsidiary,
provided
that such Guarantee shall be senior to or
pari passu
with such Subsidiarys
Guarantee of such other Indebtedness. In addition, in the event that any Restricted Subsidiary
that is an Insignificant Subsidiary ceases to be an Insignificant Subsidiary, then such Restricted
Subsidiary must become a Guarantor and execute a supplemental indenture and, if requested, deliver
an opinion of counsel to the Trustee.
(b) A Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the surviving Person),
another Person, other than the Company or another Guarantor,
provided
that immediately after giving
effect to that transaction, no Default or Event of Default exists.
(c) The Note Guarantee of a Guarantor shall be released:
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(1)
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in connection with any sale or other disposition of all of the
Capital Stock of that Guarantor to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary, if the sale of all
such Capital Stock of that Guarantor complies with Section 1014;
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(2)
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if the Company properly designates any Restricted Subsidiary
that is a Guarantor as an Unrestricted Subsidiary under this Indenture; or
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(3)
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upon the release or discharge of the Guarantee (including the
Guarantee under the Credit Agreement) which resulted in the creation of such
Note Guarantee pursuant to this Section 1013 (except a discharge or release by
or as a result of payment under such Guarantee);
provided
that such Guarantor
does not have any preferred stock outstanding at such time that is not held by
the Company or any Guarantor.
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Section 1014. Asset Sales
.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
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(1)
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the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the assets or Equity Interests issued or sold or otherwise
disposed of;
provided
that this clause (1) shall not apply to an Asset Sale
resulting solely from a foreclosure or sale by a third party upon assets or
property subject to a Lien not prohibited by this Indenture;
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(2)
|
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where such Fair Market Value exceeds $50.0 million, the
Companys determination of such Fair Market Value is set forth in an Officers
Certificate delivered to the Trustee; and
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(3)
|
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at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents
or Replacement Assets or a combination thereof. For purposes of this
provision, each of the following shall be deemed to be Cash Equivalents:
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A.
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any liabilities (as shown on the Companys or
such Restricted Subsidiarys most recent balance sheet, or would be
shown on the Companys or such Restricted Subsidiarys balance sheet on
the date of such Asset Sale) of the Company or any Restricted
Subsidiary (other than contingent liabilities, Indebtedness that is by
its terms subordinated to the Securities or any Note Guarantee and
liabilities to the extent owed to the Company or any Affiliate of the
Company) that are assumed by the transferee of any such assets pursuant
to a written agreement that releases the Company or such Restricted
Subsidiary from further liability therefor; and
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B.
|
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any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from such
transferee that are converted (including by way of any Monetization
Transaction) by the Company or such Restricted Subsidiary into cash (to
the extent of the cash received in that conversion) within 180 days of
such Asset Sale.
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(b) The Company or any of its Restricted Subsidiaries may use the Net Proceeds of any Asset
Sale in any manner that is not prohibited by this Indenture.
Section 1015. Offer to Repurchase upon a Change of Control
.
(a) Upon the occurrence of a Change of Control, each Holder shall have the right to require
the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that
Holders Securities pursuant to the offer described below (the Change of Control Offer) at a
repurchase price in cash (the Change of Control Payment) equal to 101%
95
of the aggregate principal amount of Securities repurchased, plus accrued and unpaid interest
thereon to the Change of Control Payment Date (as defined below).
(b) Within 60 days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of Control and
offering to repurchase Securities outstanding on a date (the Change of Control Payment Date)
specified in such notice, which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawful:
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(1)
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accept for payment all Securities or portions thereof properly
tendered pursuant to the Change of Control Offer;
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(2)
|
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deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions thereof so tendered;
and
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(3)
|
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deliver or cause to be delivered to the Trustee the Securities
so accepted together with an Officers Certificate stating the aggregate
principal amount of Securities or portions thereof being purchased by the
Company.
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(d) The Paying Agent shall promptly mail or wire transfer to each Holder of Securities so
tendered the Change of Control Payment for such Securities, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security
equal in principal amount to any unpurchased portion of the Securities surrendered, if any;
provided
that each such new Security shall be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof.
(e) This Section 1015 shall be applicable regardless of whether any other provisions of this
Indenture are applicable, so long as any Securities are outstanding. Except as described above
with respect to a Change of Control, this Indenture does not contain provisions that permit the
Holders of the Securities to require that the Company repurchase or redeem the Securities in the
event of a takeover, recapitalization or similar transaction.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Securities as a result of a Change of Control.
To the extent that the provisions of any securities laws or regulations conflict with this Section
1015, the Company shall comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under the Change of Control provisions of this Indenture
by virtue of such compliance.
(g) The Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 1015 applicable to a Change
of Control Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
96
Section 1016. Suspension of Covenants Upon Investment Grade Ratings
.
(a) During any period of time that the Securities maintain an Investment Grade Rating from
both Rating Agencies and no Default or Event of Default shall have occurred and be continuing (the
foregoing conditions being referred to collectively as the Suspension Condition), the Company and
its Restricted Subsidiaries shall not be subject to Sections 801(b), 801(d), 1007, 1009, 1010,
1011, 1017 and 1108 (collectively, the Suspended Covenants).
(b) If the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants
with respect to the Securities for any period of time as a result of the foregoing and,
subsequently, one or both Rating Agencies withdraw their Investment Grade Rating or downgrade the
Investment Grade Rating assigned to the Securities such that the Securities no longer have an
Investment Grade Rating from both Rating Agencies, then the Company and each of its Restricted
Subsidiaries shall thereafter again be subject to the Suspended Covenants. Compliance with the
Suspended Covenants with respect to Restricted Payments made after the time of such withdrawal or
downgrade shall be calculated in accordance with Section 1009 as if such covenant had been in
effect during the entire period of time from the date of this Indenture.
Section 1017. Limitation on Issuances and Sales of Equity Interests in Restricted
Subsidiaries
.
The Company shall not transfer, convey, sell, lease or otherwise dispose of, and shall not
permit any of its Restricted Subsidiaries to issue, transfer, convey, sell, lease or otherwise
dispose of, any Equity Interests in any Restricted Subsidiary to any Person (other than the Company
or a Restricted Subsidiary or shares of its Capital Stock constituting directors qualifying shares
or issuances of shares of Capital Stock of foreign Restricted Subsidiaries to foreign nationals, to
the extent required by applicable law), except:
(a) if, immediately after giving effect to such issuance, transfer, conveyance, sale, lease or
other disposition, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect to such issuance or sale would have
been permitted to be made under Section 1009 if made on the date of such issuance or sale; or
(b) sales of Equity Interests of a Restricted Subsidiary by the Company or a Restricted
Subsidiary.
Section 1018. [RESERVED]
.
Section 1019. Statement as to Compliance
.
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year
ending after December 31, 2011, a brief certificate of its principal executive officer, principal
financial officer or principal accounting officer stating whether, to such officers knowledge, the
Company is in compliance with all covenants and conditions under this Indenture. For purposes of
this Section 1019, such compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
97
Section 1020. Waiver of Certain Covenants
.
The Company may omit in any particular instance to comply with any covenant or condition set
forth in Sections 1007 through 1017 if, before or after the time for such compliance, the Holders
of a majority in aggregate principal amount of the Outstanding Securities, by Act of such Holders,
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.
Section 1021. Statement by Officers as to Default
.
The Company shall deliver to the Trustee, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any 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.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Notices to Trustee
.
If the Company elects to redeem Securities pursuant to the optional redemption provisions of
Section 1107 hereof, it shall furnish to the Trustee, at least 30 days but not more than 60 days
before a Redemption Date, an Officers Certificate setting forth (i) the Section of this Indenture
pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount
of Securities to be redeemed and (iv) the Redemption Price.
Section 1102. Selection of Securities to Be Redeemed
.
(a) If less than all of the Securities are to be redeemed at any time, the Trustee shall
select the Securities to be redeemed among the Holders of the Securities in compliance with the
requirements of the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not so listed, on a
pro rata
basis, by lot or in accordance with
any other method the Trustee considers fair and appropriate. In the event of partial redemption by
lot, the particular Securities to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the principal amount
at maturity thereof to be redeemed. No Securities in amounts of $2,000 or less shall be redeemed
in part. Securities and portions of Securities selected for redemption shall be in amounts of
$1,000 or integral multiples thereof; provided that the unredeemed portion of Securities held by a
Holder after giving effect to the redemption shall not
98
be in an amount of less than $2,000; and
provided further
that if all of the Securities of a
Holder are to be redeemed, the entire outstanding amount of Securities held by such Holder, even if
not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
Section 1103. Notice of Redemption
.
(a) At least 30 days but not more than 60 days before a Redemption Date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose
Securities are to be redeemed at its registered address.
The notice shall identify the Securities (including the CUSIP or ISIN numbers) to be redeemed
and shall state:
(i) the Redemption Date;
(ii) if any Security is being redeemed in part, the portion of the principal amount at
maturity of such Security to be redeemed and that, after the Redemption Date upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed
portion of the original Security shall be issued in the name of the Holder thereof upon
cancellation of the original Security;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and become due on the date fixed for redemption;
(v) that, unless the Company defaults in making such redemption payment, interest, if
any, on Securities called for redemption ceases to accrue on and after the Redemption Date;
and
(vi) that no representation is made as to the correctness or accuracy of the ISIN or
CUSIP number, if any, listed in such notice or printed on the Securities.
(b) At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense;
provided
,
however
, that the Company shall have delivered to the Trustee,
at least 35 days prior to the Redemption Date, an Officers Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice, if mailed in the manner provided herein shall be presumed to have
been given, whether or not the Holder receives such notice.
Section 1104. Effect of Notice of Redemption
.
A notice of redemption may be conditional. Once notice of redemption is mailed in accordance
with Section 1103 hereof, provided that any conditions to such redemption are satisfied, Securities
called for redemption shall become irrevocably due and payable on the Redemption Date at the
Redemption Price.
99
Section 1105. Deposit of Redemption Price
.
(a) Not later than 11:00 am on the Redemption Date, the Company shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest and
Liquidated Damages, if any, on all Securities to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price of, and
accrued interest and Liquidated Damages, if any, on, all Securities to be redeemed.
(b) If the Company complies with the provisions of the preceding paragraph, on and after the
Redemption Date, interest shall cease to accrue on the Securities or the portions of Securities
called for redemption. If a Security is redeemed on or after a Regular Record Date but on or prior
to the related interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Security was registered at the close of business on such Regular Record
Date. If any Security called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided
in the Securities and in Section 1001 hereof.
Section 1106. Securities Redeemed in Part
.
Upon surrender of a Security that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company a new Security equal in principal
amount to the unredeemed portion of the Security surrendered. No Securities in denominations of
$2,000 or less shall be redeemed in part.
Section 1107. Optional Redemption
.
(a) On or after July 15, 2016, the Company may redeem Securities, at its option in whole or in
part at any time and from time to time, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest thereon, to the applicable
Redemption Date, if redeemed during the twelve month period beginning on July 15 of the years
indicated below:
|
|
|
|
|
Year
|
|
Percentage
|
|
2016
|
|
|
103.875
|
%
|
2017
|
|
|
102.583
|
%
|
2018
|
|
|
101.292
|
%
|
2019 and thereafter
|
|
|
100.000
|
%
|
|
|
|
(b)
|
|
Each redemption price provided for in this Section 1107 shall be referred to herein as the
Redemption Price. Any redemption pursuant to this Section 1107 shall be made pursuant to the
provisions of Sections 1101 through 1106 hereof.
|
100
Section 1108. Repurchase at the Option of Holders
.
In the event that, pursuant to Section 1015, the Company shall be required to commence an
offer to all Holders to purchase all or a portion of their respective Securities (a Repurchase
Offer), they shall follow the procedures specified in such Sections and, to the extent not
inconsistent therewith, the procedures specified below.
The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, except to the extent that a longer period is required by
applicable law (the Offer Period). No later than three Business Days after the termination of
the Offer Period (the Purchase Date), the Company shall purchase the principal amount of
Securities required to be purchased pursuant to 1015 hereof (the Offer Amount) or, if less than
the Offer Amount has been tendered, all Securities tendered in response to the Repurchase Offer.
Payment for any Securities so purchased shall be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a
Security is registered at the close of business on such record date, and no additional interest
shall be payable to Holders who tender Securities pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Securities pursuant to the
Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall
govern the terms of the Repurchase Offer, shall state:
(i) that the Repurchase Offer is being made pursuant to this Section 1108 and Section
1015 hereof, and the length of time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Security not tendered or accepted for payment shall continue to accrue
interest;
(iv) that, unless the Company defaults in making such payment, any Security (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest after the Purchase Date;
(v) that Holders electing to have a Security purchased pursuant to a Repurchase Offer
may elect to have Securities purchased in integral multiples of $2,000 only and integral
multiples of $1,000 in excess thereof;
(vi) that Holders electing to have a Security purchased pursuant to any Repurchase
Offer shall be required to surrender the Security, with the form entitled Option of Holder
to Elect Purchase on the reverse of the Security completed, or transfer by book-entry
transfer, to the Company, a depositary, if appointed by the
101
Company, or a Paying Agent at the address specified in the notice at least three days
before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their election if the Company, a
depositary, if appointed by the Company, or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security the Holder
delivered for purchase and a statement that such Holder is withdrawing his election to have
such Security purchased;
(viii) that, if the aggregate amount of Securities surrendered by Holders exceeds the
Offer Amount, the Trustee shall select the Securities to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Trustee so that only Securities
in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be
purchased); and
(ix) that Holders whose Securities were purchased only in part shall be issued new
Securities equal in principal amount to the unpurchased portion of the Securities
surrendered (or transferred by book-entry transfer).
On the Purchase Date, the Company shall, to the extent lawful accept for payment on a pro rata
basis to the extent necessary, the Offer Amount of Securities (or portions thereof) tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been tendered, all
Securities tendered, and shall deliver to the Trustee an Officers Certificate stating that such
Securities (or portions thereof) were accepted for payment by the Company in accordance with the
terms of this Section 1108. The Company, a depositary, if appointed by the Company, or the Paying
Agent, as the case may be, shall promptly (but in any case not later than three days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of
Securities tendered by such Holder, as the case may be, and accepted by the Company for purchase,
and the Company shall promptly issue a new Security. The Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Security to such Holder, in a principal
amount at maturity equal to any unpurchased portion of the Security surrendered. Any Security not
so accepted shall be promptly mailed or delivered by the Company to the respective Holder thereof.
The Company shall publicly announce the results of the Repurchase Offer on the Purchase Date.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Securities pursuant to a Repurchase Offer. To
the extent that the provisions of any securities laws or regulations conflict with 1015 or 1108,
the Company shall comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under 1015 or 1108 by virtue of such compliance.
102
ARTICLE TWELVE
NOTE GUARANTEES
Section 1201. Note Guarantee
.
(a) Subject to this Article Twelve, each of the Guarantors hereby, jointly and severally, and
fully and unconditionally, guarantees to each Holder and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of, this Indenture, the Securities or the
obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any,
and interest on the Securities shall be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any,
and interest on the Securities, if lawful (subject in all cases to any applicable grace period
provided herein), and all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder shall be promptly paid in full, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal of any Securities or any of such
other obligations, the same shall be promptly paid in full when due in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that, to the maximum extent permitted under applicable law,
their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery
of any judgment against the Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to
Section 507, each Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever and covenants that
this Note Guarantee shall not be discharged except by complete performance of the obligations
contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to the Company or the Guarantors, any amount paid by any of them to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five for the purposes of
this Note Guarantee, notwithstanding any stay, injunction or other
103
prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such obligations as provided in Article Five hereof,
such obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.
Section 1202. Limitation on Guarantor Liability
.
Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is
the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent
applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to its
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor shall be limited to the maximum
amount as shall, after giving effect to all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Note Guarantee or this Article Twelve,
result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent
transfer or conveyance or such an unlawful shareholder distribution.
Section 1203. Execution and Delivery of Note Guarantee
.
(a) To evidence its Note Guarantee set forth in Section 1201, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form included in
Exhibit B
shall be endorsed by an Officer or member of such Guarantor by manual or facsimile signature on
each Security authenticated and delivered by the Trustee.
(b) Each Guarantor hereby agrees that its Note Guarantee set forth in Section 1201 shall
remain in full force and effect notwithstanding any failure to endorse on each Security a notation
of such Note Guarantee.
(c) If an Officer or member of a Guarantor whose signature is on a Note Guarantee no longer
holds that office at the time the Trustee authenticates the Security on which a Note Guarantee is
endorsed, such Note Guarantee shall be valid nevertheless.
(d) The delivery of any Security by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.
(e) If required by Section 1013, the Company shall cause such Subsidiaries to execute
supplemental indentures to this Indenture and notations of Note Guarantee in accordance with
Section 1013 and this Article Twelve, to the extent applicable.
* * * * *
104
This Indenture may be signed in any number of counterparts with the same effect as if the
signatures to each counterpart were upon a single instrument, and all such counterparts together
shall be deemed an original of this Indenture.
105
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
|
|
|
|
|
|
AMC NETWORKS INC.
|
|
|
By:
|
/s/ Joshua Sapan
|
|
|
|
Name: Joshua Sapan
|
|
|
|
Title: Authorized Signatory
|
|
|
|
11 PENN TV, LLC
AMC FILM HOLDINGS LLC
AMC TELEVISION PRODUCTIONS LLC
AMERICAN MOVIE CLASSICS COMPANY LLC
AMERICAN MOVIE CLASSICS IV HOLDING CORPORATION
CASSIDY HOLDINGS, INC.
DIGITAL STORE LLC
IFC ENTERTAINMENT HOLDINGS LLC
IFC ENTERTAINMENT LLC
IFC FILMS LLC
IFC IN THEATERS LLC
IFC PRODUCTIONS I L.L.C.
IFC THEATRES CONCESSIONS LLC
IFC THEATRES, LLC
LS VOD COMPANY LLC
LS VOD HOLDINGS LLC
RAINBOW DBS COMPANY LLC
RAINBOW DBS HOLDINGS, INC.
RAINBOW FILM HOLDINGS LLC
RAINBOW MEDIA ENTERPRISES, INC.
RAINBOW MEDIA GLOBAL LLC
RAINBOW MEDIA HOLDINGS LLC
RAINBOW NATIONAL SERVICES LLC
RAINBOW NATIONAL SPORTS HOLDINGS LLC
RAINBOW NETWORK COMMUNICATIONS
RAINBOW PROGRAMMING HOLDINGS LLC
RMH GE HOLDINGS I, INC.
RMH GE HOLDINGS II, INC.
RMH GE HOLDINGS III, INC.
RNC HOLDING CORPORATION
RNC II HOLDING CORPORATION
RNS CO-ISSUER CORPORATION
SELECTS VOD LLC
SPORTS ON DEMAND LLC
SUNDANCE CHANNEL ASIA LLC
SUNDANCE CHANNEL EUROPE LLC
|
AMC
Networks Inc. Indenture
|
|
|
|
|
|
|
|
SUNDANCE CHANNEL L.L.C.
THE INDEPENDENT FILM CHANNEL LLC
TWD PRODUCTIONS II LLC
TWD PRODUCTIONS LLC
WE TV ASIA LLC
WE: WOMENS ENTERTAINMENT LLC
WEDDING CENTRAL LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Joshua Sapan
|
|
|
|
Name: Joshua Sapan
|
|
|
|
Title: Authorized Signatory
|
|
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
|
|
By:
|
/s/ John J. Doherty
|
|
|
|
Name: John J. Doherty
|
|
|
|
Title: Vice President
|
|
|
EXHIBIT A
RESTRICTED SUBSIDIARIES
|
|
|
11 PENN TV, LLC
|
|
Delaware
|
AMC FILM HOLDINGS LLC
|
|
Delaware
|
AMC TELEVISION PRODUCTIONS LLC
|
|
Delaware
|
AMERICAN MOVIE CLASSICS COMPANY LLC
|
|
New York
|
AMERICAN MOVIE CLASSICS IV HOLDING CORPORATION
|
|
Delaware
|
CASSIDY HOLDINGS, INC.
|
|
Delaware
|
DIGITAL STORE LLC
|
|
Delaware
|
IFC ENTERTAINMENT HOLDINGS LLC
|
|
Delaware
|
IFC ENTERTAINMENT LLC
|
|
Delaware
|
IFC FILMS LLC
|
|
Delaware
|
IFC IN THEATERS LLC
|
|
Delaware
|
IFC PRODUCTIONS I L.L.C.
|
|
Delaware
|
IFC THEATRES CONCESSIONS LLC
|
|
Delaware
|
IFC THEATRES, LLC
|
|
Delaware
|
LS VOD COMPANY LLC
|
|
Delaware
|
LS VOD HOLDINGS LLC
|
|
Delaware
|
RAINBOW DBS COMPANY LLC
|
|
Delaware
|
RAINBOW DBS HOLDINGS, INC.
|
|
New York
|
RAINBOW FILM HOLDINGS LLC
|
|
Delaware
|
RAINBOW MEDIA ENTERPRISES, INC.
|
|
Delaware
|
RAINBOW MEDIA GLOBAL LLC
|
|
Delaware
|
RAINBOW MEDIA HOLDINGS LLC
|
|
Delaware
|
RAINBOW NATIONAL SERVICES LLC
|
|
Delaware
|
RAINBOW NATIONAL SPORTS HOLDINGS LLC
|
|
Delaware
|
RAINBOW NETWORK COMMUNICATIONS
|
|
New York
|
RAINBOW PROGRAMMING HOLDINGS LLC
|
|
Delaware
|
RMH GE HOLDINGS I, INC.
|
|
Delaware
|
RMH GE HOLDINGS II, INC.
|
|
Delaware
|
RMH GE HOLDINGS III, INC.
|
|
Delaware
|
RNC HOLDING CORPORATION
|
|
Delaware
|
RNC II HOLDING CORPORATION
|
|
Delaware
|
RNS CO-ISSUER CORPORATION
|
|
Delaware
|
SELECTS VOD LLC
|
|
Delaware
|
SPORTS ON DEMAND LLC
|
|
Delaware
|
SUNDANCE CHANNEL ASIA LLC
|
|
Delaware
|
SUNDANCE CHANNEL EUROPE LLC
|
|
Delaware
|
SUNDANCE CHANNEL L.L.C.
|
|
Delaware
|
SUNDANCE CHANNEL (UK) LIMITED
|
|
United Kingdom
|
THE INDEPENDENT FILM CHANNEL LLC
|
|
Delaware
|
TWD PRODUCTIONS II LLC
|
|
Delaware
|
TWD PRODUCTIONS LLC
|
|
Delaware
|
WE TV ASIA LLC
|
|
Delaware
|
A-1
|
|
|
WE: WOMENS ENTERTAINMENT LLC
|
|
Delaware
|
WEDDING CENTRAL LLC
|
|
Delaware
|
A-2
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in and
subject to the provisions in the Indenture dated, as of June 30, 2011 (the
Indenture
) among AMC
Networks Inc., a Delaware corporation (the
Company
), the Guarantors and U.S. Bank National
Association, as trustee (the
Trustee
), (a) the due and punctual payment of the principal of,
premium, if any, and interest on the Securities (as defined in the Indenture), whether at maturity,
by acceleration, redemption or otherwise, and the due and punctual payment of interest on overdue
principal, premium, if any, and interest on the Securities, if lawful (subject in all cases to any
applicable grace periods provided in the Indenture and the Securities), and the due and punctual
performance of all other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and the Securities and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, the same shall be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Each Holder, by accepting the same, (a)
agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of
such Holder for such purpose.
Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is
the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent
applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to its
Note Guarantee.
[SIGNATURE PAGE FOLLOWS]
B-1
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually
or by facsimile by its duly authorized officers.
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[GUARANTORS]
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By:
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Name:
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Title:
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B-2
Exhibit
99.3
EXECUTION VERSION
CREDIT AGREEMENT
dated as of June 30, 2011
among
AMC NETWORKS INC.
,
as the Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER
,
as Restricted Subsidiaries,
THE LENDERS PARTY HERETO
,
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
,
as Administrative Agent, Collateral Agent and L/C Issuer
J.P. MORGAN SECURITIES LLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Joint Lead Arrangers and Joint Bookrunners
BNP PARIBAS
,
CITICORP NORTH AMERICA, INC.
,
and
THE BANK OF NOVA SCOTIA
as Joint Bookrunners and Co-Documentation Agents
BANK OF AMERICA, N.A.,
as Syndication Agent
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS AND ACCOUNTING MATTERS
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Section 1.01 Certain Defined Terms
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1
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Section 1.02 Other Interpretive Provisions
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37
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Section 1.03 Accounting Terms
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38
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Section 1.04 Rounding
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39
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Section 1.05 Times of Day
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39
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Section 1.06 Letter of Credit Amounts
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39
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Section 1.07 Currency Equivalents Generally
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39
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ARTICLE II
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THE COMMITMENTS AND CREDIT EXTENSIONS
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Section 2.01 The Loans
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39
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Section 2.02 Borrowings, Conversions and Continuations of Loans
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40
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Section 2.03 Letters of Credit
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42
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Section 2.04 Prepayments
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49
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Section 2.05 Termination or Reduction of Commitments
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51
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Section 2.06 Repayment of Loans
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52
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Section 2.07 Interest
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55
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Section 2.08 Fees
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55
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Section 2.09 Computation of Interest and Fees
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57
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Section 2.10 Evidence of Debt
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57
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Section 2.11 Payments Generally; Administrative Agents Clawback
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57
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Section 2.12 Sharing of Payments by Lenders
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59
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Section 2.13 Increase in Commitments
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60
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Section 2.14 Incremental Term Facility
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62
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Section 2.15 Swingline Loans
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63
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Section 2.16 Cash Collateral; Defaulting Lenders
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65
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ARTICLE III
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TAXES, YIELD PROTECTION AND ILLEGALITY
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Section 3.01 Taxes
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68
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Section 3.02 Illegality
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71
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Section 3.03 Inability to Determine Rates
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71
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Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans
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71
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Section 3.05 Compensation for Losses
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73
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Section 3.06 Mitigation Obligations; Replacement of Lenders
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73
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Page
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ARTICLE IV
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GUARANTY
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Section 4.01 Guaranty
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74
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Section 4.02 Rights of Lenders
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74
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Section 4.03 Certain Waivers
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74
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Section 4.04 Obligations Independent
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75
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Section 4.05 Subrogation
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75
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Section 4.06 Termination; Reinstatement
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75
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Section 4.07 Subordination
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75
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Section 4.08 Stay of Acceleration
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76
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Section 4.09 Condition of Borrower
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76
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Section 4.10 Limitation on Guaranty
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76
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Section 4.11 Guaranty Supplements
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76
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ARTICLE V
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CONDITIONS PRECEDENT
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Section 5.01 Conditions of Initial Credit Extension
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77
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Section 5.02 Conditions to all Credit Extensions
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80
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ARTICLE VI
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REPRESENTATIONS AND WARRANTIES
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Section 6.01 Existence, Qualification and Power
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80
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Section 6.02 Subsidiaries; Affiliates; Loan Parties
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80
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Section 6.03 Authority; No Conflict
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81
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Section 6.04 Financial Condition
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81
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Section 6.05 Litigation, Compliance with Laws
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82
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Section 6.06 Titles and Liens
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82
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Section 6.07 Regulation U; Investment Company Act
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82
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Section 6.08 Taxes
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82
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Section 6.09 Senior Debt
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83
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Section 6.10 Full Disclosure
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83
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Section 6.11 No Default
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83
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Section 6.12 Governmental and Third Party Approvals
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83
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Section 6.13 Binding Agreements
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83
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Section 6.14 Collective Bargaining Agreements
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83
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Section 6.15 Investments
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84
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Section 6.16 ERISA Compliance
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84
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Section 6.17 Solvency
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84
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Section 6.18 Casualty, Etc.
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84
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Section 6.19 Collateral Documents
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84
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Section 6.20 Environmental Compliance
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84
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Section 6.21 Other Debt
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85
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2
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Page
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ARTICLE VII
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COVENANTS OF THE LOAN PARTIES
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Section 7.01 Financial Statements and Other Information
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86
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Section 7.02 Taxes and Claims
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88
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Section 7.03 Insurance
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88
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Section 7.04 Maintenance of Existence; Conduct of Business
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88
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Section 7.05 Maintenance of and Access to Properties
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88
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Section 7.06 Compliance with Applicable Laws
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88
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Section 7.07 Litigation
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88
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Section 7.08 Subsidiaries
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89
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Section 7.09 Books and Records
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90
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Section 7.10 Use of Proceeds
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90
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Section 7.11 Covenant to Guarantee Obligations and Give Security
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90
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Section 7.12 Further Assurances
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91
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Section 7.13 Designation as Senior Debt
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92
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Section 7.14 Maintenance of Ratings
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92
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Section 7.15 Indebtedness
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92
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Section 7.16 Contingent Liabilities
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94
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Section 7.17 Liens
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96
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Section 7.18 Investments
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97
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Section 7.19 Restricted Payments
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99
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Section 7.20 Transactions with Affiliates
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100
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Section 7.21 Amendments of Certain Instruments
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100
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Section 7.22 Change in Nature of Business
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100
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Section 7.23 Fundamental Changes
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101
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Section 7.24 Dispositions
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102
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Section 7.25 Operating Cash Flow to Total Interest Expense
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103
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Section 7.26 Cash Flow Ratio
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104
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ARTICLE VIII
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EVENTS OF DEFAULT AND REMEDIES
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Section 8.01 Events of Default
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104
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Section 8.02 Remedies upon Event of Default
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106
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Section 8.03 Application of Funds
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107
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ARTICLE IX
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THE ADMINISTRATIVE AGENT
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Section 9.01 Appointment and Authority
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108
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Section 9.02 Administrative Agent Individually
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109
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Section 9.03 Duties of Administrative Agent; Exculpatory Provisions
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110
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Section 9.04 Reliance by Administrative Agent
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111
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Section 9.05 Delegation of Duties
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111
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Section 9.06 Resignation of Administrative Agent
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111
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Section 9.07 Non-Reliance on Administrative Agent and Other Lender Parties
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113
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Section 9.08 No Other Duties, Etc.
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114
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3
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Page
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Section 9.09 Administrative Agent May File Proofs of Claim
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114
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Section 9.10 Collateral and Guaranty Matters
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114
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Section 9.11 Removal of Administrative Agent
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115
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ARTICLE X
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MISCELLANEOUS
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Section 10.01 Amendments, Etc.
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115
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Section 10.02 Notices; Effectiveness; Electronic Communications
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117
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Section 10.03 No Waiver; Cumulative Remedies
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123
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Section 10.04 Expenses; Indemnity; Damage Waiver
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123
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Section 10.05 Payments Set Aside
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125
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Section 10.06 Successors and Assigns
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126
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Section 10.07 Right of Setoff
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130
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Section 10.08 Interest Rate Limitation
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131
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Section 10.09 Counterparts; Integration; Effectiveness
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131
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Section 10.10 Survival of Representations and Warranties
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131
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Section 10.11 Severability
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131
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Section 10.12 Replacement of Lenders
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131
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Section 10.13 Governing Law; Jurisdiction; Etc.
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132
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Section 10.14 Waiver of Jury Trial
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133
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Section 10.15 No Advisory or Fiduciary Responsibility
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133
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Section 10.16 USA PATRIOT Act Notice
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134
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Section 10.17 No Liability of Members, Partners and Other Persons
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134
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Section 10.18 Authorization of Third Parties to Deliver Information and Discuss Affairs
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134
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SCHEDULES
:
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Schedule 1.01(i)
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Restricted Subsidiaries
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Schedule 1.01(ii)
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Unrestricted Subsidiaries
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Schedule 1.01(iii)
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Guarantors
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Schedule 1.01(iv)
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Distribution Transaction Agreements
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Schedule 2.01
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Commitments and Applicable Percentages
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Schedule 6.02
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Subsidiaries; Affiliates; Loan Parties
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Schedule 6.03
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Required Consents and Regulatory Approvals
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Schedule 6.05
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Existing Litigation
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Schedule 6.06
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Material Real Property
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Schedule 6.15
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Existing Investments
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Schedule 6.20
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Environmental Compliance
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Schedule 7.15
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Existing Indebtedness
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Schedule 7.16
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Existing Guarantees
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Schedule 7.17
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Existing Liens
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Schedule 7.20
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Transactions with Affiliates
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EXHIBITS
:
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EXHIBIT A
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Form of Committed Loan Notice
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EXHIBIT B-1
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Form of Term A Note
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4
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EXHIBIT B-2
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Form of Term B Note
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EXHIBIT B-3
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Form of Revolving Credit Note
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EXHIBIT B-4
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Form of Swingline Note
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EXHIBIT C
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Form of Compliance Certificate
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EXHIBIT D-1
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Form of Certificate as to Quarterly Financial Statements
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EXHIBIT D-2
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Form of Certificate as to Annual Financial Statements
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EXHIBIT E
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Form of Opinion of General Counsel for the Borrower and the other Loan Parties
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EXHIBIT F
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Form of Opinion of Special New York Counsel to the Borrower and the other Loan Parties
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EXHIBIT G
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Form of Opinion of Special New York Counsel to the Administrative Agent
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EXHIBIT H
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Form of Assignment and Assumption
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EXHIBIT I
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Form of Incremental Term Supplement
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EXHIBIT J
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Form of Loan Certificate
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EXHIBIT K
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Form of Guaranty Supplement
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EXHIBIT L
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Form of Mortgage
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5
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of June 30, 2011 (this
Credit Agreement
),
among AMC NETWORKS INC., a Delaware corporation (the
Borrower
), the Restricted
Subsidiaries identified herein, the lenders which are parties hereto, together with their
respective successors and assigns, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative
Agent, Collateral Agent and L/C Issuer.
R
E
C
I
T
A
L
S
WHEREAS, the Borrower has requested that the Lenders provide revolving credit and term loans
in connection with the Distribution Transaction (such term and each other capitalized term used but
not defined in these recitals having the meaning ascribed thereto in Article I of this Credit
Agreement) and for the purposes set forth in
Section 7.10
, including the repayment of
amounts outstanding under the Existing RNS Credit Agreement and the Existing RNS Notes;
WHEREAS, the Revolving Credit Facility and the Term A Facility are to be made available by the
Lenders in accordance with the terms and conditions of this Credit Agreement by the funding of the
loans thereunder as set forth herein;
WHEREAS, CSC Holdings, LLC, acting in its capacity as Initial Term B Lender, is to initially
make the loans under the Term B Facility in connection with its contribution to the Borrower of the
Programming Network Business pursuant to the Distribution Agreement;
WHEREAS, each of the Guarantors expects to derive benefit, directly or indirectly, from the
making of the loans under the Facilities and the contribution of the Initial Term B Lender; and
WHEREAS, the Lenders are willing to make available the loans under the Facilities on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01
Certain Defined Terms
.
As used herein, the following terms shall have the following meanings:
Activities
has the meaning given to such term in
Section 9.02(b)
.
Administrative Agent
means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder and its successors in such capacity.
Administrative Agents Office
means the Administrative Agents address and, as
appropriate, account as set forth in
Section 10.02
or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the Lenders.
Administrative Questionnaire
means an administrative questionnaire in a form
supplied by the Administrative Agent.
Affiliate
means, as to any Person, any other Person which directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As used in this
definition,
control
(including, with its correlative meanings,
controlled by
and
under common control with
) means possession, directly or indirectly, of the power to
direct or cause the direction of management or policies of a Person (whether through ownership of
securities or partnership or other ownership interests, by contract or otherwise);
provided
that, in any event, any Person which owns directly or indirectly 10% or more of the securities
having ordinary voting power for the election of directors or other governing body of a corporation
or 10% or more of the partnership or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control such corporation or other Person;
and
provided
further
that no individual shall be an Affiliate of a Person solely by
reason of his or her being an officer, director, manager, member or partner of such Person, except
in the case of a partner or member if his or her interests in such partnership or limited liability
company, as applicable, shall qualify him or her as an Affiliate.
Affiliation Agreement
means any agreement between the Borrower or any of its
Restricted Subsidiaries and a distributor pursuant to which such distributor agrees, among other
things, to distribute and exhibit to its subscribers programming of the Borrower or such Restricted
Subsidiary, as the case may be.
Agents Group
has the meaning given to such term in Section 9.02(b).
Aggregate Commitments
means the Commitments of all the Lenders.
AMC
means American Movie Classics Company LLC, a New York limited liability company.
Annual Operating Cash Flow
means, as of any date,. Operating Cash Flow for the
period of four consecutive Quarters covered by the then most recent Compliance Certificate
delivered to the Lenders pursuant to
Section 7.01(d)
;
provided
that, (a) for
purposes of determining an amount of Annual Operating Cash Flow for the period ending September 30,
2011, such amount shall equal Operating Cash Flow for the Quarter covered by the Compliance
Certificate delivered to the Lenders pursuant to
Section 7.01(d)
for the period ending
September 30, 2011
multiplied
by four; (b) for purposes of determining an amount of Annual
Operating Cash Flow for the period ending December 31, 2011, such amount shall equal Operating Cash
Flow for the period of two consecutive Quarters covered by the Compliance Certificate delivered to
the Lenders pursuant to
Section 7.01(d)
for the period ending December 31, 2011
multiplied
by two; and (c) for purposes of determining an amount of Annual Operating Cash Flow for the period
ending March 31, 2012, such amount shall equal Operating Cash Flow for the period of three
consecutive Quarters covered by the Compliance Certificate delivered to the Lenders pursuant to
Section 7.01(d)
for the period ending March 31, 2012
multiplied
by 4/3.
Annual Total Interest Expense
means, as of any date, Total Interest Expense for the
period of four consecutive Quarters covered by the then most recent Compliance Certificate
delivered to the Lenders pursuant to
Section 7.01(d)
;
provided
that, (a) for
purposes of determining an amount of Annual Total Interest Expense for the period ending September
30, 2011, such amount shall equal Total Interest Expense for the Quarter covered by the Compliance
Certificate delivered to the Lenders pursuant to
Section 7.01(d)
for the period ending
September
2
30, 2011
multiplied
by four; (b) for purposes of determining an amount of Annual Total
Interest Expense for the period ending December 31, 2011, such amount shall equal Total Interest
Expense for the period of two consecutive Quarters covered by the Compliance Certificate delivered
to the Lenders pursuant to
Section 7.01(d)
for the period ending December 31, 2011
multiplied
by two; and (c) for purposes of determining an amount of Annual Total Interest Expense
for the period ending March 31, 2012, such amount shall equal Total Interest Expense for the period
of three consecutive Quarters covered by the Compliance Certificate delivered to the Lenders
pursuant to
Section 7.01(d)
for the period ending March 31, 2012
multiplied
by 4/3.
Applicable Percentage
means (a) in respect of the Term A Facility, with respect to
any Term A Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
A Facility represented by (i) on or prior to the Closing Date, such Term A Lenders Term A
Commitment at such time and (ii) thereafter, the principal amount of such Term A Lenders Term A
Loans at such time, (b) in respect of the Term B Facility, with respect to any Term B Lender at any
time, the percentage (carried out to the ninth decimal place) of the Term B Facility represented by
(i) on or prior to the Closing Date, such Term B Lenders Term B Commitment at such time and (ii)
thereafter, the principal amount of such Term B Lenders Term B Loans at such time, (c) in respect
of any Incremental Term Facility, with respect to any Incremental Term Lender at any time, the
percentage (carried out to the ninth decimal place) of such Incremental Term Facility represented
by the principal amount of such Incremental Term Lenders Incremental Term Loans at such time, and
(d) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any
time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility
represented by such Revolving Credit Lenders Revolving Credit Commitment at such time. If the
commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02
, or
if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving
Credit Lender in respect of the Revolving Credit Facility shall be determined based on the
Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility
most recently in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender
on
Schedule 2.01
(or, in the case of any Incremental Term Lender, on Schedule I to an
Incremental Term Supplement, if any) or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.
Applicable Rate
means, (a) with respect to the Term A Facility and the Revolving
Credit Facility, the applicable percentage per annum set forth below determined by reference to the
Cash Flow Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to
Section 7.01(d)
;
provided
, until the delivery of
the Compliance Certificate with respect to the Quarter ending September 30, 2011, the Applicable
Rate in respect of the Term A Facility and the Revolving Credit Facility shall be 1.00% per annum
for Base Rate Loans and 2.00% per annum for Eurodollar Rate Loans:
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving Credit Facility and
|
|
|
|
|
|
|
Term A Facility
|
|
|
|
|
|
|
Eurodollar Rate
|
|
|
Pricing Level
|
|
Cash Flow Ratio
|
|
(Letters of Credit)
|
|
Base Rate
|
|
1
|
|
|
<4.00:1.00
|
|
|
1.50
|
%
|
|
|
0.50
|
%
|
|
2
|
|
|
≥4.00:1.00 but <5.00:1.00
|
|
|
1.75
|
%
|
|
|
0.75
|
%
|
|
3
|
|
|
≥5.00:1.00 but <5.75:1.00
|
|
|
2.00
|
%
|
|
|
1.00
|
%
|
|
4
|
|
|
≥5.75:1.00
|
|
|
2.25
|
%
|
|
|
1.25
|
%
|
; (b) with respect to the Term B Facility, from time to time, (i) 2.00% per annum for Base Rate
Loans and (ii) 3.00% per annum for Eurodollar Rate Loans; and (c) with respect to an Incremental
Term Facility, the rate specified as such in the applicable Incremental Term Supplement.
Any increase or decrease in the Applicable Rate with respect to the Term A Facility and
Revolving Credit Facility resulting from a change in the Cash Flow Ratio shall become effective as
of the first Business Day immediately following the date a Compliance Certificate is delivered
pursuant to
Section 7.01(d)
;
provided
,
however
, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then Pricing Level 4 shall
apply in respect of the Term A Facility and the Revolving Credit Facility as of the first Business
Day after the date on which such Compliance Certificate was required to have been delivered.
Applicable Revolving Credit Percentage
means with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lenders Applicable Percentage in respect of the
Revolving Credit Facility at such time.
Appropriate Lender
means, at any time, (a) with respect to any of the Term A
Facility, Term B Facility, Revolving Credit Facility, or Incremental Term Facility, if any, a
Lender that has a Commitment with respect to such Facility or holds a Term A Loan, Term B Loan,
Revolving Credit Loan or Incremental Term Loan, if any, respectively, at such time, (b) with
respect to the Swingline Sublimit, the Swingline Lender, and (c) with respect to the Letter of
Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to
Section 2.03(a)
, the Revolving Credit Lenders.
Approved Electronic Communications
means, for purposes of identifying all
Communications which may be made on the Approved Electronic Platform, each Communication that any
Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant
to any Loan Document or the transactions contemplated therein, including any financial statement,
financial or other report, notice, request, certificate or other information material;
provided
,
however
, that, solely with respect to delivery of any such Communication
by any Loan Party to the Administrative Agent and without limiting or otherwise affecting either
the Administrative Agents right to effect delivery of such Communication by posting such
Communication to the Approved Electronic Platform or the protections afforded hereby to the
Administrative Agent in connection with any such posting, Approved Electronic Communication shall
exclude (i) any notice of borrowing, letter of credit request, swingline loan request, notice of
conversion or continuation, and any other notice, demand, communication, information, document or
other material relating to a request for a new, or a conversion of an
4
existing, Borrowing, (ii) any notice pursuant to
Section 2.04(a)
and
Section
2.04(b)
and any other notice relating to the payment of any principal or other amount due under
any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event
of Default and (iv) any notice, demand, communication, information, document or other material
required to be delivered to satisfy any of the conditions set forth in
Article V
or any
other condition to any Borrowing or other extension of credit hereunder or any condition precedent
to the effectiveness of this Credit Agreement (
provided
that, for avoidance of doubt any
such excluded Communication listed in clause (i) through clause (iv) may be made by electronic mail
as provided in
Section 10.02(b)(iv)
).
Approved Electronic Platform
has the meaning given to such term in
Section
10.02(d)
.
Approved Fund
means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Assignee Group
means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption
means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)(iii)
), and accepted by the Administrative Agent, in substantially the form
of
Exhibit H
or any other form approved by the Administrative Agent.
Availability Period
means in respect of the Revolving Credit Facility, the period
from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving
Credit Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to
Section 2.05
, and (iii) the date of termination of the commitment of each Revolving Credit
Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to
Section 8.02
.
Bankruptcy Code
means Title 11 of the United States Code entitled Bankruptcy, as
now and hereafter in effect, or any successor statute.
Base Rate
means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate
plus
1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by JPMCB as its prime rate and (c) the Eurodollar Rate that
would be payable on such day for a Eurodollar Rate Loan with a one month interest period
plus
1%. The prime rate is a rate set by JPMCB based upon various factors including
JPMCBs costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by JPMCB shall take effect at the opening of business on
the day specified in the public announcement of such change.
Base Rate Loan
means a Revolving Credit Loan, Term A Loan, Term B Loan, Swingline
Loan or Incremental Term Loan, if any, that bears interest based on the Base Rate.
Borrower
has the meaning given to such term in the preamble to this Credit
Agreement.
5
Borrowing
means a Revolving Credit Borrowing, Term A Borrowing, Term B Borrowing,
Swingline Borrowing or Incremental Term Borrowing, if any, as the context may require.
Business Day
means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of
New York and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
Cablevision
means Cablevision Systems Corporation, a Delaware corporation.
Capital Lease Obligations
means, as to any Person, the obligations of such Person to
pay rent or other amounts under a Lease of (or other agreement conveying the right to use) real
and/or personal property, which obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP and, for purposes of this Credit
Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
Carriage Suspension Adjustment
has the meaning specified in the definition of
Operating Cash Flow.
Cash Collateral
has the meaning given to such term in
Section 2.03(g)
.
Cash Collateralize
has the meaning given to such term in
Section 2.03(g)
.
Cash Equivalents
means any of the following types of Investments, to the extent
owned by the Borrower or any of its Restricted Subsidiaries free and clear of all Liens (other than
Liens created under the Collateral Documents and other Liens permitted hereunder):
(a) marketable, direct obligations of the United States of America maturing within 397
days of the date of purchase;
(b) commercial paper outstanding at any time issued by any Person organized under the
laws of any state of the United States of America, which Person shall have a consolidated
net worth of at least $250,000,000 and shall conduct a substantial part of its business in
the United States of America, maturing within 180 days from the date of the original issue
thereof, and rated P-1 or better by Moodys or A-1 or better by S&P;
(c) fully collateralized repurchase agreements in such amounts and with such financial
institutions having a rating of Baa or better from Moodys, or a rating of A- or better
from S&P, as the Borrower may select from time to time;
(d) certificates of deposit, bankers acceptances and time deposits maturing within
397 days after the date of purchase, which are issued by any Lender or by a United States
national or state bank or foreign bank having capital, surplus and undivided profits
totaling more than $100,000,000, and having a rating of Baa or better from Moodys or a
rating of A- or better from S&P;
6
(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moodys and
(iii) have portfolio assets of at least $3,000,000,000;
(f) repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (d) of this definition, having a term of not more than thirty days,
with respect to securities issued or fully guaranteed or insured by the United States
government;
(g) obligations of any State, commonwealth or territory of the United States or any
political subdivision thereof for the payment of the principal and redemption price of and
interest on which there shall have been irrevocably deposited the government obligations
described in clause (a) of this definition maturing as to principal and interest at times
and in amounts sufficient to provide such payment;
(h) auction preferred stock rated in the highest short-term credit rating category by
S&P or Moodys;
(i) securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank satisfying
the requirements of clause (b) of this definition); or
(j) money market mutual or similar funds that invest exclusively in assets satisfying
the requirements of clauses (a) through (i) of this definition
.
Cash Flow Ratio
means, as of any date, the ratio of (i) the sum of the aggregate
outstanding principal amount of all Net Debt outstanding on such date (determined on a consolidated
basis)
plus
(but without duplication of Indebtedness supported by Letters of Credit) the
aggregate undrawn face amount of all L/C Obligations outstanding on such date to (ii) Annual
Operating Cash Flow (and any change in such ratio as a result of a change in the amount of
Indebtedness or Letters of Credit shall be effective as of the date such change shall occur and any
change in such ratio as a result of a change in the amount of Annual Operating Cash Flow shall be
effective as of the date of receipt by the Administrative Agent of the Compliance Certificate
delivered pursuant to
Section 7.01(d)
, reflecting such change). Notwithstanding the
foregoing, for purposes of calculating the Cash Flow Ratio, there shall be excluded from Net Debt,
to the extent otherwise included as Net Debt, (A) any deferred or contingent obligation of the
Company to pay the consideration for an Investment not prohibited by
Section 7.18
to the
extent such obligation can be satisfied with the delivery of Equity Interests of the Borrower and
the Borrower covenants and agrees in a notice to the Administrative Agent that such obligation
shall be satisfied solely by the delivery of such Equity Interests; (B) any deferred purchase price
in connection with any acquisition not prohibited by
Section 7.18
to the extent that the
Borrowers obligations in respect of such deferred purchase price consist solely of an agreement to
deliver Equity Interests of the Borrower and the Borrower covenants and agrees in a notice to the
Administrative Agent that such obligation shall be satisfied solely by the delivery of such Equity
Interests; (C) all obligations under any interest rate Swap Contract or Monetization Indebtedness;
and (D)(x) all obligations under any Guarantee permitted under subparagraph (x) of
Section
7.16
and (y) all obligations under any Guarantee not prohibited by
Section 7.16
so long
as the obligations under such Guarantees referred to in this clause (y) are payable, solely at the
option of the Borrower, in Equity Interests of the Borrower and the Borrower covenants and agrees
in a notice to the Administrative Agent that such obligation shall be satisfied solely by the
delivery of such Equity Interests.
7
Cash Management Agreement
means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.
Cash Management Bank
means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.
CFC
means a Person that is a controlled foreign corporation under Section 957 of the
Code.
Change in Law
means the occurrence, after the date of this Credit Agreement, of any
of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority;
provided
, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by
the Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory authorities, in each
case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless of the
date enacted, adopted or issued.
Closing Date
means the first date all the conditions precedent in
Section
5.01
are satisfied or waived in accordance with
Section 10.01
.
Code
means the Internal Revenue Code of 1986, as amended.
Collateral
means all of the
Collateral
referred to in the Collateral
Documents and all of the other property that is or is intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the
Secured Parties.
Collateral Agent
means JPMCB in its capacity as collateral agent for the Lenders
under the Collateral Documents and its successors in such capacity.
Collateral Documents
means, collectively, the Security Agreement, the Pledge
Agreement, the Intellectual Property Security Agreement(s), the Mortgages and each of the other
agreements, instruments or documents that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
Committed Loan Notice
means a notice of (a) a Term A Borrowing, (b) a Term B
Borrowing, (c) a Revolving Credit Borrowing, (d) a Swingline Borrowing, (e) a conversion of Loans
from one Type to the other, or (f) a continuation of Eurodollar Rate Loans, pursuant to
Section
2.02(a)
, which, if in writing, shall be substantially in the form of
Exhibit A
.
Commitment
means a Term A Commitment, Term B Commitment, Revolving Credit Commitment
or Incremental Term Commitment, if any, as the context may require.
Commitment Fee
has the meaning given to such term in
Section 2.08(a)
.
8
Communications
means each notice, demand, communication, information, document and
other material provided for hereunder or under any other Loan Document or otherwise transmitted
between the parties hereto relating to this Credit Agreement, the other Loan Documents, any Loan
Party or its Affiliates, or the transactions contemplated by this Credit Agreement or the other
Loan Documents including, without limitation, all Approved Electronic Communications.
Compliance Certificate
means a certificate of a senior financial executive of the
Borrower in substantially the form of
Exhibit C
.
Contractual Obligation
means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is legally bound.
Control
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise.
Controlling
and
Controlled
have meanings correlative thereto.
Copyright Licenses
means any agreement, whether written or oral, providing for the
grant by or to a Person of any right under any Copyright.
Copyrights
means all copyrights in all works, now existing or hereafter created or
acquired, all registrations and recordings thereof, and all applications in connection therewith,
whether in the United States Copyright Office or in any similar office or agency of the United
States, any state thereof or any other country or any political subdivision thereof, or otherwise.
Credit Agreement
has the meaning given to such term in the preamble hereto.
Credit Extension
means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
Cumulative Operating Cash Flow
means an amount, determined on the date of any
proposed Restricted Payment, as applicable, equal to Operating Cash Flow for the period from July
1, 2011 through the end of the most recently ended Quarter as to which financial statements have
been delivered pursuant to
Section 7.01
.
Cumulative Total Interest Expense
means for the period from July 1, 2011 through the
end of the most recently ended Quarter as to which financial statements have been delivered
pursuant to
Section 7.01
, the aggregate of the interest expense of the Borrower and its
Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with
GAAP.
Debt Instruments
means, collectively, the respective notes and debentures
evidencing, and indentures and other agreements governing, any Indebtedness.
Debtor Relief Laws
means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or
other applicable jurisdictions from time to time in effect and affecting the rights of creditors
generally.
9
Default
means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate
means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate
plus
(ii) the Applicable Rate, if
any, applicable to Base Rate Loans
plus
(iii) 2% per annum;
provided
,
however
, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus
2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate
plus
2% per annum.
Defaulting Lender
means, at any time, a Lender as to which the Administrative Agent
has notified the Borrower that (i) such Lender has failed for three Business Days or more to comply
with its obligations under this Credit Agreement to make a Loan or make a payment to the L/C Issuer
in respect of an L/C Obligation or make a payment to the Swingline Lender in respect of a Swingline
Loan (each a
funding obligation
) unless such Lender notifies the Administrative Agent and
the Borrower in writing that such failure is the result of such Lenders good faith determination
that one or more conditions precedent to funding (each of which conditions precedent, together with
any applicable default, shall be specifically identified in such writing) has not been satisfied,
or (ii) such Lender has notified the Administrative Agent in writing, or has stated publicly, that
it will not comply with any such funding obligation, or (iii) a Lender Insolvency Event has
occurred and is continuing with respect to such Lender (
provided
that neither the
reallocation of funding obligations provided for in
Section 2.16(b)
as a result of a Lender
being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated funding
obligations shall by themselves cause the relevant Defaulting Lender to become a Non-Defaulting
Lender). Any determination that a Lender is a Defaulting Lender under clauses (i) through (iii)
above shall be made by the Administrative Agent in its reasonable discretion acting in good faith.
The Administrative Agent will promptly send to all parties hereto a copy of any notice to the
Borrower referred to above.
Deferred Carriage Fee Amortization
means the amount identified in the Borrowers
Consolidated Statement of Cash Flows on the line identified as Amortization of Deferred Carriage
Fees and determined in accordance with GAAP.
Disposition
or
Dispose
means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person (or the
granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith;
provided
that the term Disposition specifically
excludes (i) sale, transfer, license, lease or other disposition of obsolete or worn out property,
whether now owned or hereafter acquired, in the ordinary course of business, (ii) sale, transfer,
license, lease or other disposition of receivables, inventory and other current assets in the
ordinary course of business; (iii) sale, transfer, license, lease or other disposition of property
by any Restricted Subsidiary to the Borrower or to another Restricted Subsidiary;
provided
that if the transferor of such property is a Guarantor, the transferee thereof must either be the
Borrower or a Guarantor; (iv) sale, transfer, license, lease or other disposition of property
permitted by
Section 7.24(i)
through
(vii)
and
(x)
through
(xvi); and
(v)
sale, transfer, license, lease or other disposition of property involving property or
assets having a fair market value of less than $1,000,000.
10
Distribution Agreement
means the Distribution Agreement dated as of June 6, 2011,
between the Borrower and CSC Holdings, LLC, relating to,
inter alia
, the contribution of the
Programming Network Business to the Borrower.
Distribution Transaction
means (i) the contribution to the Borrower of the
Programming Network Business from CSC Holdings, LLC in exchange for the issuance or transfer to CSC
Holdings, LLC of common stock of the Borrower, Senior Notes and Term B Notes, (ii) the distribution
by CSC Holdings, LLC of the Borrowers common stock to Cablevision, and (iii) the distribution by
Cablevision of the Borrowers common stock to the common shareholders of Cablevision, in each case
pursuant to the Distribution Agreement.
Distribution Transaction Agreements
means the agreements listed on
Schedule
1.01(iv)
.
Dolan
means Charles F. Dolan.
Dolan Family Interests
means (i) any Dolan Family Member, (ii) any trusts for the
benefit of any Dolan Family Members, (iii) any estate or testamentary trust of any Dolan Family
Member for the benefit of any Dolan Family Members, (iv) any executor, administrator, conservator
or legal or personal representative of any Person or Persons specified in clauses (i), (ii) and
(iii) above to the extent acting in such capacity on behalf of any Dolan Family Member or Members
and not individually, and (v) any corporation, partnership, limited liability company or other
similar entity, in each case 80% of which is owned and controlled by any of the foregoing or
combination of the foregoing.
Dolan Family Members
means Dolan, his spouse, his descendants and any spouse of any
of such descendants.
Dollars
and
$
means lawful money of the United States of America.
Domestic Subsidiary
shall mean any Subsidiary that is organized and existing under
the laws of the United States or any state or commonwealth thereof or under the laws of the
District of Columbia.
Eligible Assignee
means (a) with respect to any assignment of any Revolving Credit
Commitment or Revolving Credit Loan, (i) a Revolving Credit Lender, (ii) an Affiliate of a
Revolving Credit Lender, and (iii) any other Person (other than a natural person) approved by (A)
the Administrative Agent, (B) in the case of any assignment of a Revolving Credit Commitment, the
Swingline Lender and the L/C Issuer, and (C) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or delayed), and (b)
with respect to any assignment of any Term Commitment or Term Loan, (i) a Lender, (ii) an Affiliate
of a Lender, (iii) an Approved Fund, (iv) any other Person (other than a natural person) approved
by (A) the Administrative Agent, and (B) unless an Event of Default has occurred and is continuing,
the Borrower (each such approval not to be unreasonably withheld or delayed);
provided
, the
Borrower shall be deemed to have approved of such Person unless it shall object thereto by written
notice to the Administrative Agent within seven (7) Business Days after having received written
notice thereof, and (v) with respect to any Term Loan, the Borrower or any of the Borrowers
Affiliates or Subsidiaries;
provided
that, (1) none of the Borrower or any of the
Borrowers Affiliates or Subsidiaries holding Term Loans shall have any right to (A) attend
(including by telephone) any meeting or discussions (or portion thereof) among the Administrative
Agent or any Lender to which representatives of the Borrower are not then present
11
or (B) receive any information or material prepared by the Administrative Agent or any Lender
or any communication by or among Administrative Agent and one or more Lenders, except to the extent
such information or materials have been made available to the Borrower or its representatives, (2)
any purchase of Term Loans by the Borrower or any of its Subsidiaries by assignment pursuant to
Section 10.6 shall (x) be effected by an offer to purchase such Term Loans pro rata from each Term
Lender of the applicable Term Facility in a manner reasonably acceptable to the Administrative
Agent, (y) result in such Term Loans being retired upon such assignment and (z) not be funded with
a borrowing of Revolving Credit Loans, and (3) the aggregate principal amount of Term Loans
purchased by assignment pursuant to Section 10.06 and held at any one time by any of the Borrowers
Affiliates (which are not required to be retired pursuant to clause (2) above) may not exceed 10%
of the outstanding principal amount of all Term Loans under any Term Facility.
Environmental Laws
means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability
means any liability (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other
Loan Party or any of their respective Subsidiaries resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
Equity Interests
means, with respect to any Person, any of the shares of capital
stock of (or other ownership or profit interests in) such Person, any of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, any of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and any of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate
means, when used with respect to a Plan, ERISA, the PBGC or a
provision of the Code pertaining to employee benefit plans, any Person that is a member of any
group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code of which
the Borrower is a member.
Eurodollar Base Rate
means, for such Interest Period, the rate per annum equal to
the British Bankers Association LIBOR Rate (
BBA LIBOR
), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the
12
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is
not available at such time for any reason, then the Eurodollar Base Rate for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits
in Dollars for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or converted by JPMCB and with
a term equivalent to such Interest Period would be offered by JPMCBs London Branch to major banks
in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
Eurodollar Rate
means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
|
|
|
Eurodollar Rate =
|
|
Eurodollar Base Rate
1.00 Eurodollar
Reserve Percentage
|
provided
that, solely with respect to Term B Loans, the Eurodollar Rate shall be no
lower than 1.00%
per annum
.
Eurodollar Rate Loan
means a Revolving Credit Loan, Term A Loan, Term B Loan or
Incremental Term Loan, if any, that bears interest at a rate based on the Eurodollar Rate.
Eurodollar Reserve Percentage
means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the
Board of Governors of the Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as Eurocurrency liabilities). The Eurodollar Rate
for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date
of any change in the Eurodollar Reserve Percentage.
Event of Default
means any of the events described in
Article VIII
.
Event of Loss
means, with respect to any property, (i) the actual or constructive
total loss of such property or the use thereof, resulting from destruction, damage beyond repair,
or the rendition of such property permanently unfit for normal use from any casualty or similar
occurrence whatsoever, (ii) the destruction or damage of a material portion of such property from
any casualty or similar occurrence whatsoever under circumstances in which such damage cannot
reasonably be expected to be repaired, or such property cannot reasonably be expected to be
restored to its condition immediately prior to such destruction or damage, within 180 days after
the occurrence of such destruction or damage, (iii) the condemnation, confiscation or seizure of,
or requisition of title to or use of, any property, or (iv) in the case of any property located
upon a leasehold, the termination or expiration of such leasehold.
Exchange
shall mean a Disposition constituting any exchange of assets or properties
for consideration consisting solely of other assets or properties, subject to the last sentence of
this definition, and of comparable value and use to those assets or properties being exchanged, and
having a value equal to the fair market value of those assets or properties being exchanged,
including exchanges involving the transfer or acquisition (or both transfer and
13
acquisition) of Equity Interests of a Person so long as substantially all of the Equity
Interests of such Person are transferred or acquired, as the case may be (and such Person becomes a
Restricted Subsidiary and a Guarantor hereunder). It is understood that exchanges of the kind
described above as to which a portion of the consideration paid or received is in the form of cash
or Cash Equivalents shall nevertheless constitute Exchanges for the purposes of this Credit
Agreement so long as the aggregate consideration received by the Borrower and its Restricted
Subsidiaries in connection with such exchange represents fair market value for the assets or
properties and cash or Cash Equivalents being transferred by the Borrower and its Restricted
Subsidiaries.
Excluded Indebtedness
has the meaning given to such term in
Section 8.01(e)
.
Excluded Taxes
means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), as a result of a
present or former connection between such Administrative Agent, Lender or L/C Issuer, as the case
may be, and the jurisdiction of the Governmental Authority imposing such tax or any taxing
authority thereof or therein (other than any such connection arising solely from the Administrative
Agent, such Lender or such L/C Issuer having executed, delivered or performed its obligations or
received a payment under, or enforced, any Loan Document), (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which the Borrower is
located, (c) any Tax imposed pursuant to FATCA, and (d) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under
Section 10.12
), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such Foreign Lenders
failure or inability (other than as a result of a Change in Law) to comply with
Section
3.01(e)
, except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a)
.
Existing RNS Credit Agreement
means that certain Credit Agreement, dated as of July
5, 2006, as amended, among the Rainbow National Services, LLC, the Guarantors named therein, Bank
of America, N.A., as syndication agent, Credit Suisse (formerly Credit Suisse First Boston),
Citicorp North America, Inc. and Wachovia Bank, National Association, as co-documentation agents,
JPMCB, as administrative agent, and the other Loan Parties (as defined therein) party thereto.
Existing RNS Indenture
means that certain Indenture, dated as of August 20, 2004,
among The Bank of New York, Rainbow National Services, LLC, RNS Co-Issuer Corporation and the
Guarantors (as defined therein) with respect to the Existing RNS Notes.
Existing RNS Notes
shall mean the 10-3/8% Senior Subordinated Notes Due 2014 issued
pursuant to the terms and conditions of the Existing RNS Indenture in the aggregate original
principal amount of $325,000,000.
Facility
means the Term A Facility, the Term B Facility, the Revolving Credit
Facility or an Incremental Term Facility, if any, as the context may require.
14
Facility Fee Letter
means any fee letter entered into between the Borrower and the
Joint Lead Arrangers on or prior to the Closing Date.
FATCA
means Sections 1471 through 1474 of the Code, as of the date of this Credit
Agreement, including any regulations or official interpretations thereof, whether issued before or
after the date of this Credit Agreement.
FCC
means the Federal Communications Commission, or any Governmental Authority
succeeding to any of its principal functions.
Federal Funds Rate
means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day;
provided
that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to JPMCB on such day on such transactions as determined by the Administrative Agent.
Fee Letters
means the Facility Fee Letter and the JPMCB Fee Letter.
Financial Covenants
means the financial covenants applicable to the Borrower and the
Restricted Subsidiaries from time to time as set forth in
Section 7.25
and
7.26
.
Foreign Lender
means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
Fund
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
GAAP
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied;
provided
, that, at any time after the Closing Date,
the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such
election, except as otherwise provided in
Section 1.03(b)
, references herein to GAAP shall
thereafter be construed to mean IFRS (and equivalent pronouncements) as in effect at the date of
such election, except as otherwise provided in this Credit Agreement;
provided
further
, that any calculation or determination in this Credit Agreement that requires the
application of GAAP for periods that include Quarters ended prior to the adoption of IFRS shall
remain as previously calculated or determined.
Governmental Authority
means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency,
15
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).
Granting Lender
has the meaning set forth in
Section 10.06(h)
.
Guarantees
has the meaning given to such term in
Section 7.16
.
Guarantors
means the Persons set forth on
Schedule 1.01(iii)
and each New
Restricted Subsidiary required to become a Guarantor pursuant to
Section 7.08
.
Guaranty
means the Guaranty made by the Guarantors under
Article IV
in favor
of the Secured Parties.
Guaranty Supplement
has the meaning given to such term in
Section 4.11
.
Hazardous Materials
means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Hedge Bank
means any Person that, at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured
Hedge Agreement.
Honor Date
has the meaning given to such term in
Section 2.03(c)(i)
.
IFRS
means the International Financial Reporting Standards as adopted by the
International Accounting Standards Board.
IFC
means The Independent Film Channel LLC, a Delaware limited liability company.
Increase Effective Date
has the meaning given to such term in
Section
2.13(d)
.
Incremental Term Borrowing
means a borrowing consisting of simultaneous Incremental
Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Incremental Term Lenders pursuant to
Section 2.14
.
Incremental Term Commitments
has the meaning given to such term in
Section
2.14(a)
.
Incremental Term Facility
means, any additional tranche of Incremental Term
Commitments and Incremental Term Loans established pursuant to an Incremental Term Supplement.
Incremental Term Lender
means a Lender with an Incremental Term Commitment or an
outstanding Incremental Term Loan.
Incremental Term Loan
has the meaning given to such term in
Section 2.14(a)
.
16
Incremental Term Note
means a promissory note made by the Borrower in favor of an
Incremental Term Lender, evidencing Incremental Term Loans made by such Incremental Term Lender,
substantially in the form attached to the Incremental Term Supplement.
Incremental Term Supplement
has the meaning given to such term in
Section
2.14(c)
.
Indebtedness
means, as to any Person, Capital Lease Obligations of such Person and
other indebtedness of such Person for borrowed money (whether by loan or the issuance and sale of
debt securities) or for the deferred purchase or acquisition price of property or services other
than accounts payable and accrued expenses (other than for borrowed money) incurred in the ordinary
course of business of such Person. Without limiting the generality of the foregoing, such term
shall include (a) when applied to the Borrower and/or any Restricted Subsidiary, all obligations of
the Borrower and/or any Restricted Subsidiary under Swap Contracts and (b) when applied to the
Borrower or any other Person, all Indebtedness of others Guaranteed by such Person.
Indemnified Taxes
means Taxes other than Excluded Taxes.
Indemnitee
has the meaning given to such term in
Section 10.04(b)
.
Information
has the meaning given to such term in
Section 10.02(f)
.
Initial Term B Lender
means CSC Holdings, LLC, a Delaware limited liability company.
Intellectual Property
means the Copyrights, Copyright Licenses, Patents, Patent
Licenses, Software, Trade Secrets, Trade Secret Licenses, Trademarks and Trademark Licenses of the
Loan Parties.
Intellectual Property Security Agreement
means an Intellectual Property Security
Agreement, between each Loan Party owning any Intellectual Property or applications for
Intellectual Property and the Collateral Agent, for the benefit of the Secured Parties, and any
similar security agreement or any security agreement supplement delivered pursuant to
Section
7.08
.
Interest Payment Date
means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made;
provided
,
however
, that if any Interest Period for a Eurodollar Rate
Loan exceeds three months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the
last Business Day of each March, June, September and December and the Maturity Date of the Facility
under which such Loan was made.
Interest Period
means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, or if made available by the
Lenders nine or twelve months thereafter, as selected by the Borrower in its Committed Loan Notice;
provided
that:
17
(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.
Investments
has the meaning given to such term in
Section 7.18
.
ISP
means the International Standby Practices (ISP98) International Chamber of
Commerce Publication No. 590, as the same may be amended and as in effect from time to time.
Issuer Documents
means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower or any Subsidiary or in favor the L/C Issuer and relating to any such Letter of
Credit.
Joint Lead Arrangers
means J.P. Morgan Securities LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
JPMCB
means JPMorgan Chase Bank, National Association, and its successors.
JPMCB Fee Letter
means the letter agreement, dated June 30, 2011, among the
Borrower, the Administrative Agent and the L/C Issuer.
Laws
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directives, requests, licenses, authorizations and permits
of, and agreements with, any Governmental Authority, in each case whether or not having the force
of law.
L/C Advance
means, with respect to each Revolving Credit Lender, such Lenders
funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving
Credit Percentage.
L/C Borrowing
means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit
Borrowing.
L/C Credit Extension
means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.
18
L/C Issuer
means JPMCB in its capacity as issuer of Letters of Credit hereunder or
any successor issuer of Letters of Credit hereunder and any other Lender reasonably acceptable to
the Borrower and Administrative Agent that has agreed to act as an L/C Issuer hereunder.
L/C Obligations
means, as of any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit
plus
the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with
Section 1.06
. For all purposes of this Credit Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be outstanding in the amount so remaining available to be drawn.
Leases
means leases and subleases (excluding Capital Lease Obligations), licenses to
use property, and easements.
Lender
means the banks or other financial institutions which are parties hereto,
including the Initial Term B Lender, the Swingline Lender and any Incremental Term Lender, together
with their respective successors and assigns.
Lender Insolvency Event
means that (i) a Lender or its Lender Parent is insolvent or
(ii) an event of the kind referred to in
clause (g)(ii
),
(g)(v)
or
(h)
of
Section 8.01
occurs, excluding any Undisclosed Administration, with respect to such Lender
or its Lender Parent (as if the references in such provisions to the Borrower or Significant
Restricted Subsidiaries referred to such Lender or Lender Parent);
provided
that, for the
avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority so long as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender.
Lender Parent
means, with respect to a Lender, the bank holding company (as defined
in Federal Reserve Board Regulation Y), if any, of such Lender, or any Person owning, beneficially
or of record, directly or indirectly, a majority of the shares of such Lender.
Lender Party
means any Lender, the L/C Issuer or the Swingline Lender.
Lender Party Appointment Period
has the meaning given to such term in
Section
9.06(a)
.
Lending Office
means, as to any Lender, the office or offices of such Lender
described as such in such Lenders Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.
Letter of Credit
means any letter of credit issued hereunder. A Letter of Credit
may be a commercial letter of credit or a standby letter of credit.
19
Letter of Credit Application
means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
Letter of Credit Expiration Date
means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business
Day, the next preceding Business Day).
Letter of Credit Fee
has the meaning given to such term in
Section 2.03(i)
.
Letter of Credit Sublimit
means an amount equal to $50,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
Liens
has the meaning given to such term in
Section 7.17
.
Loan
means an extension of credit by a Lender to the Borrower under
Article
II
in the form of a Term Loan, Swingline Loan or Revolving Credit Loan.
Loan Documents
means, collectively, (a) this Credit Agreement, (b) the Notes, (c)
the Collateral Documents, (d) the Fee Letters, (e) each Issuer Document, (f) each Secured Hedge
Agreement, (g) each Secured Cash Management Agreement, and (h) each Incremental Term Supplement, if
any;
provided
that for purposes of the definition of Materially Adverse Effect and
Articles V
through
IX
and
Section 10.01
, Loan Documents shall not include
Secured Hedge Agreements or Secured Cash Management Agreements.
Loan Parties
means, collectively, the Borrower and each Guarantor.
Mandatory Borrowing
has the meaning given to such term in Section 2.15(b).
Margin Stock
means margin stock as defined in Regulation U.
Materially Adverse Effect
means a materially adverse effect upon (i) the business,
assets, financial condition or results of operations of the Borrower and the Restricted
Subsidiaries taken as a whole on a combined basis in accordance with GAAP, (ii) the ability of the
Borrower and the Restricted Subsidiaries taken as a whole to perform the Obligations hereunder or
(iii) the legality, validity, binding nature or enforceability of this Credit Agreement or any
other Loan Document or the validity, perfection, priority or enforceability of the security
interest created, or purported to be created, by any of the Collateral Documents.
Maturity Date
means (a) with respect to the Revolving Credit Facility, June 30,
2016, (b) with respect to the Term A Facility, June 30, 2017, (c) with respect to the Term B
Facility, December 31, 2018, and (d) with respect to each Incremental Term Facility, if any, the
date specified as such in the respective Incremental Term Supplement.
Material Real Property
has the meaning given to such term in the Security Agreement.
Maximum Rate
has the meaning given to such term in
Section 10.08
.
Monetization Indebtedness
means any Indebtedness of the Borrower or any Restricted
Subsidiary thereof issued in connection with a Monetization Transaction;
provided
20
that, (i) on the date of its incurrence, the purchase price or principal amount of such
Monetization Indebtedness does not exceed the fair market value of the securities that are the
subject of such Monetization Transaction on such date and (ii) the obligations of the Borrower and
its Restricted Subsidiaries with respect to the purchase price or principal amount of such
Monetization Indebtedness (x) may be satisfied in full by delivery of the securities that are the
subject of such Monetization Transaction and any related options on such securities or any proceeds
received by the Borrower or any Restricted Subsidiary thereof on account of such options;
provided
further
, that if the Borrower or such Restricted Subsidiary no longer owns
sufficient securities that were the subject of such Monetization Transaction and/or related options
on such securities to satisfy in full the obligations of the Borrower and its Restricted
Subsidiaries under such Monetization Indebtedness, such Indebtedness shall no longer be deemed to
be Monetization Indebtedness, and (y) are not secured by any Liens on any of the Borrowers or its
Restricted Subsidiaries assets other than the securities that are the subject of such Monetization
Transaction and the related options on such securities.
Monetization Transaction
means a transaction pursuant to which (i) securities
received pursuant to a Disposition or Exchange are sold, transferred or otherwise conveyed
(including by way of a forward purchase agreement, prepaid forward sale agreement, secured
borrowing or similar agreement) within 180 days of such Disposition or Exchange and (ii) the
Borrower or its Restricted Subsidiaries receive (including by way of borrowing under Monetization
Indebtedness) not less than 75% of the fair market value of such securities in the form of cash.
Moodys
means Moodys Investors Service, Inc. and any successor thereto.
Mortgages
means the deeds of trust, trust deeds, deeds to secure debt and mortgages,
substantially in the form of
Exhibit L
(with such changes as may be satisfactory to the
Administrative Agent and its counsel to account for local law matters) and otherwise in form and
substance reasonably satisfactory to the Administrative Agent (and each other Mortgage delivered
pursuant to
Section 7.11
from time to time), in each case as amended, restated,
supplemented or otherwise modified from time to time.
Multiemployer Plan
means a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
Net Cash Proceeds
means proceeds received by the Borrower or any of the Restricted
Subsidiaries in cash from (x) any Disposition or the incurrence, issuance or sale of Indebtedness
or capital stock of the Borrower or any of the Restricted Subsidiaries, in each case after
deduction of the underwriting discounts and commissions in, the costs of, and any income,
franchise, transfer or other tax liability arising from, such sale, Disposition, incurrence or
issuance, (y) a capital contribution in respect of the common stock of any class of the Borrower to
the Borrower by the holder thereof, or (z) any insurance, condemnation awards or other payment with
respect to an Event of Loss, after deduction of the costs of, and any income, franchise, transfer
or other tax liability arising therefrom. If any amount payable to the Borrower or any such
Restricted Subsidiary in respect of any such incurrence or issuance shall be or become evidenced by
any promissory note or other negotiable or non-negotiable instrument, the cash proceeds received on
any such note or instrument shall constitute Net Cash Proceeds.
Net Debt
means, as to the Borrower and the Restricted Subsidiaries as at any date of
determination, the aggregate amount of all Indebtedness of the Borrower and the Restricted
Subsidiaries, less the aggregate amount of Qualified Cash of the Borrower and the
21
Restricted Subsidiaries as of such date in an aggregate amount not to exceed 33% of Operating
Cash Flow for the period of four consecutive Quarters covered by the then most recent Compliance
Certificate delivered to the Lenders pursuant to
Section 7.01(d)
.
New Restricted Subsidiary
means any New Subsidiary designated as a Restricted
Subsidiary pursuant to
Section 7.08(b)
and any Unrestricted Subsidiary redesignated as a
Restricted Subsidiary pursuant to
Section 7.08(c)
.
New Subsidiary
means any Person that becomes a Subsidiary of the Borrower after the
Closing Date.
New Unrestricted Subsidiary
means any New Subsidiary deemed an Unrestricted
Subsidiary pursuant to
Section 7.08(a)
.
Non-Defaulting Lender
means, at any time, a Lender that is not a Defaulting Lender.
Note
means a Term A Note, Term B Note, Revolving Credit Note, Swingline Note or
Incremental Term Note, if any, as the context may require.
Obligations
means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.
OID
has the meaning given to such term in
Section 2.10(a)
.
Operating Cash Flow
means, for any period, the following for the Borrower and the
Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with
GAAP: (i) aggregate operating revenues,
minus
(ii) aggregate operating expenses (including
technical, programming, sales, selling, general administrative expenses and salaries and other
compensation, in each case net of amounts allocated to Affiliates, but excluding depreciation and
amortization (but, for the avoidance of doubt, depreciation and amortization will not include the
amortization of programming expenses (films, series, shows and other content), which is treated as
an operating expense), charges and credits relating to employee stock plans, and restructuring
charges and credits, and, to the extent otherwise included in operating expenses, any losses
resulting from a write-off or write-down of Investments by the Borrower or any Restricted
Subsidiary in Affiliates),
plus
(iii), without duplication, Deferred Carriage Fee
Amortization;
provided
,
however
, that for purposes of determining Operating Cash
Flow for any period (A) there shall be excluded all management fees paid to the Borrower or any
Restricted Subsidiary during such period by any Unrestricted Subsidiary other than any such amounts
settled in cash to the extent not in excess of 5% of Operating Cash Flow for the Borrower and the
Restricted Subsidiaries as determined without including any such fees, (B) there shall be excluded
operating expenses in connection with the Distribution Transaction in an amount not to exceed
$5,000,000 in the aggregate, (C) the amount of Operating Cash Flow attributable to any non-wholly
owned Restricted Subsidiary shall be included only to the extent of the Borrowers direct or
indirect economic interest in the Equity Interests of such non-wholly owned Restricted Subsidiary;
22
provided
, that the amount of Operating Cash Flow attributable to all non-wholly owned
Restricted Subsidiaries shall in no event exceed 10% of the total Operating Cash Flow for such
period, and (D) Operating Cash Flow for such period shall be increased or reduced, as the case may
be, by the Operating Cash Flow of assets or businesses acquired or disposed of (provided that in
each case it has an impact on Annual Operating Cash Flow of at least $1,000,000) (including by
means of any redesignation of any Subsidiary pursuant to
Section 7.08(c)
) by the Borrower
or any Restricted Subsidiary on or after the first day of such period, determined on a pro forma
basis reasonably satisfactory to the Administrative Agent (it being agreed that it shall be
satisfactory to the Administrative Agent that such pro forma calculations may be based upon GAAP as
applied in the preparation of the financial statements for the Borrower, delivered in accordance
with
Section 7.01
rather than as applied in the financial statements of the Person whose
assets were acquired and may include, in the Borrowers discretion, a reasonable estimate of
savings resulting from any such acquisition or disposition (a) that have been realized, (b) for
which the steps necessary for realization have been taken, or (c) for which the steps necessary for
realization are reasonably expected to be taken within 12 months of the date of such acquisition or
disposition), as though the Borrower or such Restricted Subsidiary acquired or disposed of such
assets on the first day of such period. For purposes of this definition, operating revenues and
operating expenses shall exclude any non-recurring, non-cash items in excess of $2,500,000.
Operating Cash Flow may also be adjusted to normalize an acceleration of programming expenses
(films, series, shows and other content) required to be recognized in accordance with GAAP when the
programs useful life is shortened or otherwise changed from the originally projected useful life.
Furthermore, to the extent the programs are abandoned and, to the extent that the amortization of
such programming expenses are, in accordance with GAAP, required to be accelerated into the year of
such impairment, the Borrower may treat such costs as being amortized over a period equal to the
original projected useful life. In the event of any suspension of carriage by any party to an
Affiliation Agreement during renewal negotiations of such Affiliation Agreement or upon the
expiration or termination of, or during disputes under, such Affiliation Agreement, the Operating
Cash Flow calculation, for purposes of complying with the Financial Covenants (but not for any
other purpose), may be adjusted (the
Carriage Suspension Adjustment
) to include the
Operating Cash Flow attributable to the affected Affiliation Agreement from the corresponding
period one year prior to each period during which such suspension of carriage continues, but in any
event not to exceed three months, provided that the Carriage Suspension Adjustment shall be limited
only to the Operating Cash Flow attributable to one Affiliation Agreement during any three-month
period being tested.
Operating Company
means (i) each of AMC, IFC, WE and Sundance, and (ii) each other
Restricted Subsidiary that directly or indirectly owns a material programming network that had $100
million or more in gross operating revenues for the period of four consecutive Quarters covered by
the then most recent Compliance Certificate delivered to the Lenders pursuant to
Section
7.01(d)
.
Other Taxes
means all present or future stamp or documentary taxes or any other
excise, property, mortgage recording or other similar taxes, charges or similar levies arising from
any payment made hereunder or under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Credit Agreement or any other Loan Document.
Outstanding Amount
means (a) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments thereof occurring on such date and (b) with respect to any L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to
23
any L/C Credit Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower
of Unreimbursed Amounts.
Participant
has the meaning given to such term in
Section 10.06(d)
.
Patent Licenses
means all agreements, whether written or oral, providing for the
grant by or to a Person of any right to manufacture, use or sell any invention covered by a Patent.
Patents
means (a) all letters patent of the United States or any other country, now
existing or hereafter arising, and all improvement patents, reissues, reexaminations, patents of
additions, renewals and extensions thereof, and (b) all applications for letters patent of the
United States or any other country, now existing or hereafter arising, and all provisions,
division, continuations and continuations-in-part and substitutes thereof.
PATRIOT Act
has the meaning given to such term in
Section 10.16
.
PBGC
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.
Permitted Acquisition
means any acquisition (including by merger, amalgamation,
consolidation or other form of combination) of all or substantially all of the assets of, or all or
substantially all of the Equity Interests (other than directors qualifying shares) in, a Person or
division, line of business or other business unit of a Person who will become, or which assets will
become property of, a Restricted Subsidiary so long as (a) there is no Default or Event of Default
both before and after giving pro forma effect to such acquisition and any incurrence of
Indebtedness in connection therewith, (b) the Borrower would be in compliance, on a pro forma basis
after giving effect to the consummation of such acquisition and any incurrence of Indebtedness in
connection therewith (such pro forma basis to include, in the Borrowers discretion, a reasonable
estimate of savings resulting from any such acquisition (i) that have been realized, (ii) for which
the steps necessary for realization have been taken, or (iii) for which the steps necessary for
realization are reasonably expected to be taken within 12 months of the date of such acquisition,
in each case, certified by the Borrower), with the Financial Covenants recomputed as of the last
day of the most recently ended Quarter for which financial statements have been delivered pursuant
to
Section 7.01
and calculated as if such acquisition was consummated and such Indebtedness
was incurred on the first day of the 12-month period then ended;
provided
, the Financial
Covenants for purposes of determining such pro forma compliance, shall be determined in a manner to
be more restrictive than the level otherwise applicable for the relevant test period by 0.25:1.00,
(c) the acquired company or assets are in the same business as the Borrower and its subsidiaries or
are in a line of business that is generally related to the lines of business conducted by the
Borrower and its subsidiaries, (d) any acquired company and its subsidiaries (other than any
subsidiary that shall be a Foreign Subsidiary) shall become Guarantors and pledge their assets to
the Collateral Agent and (e) the Borrower shall have notified the Administrative Agent at least ten
Business Days prior to the consummation of such proposed acquisition, and shall have delivered to
the Administrative Agent documents related to the proposed acquisition reasonably requested by the
Administrative Agent.
Permitted Affiliate Payments
means (a) payments under equity and other compensation
incentive programs to employees and directors of the Borrower or any of its current or former
Affiliates in the ordinary course of business; provided that, in the case of employees or
24
directors of former Affiliates, such payments relate to awards granted prior to the
consummation of the Distribution Transaction, and (b) payments due and payable under the
Distribution Transaction Agreements.
Permitted Debt
means any Indebtedness incurred, issued or sold by the Borrower after
the Closing Date, and any Guarantees thereof issued by the Guarantors permitted pursuant to Section
7.16(viii), provided that:
(i) such Indebtedness (A) shall be unsecured, (B) shall have a commercially reasonable
interest rate (which rate shall be deemed commercially reasonable if such Indebtedness is sold by a
member of the Financial Industry Regulatory Authority in an underwritten offering, in a private
placement pursuant to Rule 144A under the Securities Act of 1933, or on a best efforts basis),
(C) shall be neither (1) redeemable, payable or required to be purchased or otherwise retired or
extinguished in whole or in part at a fixed or determinable date (whether by operation of a sinking
fund or otherwise), at the option of any Person other than the Borrower or upon the occurrence of a
condition other than a change of control (as defined in the Debt Instruments governing such
Indebtedness) not solely within the control of the Borrower (such as a redemption required to be
made out of future earnings) nor (2) convertible into any other Indebtedness or capital stock of
the Borrower that may be so retired, extinguished or converted, in the case of clause (1) or (2)
above, at any time before the date that is six months after the last Maturity Date applicable to
the Facilities as in effect at the time of the incurrence, issuance or sale of such Indebtedness,
(D) shall have a weighted average life to maturity equal to or greater than the weighted average
life to maturity of the Facilities (assuming each of the Facilities had been entered into with a
six month additional weighted life), (E) shall be issued subject to the demonstration of pro forma
compliance after giving effect to such Indebtedness with the Financial Covenants recomputed as of
the last day of the most recently ended Quarter for which financial statements have been delivered
pursuant to
Section 7.01
and calculated as if incurred on the first day of the 12-month
period then ended, and (F) shall have terms and conditions no more restrictive or burdensome, taken
as a whole, than the terms and conditions of the Senior Notes (whether or not the Senior Notes are
outstanding at the date of such determination); and
(ii) at the time of and immediately after giving effect to the incurrence, issuance or sale of
such Indebtedness, no Default shall have occurred and be continuing, and the Borrower shall have so
certified to the Administrative Agent;
and provided further, that the Borrower shall (a) prior to the issuance of any such Indebtedness,
provide notice to the Administrative Agent of the proposed issuance thereof and of the use of the
proceeds thereof and (b) as soon as available, provide to the Administrative Agent copies of the
Debt Instruments governing such Indebtedness.
Permitted Liens
means, with respect to any Person:
(i) (a) pledges or deposits by such Person under workers compensation laws, unemployment
insurance laws or other social security legislation, and deposits securing liability to insurance
carriers under related insurance or self-insurance arrangements, (b) Liens incurred in the ordinary
course of business securing insurance premiums or reimbursement obligations under insurance
policies related to the items specified in the foregoing clause (a), or (c) obligations in respect
of letters of credit or bank guarantees that have been posted by such Person to support the payment
of the items set forth in clauses (a) and (b) of this clause (i);
25
(ii) (a) deposits to secure the performance of bids, tenders, contracts (other than for
borrowed money) or Leases to which such Person is a party, (b) deposits to secure public or
statutory obligations of such Person, surety and appeal bonds, performance bonds and other
obligations of a like nature, (c) deposits as security for contested taxes or import duties or for
the payment of rent, and (d) obligations in respect of letters of credit or bank guarantees that
have been posted by such Person to support the payment of items set forth in clauses (a) and (b) of
this clause (ii);
(iii) Liens consisting of pledges or deposits of cash or securities made by such Person as a
condition to obtaining or maintaining any licenses issued to it by, or to satisfy other similar
requirements of, any applicable Governmental Authority;
(iv) Liens imposed by law, such as (a) carriers, warehousemens and mechanics materialmens,
landlords, or repairmens Liens, or (b) other like Liens arising in the ordinary course of
business securing obligations which are not overdue by more than 30 days or which if more than 30
days overdue, (1) the period of grace, if any, related thereto has not expired or which are being
contested in good faith by appropriate proceedings; provided that a reserve or other appropriate
provision shall have been made therefor as appropriate in accordance with GAAP, or (2) the
aggregate principal outstanding amount of the obligations secured thereby does not exceed
$1,000,000;
(v) Liens arising out of judgments or awards not constituting an Event of Default;
(vi) survey exceptions, encumbrances, easements or reservations of, or rights of others for
rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or
other restrictions or encumbrances as to the use of real properties or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties which do not in the
aggregate materially impair their use in the ordinary operation of the business of such Person;
(vii) any zoning, building or similar laws or rights reserved to or vested in any Governmental
Authority;
(viii) Liens created in the ordinary course of business and customary in the relevant industry
with respect to the creation of content, and the components thereof, securing the obligations of
any of the Borrower and its Restricted Subsidiaries owing in respect of compensation or other
payments owed for services rendered by creative or other personnel that do not constitute
Indebtedness; provided that any such Lien shall attach solely to the content, or applicable
component thereof, that are the subject to the arrangements giving rise to the underlying
obligation;
(ix) Liens for (a) taxes (other than property taxes), assessments, charges or other
governmental levies not overdue by more than 30 days or which if more than 30 days overdue, (1) the
period of grace, if any, related thereto has not expired or which are being contested in good faith
by appropriate proceedings; provided that a reserve or other appropriate provision shall have been
made therefor as appropriate in accordance with GAAP and (2) the aggregate principal outstanding
amount of the obligations secured thereby does not exceed $2,000,000, and (b) property taxes not
yet due and payable or which are being contested in good faith and by appropriate proceedings (and
as to which all foreclosures and other enforcement proceedings shall have been fully bonded or
otherwise effectively stayed);
26
(x) Liens arising in the ordinary course of business by virtue of any contractual, statutory
or common law provision relating to bankers Liens, rights of set-off or similar rights and
remedies covering deposit or securities accounts (including funds or other assets credited thereto
and pooling and netting arrangements) or other funds maintained with a depository institution or
securities intermediary;
(xi) restrictions on transfers of securities imposed by applicable securities laws;
(xii) (a) any interest or title of a lessor, licensor or sublessor under any Lease, license
or sublease entered into by such Person in the ordinary course of its business and covering only
the assets so leased, licensed or subleased and (b) the rights reserved or vested in any other
Person by the terms of any Lease, license, franchise, grant or permit held by such Person or by a
statutory provision to terminate any such Lease, license, franchise, grant or permit or to require
periodic payments as a condition to the continuance thereof;
(xiii) assignments of insurance or condemnation proceeds provided to landlords (or their
mortgagees) pursuant to the terms of any Lease and Liens or rights reserved in any Lease for rent
or for compliance with the terms of such Lease;
(xiv) Liens arising from precautionary UCC financing statement filings (or similar filings
under applicable law) regarding Leases entered into by such Person in the ordinary course of
business;
(xv) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by such Person in the ordinary course of business not
prohibited by this Credit Agreement;
(xvi) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business; and
(xvii) additional Liens so long as the aggregate principal outstanding amount of the
obligations secured thereby does not exceed $10,000,000 at any time.
Permitted Refinancing Indebtedness
means any Indebtedness issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace, defease or refund
(collectively, to
Refinance
), the Indebtedness being Refinanced (or previous refinancings thereof
constituting Permitted Refinancing Indebtedness);
provided
, that (a) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid
accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses),
(b) the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater
than or equal to the weighted average life to maturity of the Indebtedness being Refinanced, (c)
the final maturity of such Permitted Refinancing shall be no earlier than the Maturity Date of the
Term B Facility, (d) if the Indebtedness being Refinanced is subordinated in right of payment to
the Obligations under this Credit Agreement, such Permitted Refinancing Indebtedness shall be
subordinated in right of payment to such Obligations on terms at least as favorable to the Lenders
as those contained in the documentation governing the Indebtedness being Refinanced, (e) no
Permitted Refinancing Indebtedness shall have different obligors than the Indebtedness being
Refinanced and (f) if the Indebtedness being Refinanced is secured by any collateral (whether
equally and ratably with, or junior to, the Secured Parties or otherwise), such
27
Permitted Refinancing Indebtedness may be secured by such collateral on terms no less
favorable to the Secured Parties than those contained in the documentation governing the
Indebtedness being Refinanced.
Person
means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan
means, at any time, an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either
(i) maintained by the Borrower or an ERISA Affiliate or (ii) a Multiemployer Plan to which the
Borrower or an ERISA Affiliate is then making or accruing an obligation to make contributions or
has within the preceding six plan years made contributions.
Pledge Agreement
means that certain Pledge Agreement, dated as of June 30, 2011,
among certain Loan Parties and the Collateral Agent.
Pledged Equity Interests
has the meaning given to such term in the Pledge Agreement.
Pledgor
has the meaning given to such term in the Pledge Agreement.
Potential Defaulting Lender
means, at any time, a Lender (i) as to which the
Administrative Agent has notified the Borrower that an event of the kind referred to in the
definition of Lender Insolvency Event has occurred and is continuing in respect of any financial
institution affiliate of such Lender, or (ii) as to which the Administrative Agent has in good
faith determined and notified the Borrower that such Lender or its Lender Parent or a Subsidiary
thereof has defaulted on its funding obligations under any other loan agreement or credit
agreement. Any determination that a Lender is a Potential Defaulting Lender under any of clauses
(i) through (ii) above shall be made by the Administrative Agent in its reasonable discretion
acting in good faith. The Administrative Agent will promptly send to all parties hereto a copy of
any notice to the Borrower referred to above.
Programming Network Business
means (i) the programming businesses conducted by the
Restricted Subsidiaries identified on
Schedule 1.01(i)
as of the date hereof and which
collectively consist of the programming networks currently known as AMC, IFC, Sundance and WE and
(ii) the other programming and related assets contributed to the Borrower pursuant to the
Distribution Agreement.
Prohibited Transaction
means a transaction that is prohibited under Section 4975 of
the Code or Section 406 of ERISA and not exempt under Section 4975 of the Code or Section 408 of
ERISA.
Quarter
means a fiscal quarterly period of the Borrower.
Qualified Cash
means, of any Person, all cash and Cash Equivalents of such Person in
deposit or securities accounts in which the Collateral Agent has control pursuant to and within
the meaning of Section 9-104 and/or 9-106 of the UCC pursuant to the terms and conditions set forth
in the Security Agreement or any other Collateral Document.
Reduction Amount
has the meaning set forth in
Section 2.04(b)(vi)
.
28
Register
has the meaning given to such term in
Section 10.06(c)
.
Registered Public Accounting Firm
has the meaning given to such term by the
Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.
Regulation U
means Regulation U of the Board of Governors of the Federal Reserve
System as the same may be amended or supplemented from time to time.
Related Parties
means, with respect to any Person, such Persons Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Persons
Affiliates.
Reportable Event
means (i) any of the events set forth in Section 4043(c) (other
than a Reportable Event as to which the provision of 30 days notice to the PBGC is waived under
applicable regulations), 4062(e) or 4063(a) of ERISA or the regulations thereunder, (ii) a
determination that any Plan is an at risk status within the meaning of Section 303 of ERISA and
the failure of such Plan to make the required funding to the Plan as provided by Section 303(i) of
ERISA and (iii) any failure to make payments required by Section 430(j) of the Code if such failure
continues for 30 days following the due date for any required installment.
Request for Credit Extension
means (a) with respect to a Borrowing, conversion or
continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, and (b) with respect
to an L/C Credit Extension, a Letter of Credit Application.
Required Incremental Term Lenders
means, as of any date of determination and as to
any Incremental Term Facility, Incremental Term Lenders holding more than 50% of such Incremental
Term Facility on such date;
provided
that the portion of such Incremental Term Facility
held by any Defaulting Lender shall be excluded for purposes of making a determination of Required
Incremental Term Lenders.
Required Lenders
means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lenders risk participation and funded participation in L/C Obligations being deemed held by such
Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments;
provided
that (i) the unused Revolving Credit Commitment of, and the portion
of the Total Outstandings held or deemed held by, any Defaulting Lender, and (ii) the Loans held by
the Borrower or any of its Affiliates or Subsidiaries, shall in each case be excluded for purposes
of making a determination of Required Lenders.
Required Prepayment Date
has the meaning given to such term in
Section
2.04(b)(vii)
.
Required Revolving Lenders
means, as of any date of determination, Revolving Credit
Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the
aggregate amount of each Revolving Credit Lenders risk participation and funded participation in
L/C Obligations being deemed held by such Revolving Credit Lender for purposes of this
definition) and (b) aggregate unused Revolving Credit Commitments;
provided
that the unused
Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Revolving Lenders.
29
Required Revolving/Term A Lenders
means, as of any date of determination, Lenders
(other than Term B Lenders and Incremental Term Lenders, if any) holding more than 50% of the sum
of the (a) the Total Outstandings (with the aggregate amount of each Revolving Credit Lenders risk
participation and funded participation in L/C Obligations being deemed held by such Revolving
Credit Lender for purposes of this definition)
less
the Outstanding Amount of the Term B
Loans and Incremental Term Loans, if any, and (b) aggregate unused Revolving Credit Commitments;
provided
, that (i) the unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender (other than any Term B Lender or
Incremental Term Lender, if any), and (ii) the Loans held by the Borrower or any of its Affiliates
or Subsidiaries, shall in each case be excluded for purposes of making a determination of Required
Revolving/Term A Lenders.
Required Term A Lenders
means, as of any date of determination, Term A Lenders
holding more than 50% of the Term A Facility on such date;
provided
that (i) the portion of
the Term A Facility held by any Defaulting Lender, and (ii) the Loans held by the Borrower or any
of its Affiliates or Subsidiaries, shall in each case be excluded for purposes of making a
determination of Required Term A Lenders.
Required Term B Lenders
means, as of any date of determination, Term B Lenders
holding more than 50% of the Term B Facility on such date;
provided
that (i) the portion of
the Term B Facility held by any Defaulting Lender, and (ii) the Loans held by the Borrower or any
of its Affiliates or Subsidiaries, shall in each case be excluded for purposes of making a
determination of Required Term B Lenders.
Responsible Officer
means the chief executive officer, president, chief financial
officer, senior vice president-finance, chief accounting officer, controller, treasurer or
assistant treasurer of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricting Information
has the meaning given to such term in
Section
10.02(g)
.
Restricted Group Reporting Period
means any Quarter or fiscal year of the Borrower
if, as of the end of such period, either (i) the combined revenues of the Unrestricted Subsidiaries
exceed 3% of the combined revenues of the Borrower and its consolidated Subsidiaries for the four
Quarter period then ended, or (ii) the aggregate amount of the assets of the Unrestricted
Subsidiaries as recorded on the balance sheet of the Borrower and its consolidated Subsidiaries
exceeds 3% of the aggregate amount of the assets of the Borrower and its consolidated Subsidiaries
on such balance sheet.
Restricted Payments
means (i) direct or indirect distributions, dividends or other
payments by the Borrower or any Restricted Subsidiary on account of (including, without limitation,
sinking fund or other payments on account of the redemption, retirement, purchase or acquisition
of) any general or limited partnership or joint venture interest in, or any capital stock of, the
Borrower or such Restricted Subsidiary, as the case may be (whether made in cash, property or other
obligations), other than any such distributions, dividends and other payments made by (a) a
Restricted Subsidiary to the Borrower or another Loan Party on account of any such Equity Interests
of the former held by the latter and (b) a Restricted Subsidiary that is not a Loan Party to
another Restricted Subsidiary that is not a Loan Party on account of any such
30
Equity Interests of the former held by the latter, and (ii) any prepayment of principal or
interest on account of any Permitted Debt or any Indebtedness of the Borrower issued under the
Senior Notes Indenture (other than (a) so long as no Default or Event of Default shall have
occurred and be continuing, any prepayment of interest on account of any Permitted Debt or the
Senior Notes, (b) any prepayment of principal or interest on account of any Indebtedness under the
Existing RNS Credit Agreement and Existing RNS Notes, and (c) any prepayment of principal on any
Indebtedness being Refinanced with Permitted Refinancing Indebtedness).
Restricted Subsidiaries
means the Persons set forth on
Schedule 1.01(i)
and
any New Restricted Subsidiary,
provided
that any Restricted Subsidiary redesignated as an
Unrestricted Subsidiary pursuant to and in compliance with
Section 7.08(c)
shall cease to
be a Restricted Subsidiary.
Restricting Information
has the meaning given to such term in
Section
10.02(g)
.
Revolving Credit Borrowing
means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Revolving Credit Lenders pursuant to
Section 2.01(c)
.
Revolving Credit Commitment
means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to
Section 2.01(c)
,
and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lenders name on
Schedule
2.01
under the caption Revolving Credit Commitment or opposite such caption in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Credit Agreement.
Revolving Credit Facility
means, at any time, the aggregate amount of the Revolving
Credit Lenders Revolving Credit Commitments at such time.
Revolving Credit Lender
means, at any time, any Lender that has a Revolving Credit
Commitment or Revolving Credit Loan at such time.
Revolving Credit Loan
has the meaning given to such term in
Section 2.01(c)
;
provided
, that a Swingline Loan shall not constitute a Revolving Credit Loan.
Revolving Credit Note
means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender,
substantially in the form of
Exhibit B-3
.
Revolving/Term A Event of Default
means any Event of Default contained in clause (c)
of
Section 8.01
, but only with respect to
Sections 7.25
and
7.26
.
S&P
means Standard & Poors Financial Services LLC, a subsidiary of The McGraw-Hill
Companies, Inc., and any successor thereto.
SEC
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
31
Secured Cash Management Agreement
means any Cash Management Agreement that is
entered into by and between one or more Loan Parties and any Cash Management Bank.
Secured Hedge Agreement
means any interest rate Swap Contract permitted under
Article VII
that is entered into by and between the Borrower and any Hedge Bank.
Secured Parties
means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to
Section 9.05
, and the other Persons the
Obligations owing to which are or are stated to be secured by the Collateral under the terms of the
Collateral Documents.
Securities Laws
means the Securities Act of 1933, the Securities Exchange Act of
1934, the Sarbanes-Oxley Act of 2002, and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the Public Company
Accounting Oversight Board.
Security Agreement
means that certain Security Agreement, dated as of June 30, 2011,
among certain Loan Parties and the Collateral Agent.
Senior Notes
means the 7.75% Senior Notes due 2021, issued pursuant to the Senior
Notes Indenture in the aggregate original principal amount of $700,000,000.
Senior Notes Indenture
means that certain Indenture, dated as of June 30, 2011, by
and among the Borrower, the guarantors party thereto and U.S. Bank National Association, as
trustee, with respect to the Senior Notes.
Senior Secured Leverage Ratio
means, as of any date, the ratio of (i) the Total
Outstandings on such date to (ii) Annual Operating Cash Flow determined as of the last day of the
month covered by the then most recent Compliance Certificate delivered to the Lenders pursuant to
Section 7.01(d), a copy of which has been delivered to the Administrative Agent (and any change in
such ratio as a result of a change in the amount of Total Outstandings shall be effective as of the
date such change shall occur and any change in such ratio as a result of a change in the amount of
Annual Operating Cash Flow shall be effective as of the date of receipt by the Administrative Agent
of the Compliance Certificate delivered pursuant to Section 7.01(d) reflecting such change).
Significant Restricted Subsidiary
means a Restricted Subsidiary having (x) revenues
in excess of $10,000,000 for the four Quarter period then ended or (y) assets in excess of
$25,000,000 recorded on its most recent audited balance sheet.
Software
means the intellectual property rights embodied in computer programs,
computer applications, source code, object code and related documentation.
Solvent
and
Solvency
mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such
32
Persons ability to pay such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or a transaction, for
which such Persons property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
Solvency Certificate
means a certificate of a senior financial executive of the
Borrower in form and substance reasonably satisfactory to the Administrative Agent.
SPC
has the meaning given to such term in
Section 10.06(h)
.
Spot Rate
has the meaning given to such term in
Section 1.07
.
Subordinated Debt
means any Indebtedness of any Loan Party that is subordinated to
the Obligations of such Loan Party under the Loan Documents.
Subordinated Debt Documents
means all agreements, indentures and instruments
pursuant to which any Subordinated Debt is issued, in each case as amended to the extent permitted
under the Loan Documents.
Subsidiary
of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares or securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a
Subsidiary
or to
Subsidiaries
shall refer
to a Subsidiary or Subsidiaries of the Borrower.
Sundance
means Sundance Channel L.L.C., a Delaware limited liability company.
Swap Contract
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a
Master Agreement
), including any such
obligations or liabilities under any Master Agreement.
Swingline Borrowing
means a borrowing of Swingline Loans made by the Swingline
Lender pursuant to
Section 2.15(a)
33
Swingline Lender
means any Lender or the Administrative Agent as agreed to at any
time by the Borrower and such Lender or the Administrative Agent, in either case as designated in
accordance with this Credit Agreement. The initial Swingline Lender shall be JPMCB.
Swingline Loans
has the meaning given to such term in
Section 2.01(d)
.
Swingline Note
means a promissory note made by the Borrower in favor of the
Swingline Lender evidencing Swingline Loans made by the Swingline Lender, substantially in the form
of
Exhibit B-4
.
Swingline Sublimit
means $20,000,000. The Swingline Sublimit is part of, and not in
addition to, the Revolving Credit Facility.
Taxes
means all present or future taxes, assessments or other charges (including
withholdings) imposed by any Governmental Authority with authority to impose the same, including
any interest, additions to tax or penalties applicable thereto.
Term A Borrowing
means a borrowing consisting of simultaneous Term A Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each
of the Term A Lenders pursuant to
Section 2.01(a)
.
Term A Commitment
means, as to each Term A Lender, its obligation to make Term A
Loans to the Borrower pursuant to
Section 2.01(a)
in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Term A Lenders name on
Schedule 2.01
under the caption Term A Commitment or opposite such caption in the
Assignment and Assumption pursuant to which such Term A Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Credit
Agreement.
Term A Facility
means at any time (a) on or prior to the Closing Date, the aggregate
amount of the Term A Commitments at such time and (b) thereafter, the aggregate principal amount of
the Term A Loans of all Term A Lenders outstanding at such time.
Term A Lender
means (a) at any time on or prior to the Closing Date, any Lender that
has a Term A Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term A Loans at such time.
Term A Loan
means an advance made by any Term A Lender under the Term A Facility.
Term A Note
means a promissory note made by the Borrower in favor of a Term A Lender
evidencing Term A Loans made by such Term A Lender, substantially in the form of
Exhibit
B-1
.
Term B Borrowing
means a borrowing consisting of simultaneous Term B Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each
of the Term B Lenders pursuant to
Section 2.01(b)
.
Term B Commitment
means, as to each Term B Lender, its obligation to make Term B
Loans to the Borrower pursuant to
Section 2.01(b)
in an aggregate principal amount at
34
any one time outstanding not to exceed the amount set forth opposite such Lenders name on
Schedule 2.01
under the caption Term B Commitment or opposite such caption in the
Assignment and Assumption pursuant to which such Term B Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Credit
Agreement.
Term B Facility
means at any time (a) on or prior to the Closing Date, the aggregate
amount of the Term B Commitments at such time and (b) thereafter, the aggregate principal amount of
the Term B Loans of all Term B Lenders outstanding at such time.
Term B Lender
means (a) at any time on or prior to the Closing Date, any Lender that
has a Term B Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term B Loans at such time.
Term B Loan
means an advance made by any Term B Lender under the Term B Facility.
Term B Note
means a promissory note made by the Borrower in favor of a Term B
Lender, evidencing Term B Loans made by such Term B Lender, substantially in the form of
Exhibit B-2
.
Term Borrowing
means a Term A Borrowing, Term B Borrowing or Incremental Term
Borrowing, if any, as the context may require.
Term Commitment
means a Term A Commitment, Term B Commitment or Incremental Term
Commitment, if any, as the context may require.
Term Facility
means, at any time, the Term A Facility, Term B Facility or
Incremental Term Facility, if any, as the context may require.
Term Lender
means, at any time, a Term B Lender, Term B Lender or Incremental Term
Lender, if any, as the context may require.
Term Loan
means a Term A Loan, Term B Loan or Incremental Term Loan, if any, as the
context may require.
Termination Event
means (i) a Reportable Event, (ii) the termination of a Plan, or
the filing of a notice of intent to terminate a Plan, or the treatment of a Plan amendment as a
termination under Section 4041(e) of ERISA, (iii) the institution of proceedings to terminate a
Plan under Section 4042 of ERISA or (iv) the appointment of a trustee to administer any Plan under
Section 4042 of ERISA.
Total Interest Expense
means, for any period, the sum of (i) the aggregate amount of
interest accrued during such period in respect of Indebtedness (including the interest component of
rentals in respect of Capital Lease Obligations) of the Borrower and the Restricted Subsidiaries
(determined on a consolidated basis), other than obligations under any Guarantee permitted under
subparagraph (x) of
Section 7.16
, (ii) the aggregate amount of fees accrued in respect of
the Letters of Credit hereunder during such period and (iii) the aggregate amount of Commitment
Fees accrued hereunder during such period. For purposes of this definition, the amount of interest
accrued in respect of Indebtedness for any period (A) shall be increased (to the extent not already
treated as interest expense or income, as the case may be) by the excess, if any,
35
of amounts payable by the Borrower and/or any Restricted Subsidiary arising under any interest
rate Swap Contract during such period over amounts receivable by the Borrower and/or any Restricted
Subsidiary thereunder (or reduced by the excess, if any, of such amounts receivable over such
amounts payable) and interest on a Capital Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Borrower to be the rate of interest implicit in such
Capital Lease Obligation in accordance with GAAP and (B) shall be increased or reduced, as the case
may be, by the amount of interest accrued during such period in respect of Indebtedness of the
Borrower or any Restricted Subsidiary in respect of assets acquired or disposed of (including by
means of any redesignation of any Subsidiary pursuant to
Section 7.08(c)
) by the Borrower
or any Restricted Subsidiary on or after the first day of such period, determined on a pro forma
basis reasonably satisfactory to the Administrative Agent (it being agreed that it shall be
satisfactory to the Administrative Agent that such pro forma calculations may be based upon GAAP as
applied in the preparation of the financial statements for the Borrower, delivered in accordance
with
Section 7.01
rather than as applied in the financial statements of the Person whose
assets were acquired and may include, in the Borrowers discretion, a reasonable estimate of
savings resulting from any such acquisitions or dispositions, as though the Borrower or such
Restricted Subsidiary acquired or disposed of such assets on the first day of such period.
Total Outstandings
means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
Total Revolving Credit Outstandings
means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swingline Loans and L/C Obligations.
Trade Secrets
means all confidential and proprietary information, including, without
limitation, know-how, trade secrets, inventions, research and development information, databases
and data, pricing and cost information, business and marketing plans and customer and supplier
lists and information.
Trade Secret Licenses
means any agreement, whether written or oral, providing for
the grant by or to a Person of any right under a Trade Secret.
Trademark Licenses
means any agreement, whether written or oral, providing for the
grant by or to a Person of any right to use any Trademark.
Trademarks
means all trademarks, trade names, corporate names, company names,
business names, fictitious business names, service marks, elements of package or trade dress of
goods or services, logos and other source or business identifiers, together with the goodwill
associated therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all application in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof and all renewals thereof.
Transaction
means, collectively, (a) the entering into by the Loan Parties and their
applicable Subsidiaries of the Loan Documents to which they are or are intended to be a party, (b)
the payment of all fees and expenses incurred in connection with the Loan Documents, and (c) the
Distribution Transaction.
Type
means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
36
UCC
has the meaning given to such term in the Security Agreement.
UCP
means the Uniform Customs and Practice for Documentary Credits, 2007 revision,
International Chamber of Commerce Publication No. 600, as the same may be amended and in effect
from time to time.
Undisclosed Administration
means in relation to a Lender the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar
official by a supervisory authority or regulator under or based on the law in the country where
such Lender is subject to home jurisdiction supervision if applicable law requires that such
appointment is not to be publicly disclosed.
Unreimbursed Amount
has the meaning given to such term in
Section
2.03(c)(i)
.
Unrestricted Subsidiaries
means the Persons set forth on
Schedule 1.01(ii)
and any New Unrestricted Subsidiaries;
provided
that any Unrestricted Subsidiary
redesignated by the Borrower as a Restricted Subsidiary pursuant to and in compliance with
Section 7.08(c)
shall cease to be an Unrestricted Subsidiary.
Waivable Prepayment
has the meaning given to such term in
Section
2.04(b)(vii)
.
WE
means WE: Womens Entertainment LLC, a Delaware limited liability company.
Section 1.02
Other Interpretive Provisions
. With reference to this Credit Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words
include
,
includes
and
including
shall be deemed to be followed by the phrase
without limitation. The word
will
shall be construed to have the same meaning
and effect as the word
shall
. Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
organization document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in
any other Loan Document), (ii) any reference herein to any Person shall be construed to
include such Persons successors and assigns, (iii) the words
herein
,
hereof
and
hereunder
, and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time,
and (vi) the words
asset
and
property
(except when used as
accounting terms, in
37
which case GAAP shall apply) shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified
date, the word
from
means
from and including
; the words
to
and
until
each mean
to but excluding
; and the word
through
means
to and including
.
(c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Credit
Agreement or any other Loan Document.
Section 1.03
Accounting Terms
. (a)
Generally
. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Credit Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the audited financial statements,
except
as otherwise specifically prescribed herein.
(b)
Changes in GAAP
. (i) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or (x) in the case of any financial ratio applicable only to a Financial Covenant, the
Applicable Rate or Section 2.08(a), the Required Revolving/Term A Lenders and (y) in the case of
any other financial ratio, the Required Lenders, shall so request, the Administrative Agent, the
applicable Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders or Required Revolving/Term A Lenders, as applicable);
provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide
to the Administrative Agent and the Lenders financial statements and other documents required under
this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.
(ii) The Borrower may at any time elect to apply IFRS accounting principles in lieu of GAAP,
but prior to any such change shall notify the Administrative Agent of any intended change to the
manner in which any financial statements shall be prepared. Following such notification, if
requested by the Borrower or the Administrative Agent, the Borrower and the Administrative Agent
shall negotiate in good faith to amend any computation of any financial ratio or requirement set
forth in any Loan Document to preserve the original intent thereof in light of such change from
GAAP to IFRS. Unless the Required Lenders shall have objected to such required amendments within
10 Business Days after the Lenders shall have been notified thereof by the Administrative Agent (it
being agreed that the Administrative Agent shall give such notice promptly via the Approved
Electronic Platform after reaching agreement with the Borrower with respect to such required
amendments), such amendments shall become effective and shall be binding on all parties hereto;
provided
that, until so amended, (i) each such ratio or requirement shall continue to be
computed in accordance with GAAP and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and
other documents required under this Credit Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change to IFRS.
38
Section 1.04
Rounding
. Any financial ratios required to be maintained by the Borrower pursuant to this Credit
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).
Section 1.05
Times of Day
. Unless otherwise specified, all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).
Section 1.06
Letter of Credit Amounts
. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time;
provided
,
however
, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.
Section 1.07
Currency Equivalents Generally
. Any amount specified in this Credit Agreement (other than in
Articles II
,
IV
and
IX
) or any of the other Loan Documents to be in Dollars shall also include
the equivalent of such amount in any currency other than Dollars, such equivalent amount thereof in
the applicable currency to be determined by the Administrative Agent at such time on the basis of
the Spot Rate (as defined below) for the purchase of such currency with Dollars. For purposes of
this
Section 1.07
, the
Spot Rate
for a currency means the rate determined by the
Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate
for the purchase by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to
the date of such determination;
provided
that the Administrative Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent if the Person acting
in such capacity does not have as of the date of determination a spot buying rate for any such
currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01
The Loans
. (a)
The Term A Borrowing
. Subject to the terms and conditions set forth herein,
each Term A Lender severally agrees to make a single loan to the Borrower on the Closing Date in an
amount not to exceed such Term A Lenders Term A Commitment. The Term A Borrowing shall
consist of Term A Loans made simultaneously by the Term A Lenders in accordance with their
respective Applicable Percentage of the Term A Facility. Amounts borrowed under this
Section
2.01(a)
and repaid or prepaid may not be reborrowed. Term A Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
(b)
The Term B Borrowing
. Subject to the terms and conditions set forth herein, the
Initial Term B Lender agrees to make a single loan to the Borrower on the Closing Date in an amount
not to exceed such Initial Term B Lenders Term B Commitment;
provided
, that the Initial
Term B Lenders obligation to make such Term B Loan to the Borrower shall be satisfied by the
Initial Term B Lenders transfer of the Programming Network Business to the Borrower as
contemplated by the Distribution Agreement. The Term B Borrowing shall consist of Term B Loans
made by the Term B Lenders, including the Initial Term B Lender, in
39
accordance with their
respective Term B Commitments. Amounts borrowed under this
Section 2.01(b)
and repaid or
prepaid may not be reborrowed. Term B Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
(c)
The Revolving Credit Borrowings
. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
Revolving Credit Loan
) to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lenders Revolving Credit Commitment;
provided
,
however
, that after giving
effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not
exceed the Revolving Credit Facility, and (ii) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender, plus such Revolving Credit Lenders Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Credit
Lenders Revolving Credit Commitment. Within the limits of each Revolving Credit Lenders
Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow under this
Section 2.01(c)
, prepay under
Section 2.04
, and reborrow under
this
Section 2.01(c)
. Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.
(d)
The Swingline Borrowings
. Subject to the terms and conditions set forth herein,
including
Section 2.15,
the Swingline Lender, in its individual capacity, may in its sole
discretion make revolving loans (each a
Swingline Loan
and, collectively, the
Swingline Loans
) to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the Swingline
Sublimit;
provided
,
however
, that after giving effect to any Swingline Borrowing,
the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility. Amounts
borrowed under this
Section 2.01(d)
and repaid or prepaid may be reborrowed in accordance
with the provisions of this Credit Agreement.
Section 2.02
Borrowings, Conversions and Continuations of Loans
. (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or
Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrowers irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative Agent not later than
1:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans;
provided
,
howeve
r, that notice of (x) the initial Borrowing of Base Rate Loans
may be received by the Administrative Agent not later than 3:00 p.m. on the Closing Date and
(y) any conversion of such initial Borrowing to Eurodollar Rate Loans may be received by the
Administrative Agent no later than 5:00 p.m. on the third Business Day prior to the requested date
of conversion. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower. In the case
of any discrepancies between telephonic and written notices received by the Administrative Agent,
the telephonic notice shall be effective as understood in good faith by the Administrative Agent.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in
Section 2.03(c)
, each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is requesting a
40
Term A
Borrowing, a Term B Borrowing, a Revolving Credit Borrowing or an Incremental Term Borrowing, if
available, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Term Loans or Revolving Credit Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of
Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period,
it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice or a request or a deemed request by the
Swingline Lender for repayment of any outstanding Swingline Loans under
Section 2.15(b)
,
the Administrative Agent shall promptly notify each Lender of the amount of its Applicable
Percentage under the applicable Facility of the applicable Term A Loans, Term B Loans, Revolving
Credit Loans or Incremental Term Loans, if any, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans described in
Section 2.02(a)
. In
the case of a Term Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make
the amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agents Office not later than (i) one hour after receipt of notice from the
Administrative Agent on the Closing Date in the case of the initial Borrowing of Base Rate Loans
(as long as such notice is received prior to 3:00 p.m. on such day) or (ii) 3:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in
Section 5.02
(and, (x) if such Borrowing is the initial
Credit Extension,
Section 5.01
and (y) if such Borrowing is the Incremental Term Borrowing,
the applicable conditions set forth in the Incremental Term Supplement), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the books of JPMCB with
the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided
,
however
, that if, on the date a Committed Loan Notice with respect to a
Revolving Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment
in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, the Administrative Agent may notify the Borrower that Loans may only be converted into
or continued as Loans of certain specified Types and, thereafter, until no Default shall continue
to exist, Loans may not be converted into or continued as Loans of any Type other than one or more
of such specified Types.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
41
determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in JPMCBs prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Term A Borrowings, all conversions of Term A Loans from one
Type to the other, and all continuations of Term A Loans as the same Type, there shall not be more
than 12 Interest Periods in effect in respect of the Term A Facility. After giving effect to all
Term B Borrowings, all conversions of Term B Loans from one Type to the other, and all
continuations of Term B Loans as the same Type, there shall not be more than 12 Interest Periods in
effect in respect of the Term B Facility. After giving effect to all Revolving Credit Borrowings,
all conversions of Revolving Credit Loans from one Type to the other, and all continuations of
Revolving Credit Loans as the same Type, there shall not be more than 12 Interest Periods in effect
in respect of the Revolving Credit Facility.
Section 2.03
Letters of Credit
. (a)
The Letter of Credit Commitment
. (i) Subject to the terms and conditions set
forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit
Lenders set forth in this
Section 2.03
, (1) from time to time on any Business Day during
the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of
Credit for the account of the Borrower or its Subsidiaries, and to amend Letters of Credit
previously issued by it, in accordance with
Section 2.03(b)
, and (2) to honor drawings
under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings
thereunder;
provided
that after giving effect to any L/C Credit Extension with respect to
any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving
Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any
Revolving Credit Lender, plus such Lenders Applicable Revolving Credit Percentage of the
Outstanding Amount of all L/C Obligations shall not exceed such Lenders Revolving Credit
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of
Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrowers ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance, unless the Required Revolving Lenders
have approved such expiry date;
(B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have
approved such expiry date; or
(C) such Letter of Credit is to be denominated in a currency other than
Dollars.
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(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which the L/C Issuer in good faith deems
material to it;
(B) the issuance of such Letter of Credit would violate one or more policies
of the L/C Issuer generally applicable to the issuance of letters of credit;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or
(E) a default of any Lenders obligations to fund under
Section
2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements with the Borrower
or such Lender to eliminate the L/C Issuers risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not
be permitted at such time to issue such Letter of Credit in its amended form under the
terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith, and the L/C
Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in
Article IX
with respect to any acts taken or omissions suffered by the L/C
Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as if the term
Administrative Agent as used in
Article IX
included the L/C Issuer with respect
to such acts or omissions, and (B) as additionally provided herein with respect to the L/C
Issuer.
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(b)
Procedures for Issuance and Amendment of Letters of Credit
. (i) Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered
to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such
Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (1)
the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a
Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the L/C
Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Revolving Credit Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested date of issuance
or amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in
Article V
shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuers usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Revolving
Credit Lenders Applicable Revolving Credit Percentage times the amount of such Letter of
Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
(c)
Drawings and Reimbursements; Funding of Participations
. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 11:00
a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an
Honor Date
), the Borrower shall reimburse the L/C Issuer through the
44
Administrative Agent
in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of
the Honor Date, the amount of the unreimbursed drawing (the
Unreimbursed Amount
), and the
amount of such Revolving Credit Lenders Applicable Revolving Credit Percentage thereof. In such
event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in
Section 2.02
for the principal amount of
Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit
Commitments and the conditions set forth in
Section 5.02
(other than the delivery of a
Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this
Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing;
provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding