GARDEN STATE NEWSPAPERS, INC.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
Dated as of March 16, 1999
up to $300,000,000
8-5/8% Senior Subordinated Notes due 2011, Series A
8-5/8% Senior Subordinated Notes due 2011, Series B
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.08; 7.10
(b) 7.08; 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 11.03
(c) 11.03
313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 11.02
(d) 7.06
314 (a) 4.07; 4.08;
11.02
(b) N.A.
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N.A.
(d) N.A.
(e) 11.05
(f) N.A.
315 (a) 7.01(b)
(b) 7.05; 11.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 6.10; 9.04
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) 11.01
(b) 11.01
(c) 11.01
----------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. 1
SECTION 1.02. Incorporation by Reference of TIA. 19
SECTION 1.03. Rules of Construction. 20
ARTICLE TWO THE NOTES.
SECTION 2.01. Form and Dating. 20
SECTION 2.02. Execution and Authentication. 21
SECTION 2.03. Registrar and Paying Agent. 23
SECTION 2.04. Paying Agent To Hold Assets in Trust. 23
SECTION 2.05. Noteholder Lists. 24
SECTION 2.06. Transfer and Exchange. 24
SECTION 2.07. Replacement Notes. 25
SECTION 2.08. Outstanding Notes. 25
SECTION 2.09. Treasury Notes. 26
SECTION 2.10. Temporary Notes. 26
SECTION 2.11. Cancellation. 26
SECTION 2.12. Defaulted Interest. 27
SECTION 2.13. CUSIP Number. 27
SECTION 2.14. Deposit of Moneys 27
SECTION 2.15. Book-Entry Provisions for Global Notes. 28
SECTION 2.16. Special Transfer Provisions. 29
ARTICLE THREE REDEMPTION
SECTION 3.01. Notices to Trustee. 33
SECTION 3.02. Selection of Notes To Be Redeemed. 33
SECTION 3.03. Notice of Redemption. 33
SECTION 3.04. Effect of Notice of Redemption. 34
SECTION 3.05. Deposit of Redemption Price. 34
SECTION 3.06. Notes Redeemed in Part. 35
ARTICLE FOUR COVENANTS
SECTION 4.01. Payment of Notes. 35
SECTION 4.02. Maintenance of Office or Agency. 36
SECTION 4.03. Corporate Existence. 36
SECTION 4.04. Payment of Taxes and Other Claims. 36
SECTION 4.05. Maintenance of Properties and Insurance. 37
SECTION 4.06. Compliance Certificate; Notice of Default. 37
-3-
Page
----
SECTION 4.07. Compliance with Laws. 38
SECTION 4.08. Commission Reports. 39
SECTION 4.09. Waiver of Stay, Extension or Usury Laws. 39
SECTION 4.10. Limitation on Restricted Payments. 40
SECTION 4.11. Limitation on Transactions with Affiliates. 42
SECTION 4.12. Limitation on Additional Debt. 43
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries. 44
SECTION 4.14. Limitation on Restricted and Unrestricted
Subsidiaries. 44
SECTION 4.15. Limitation on Senior Subordinated Debt. 45
SECTION 4.16. Change of Control. 45
SECTION 4.17. Limitation on Sales of Assets. 48
SECTION 4.18. Limitation on Liens Securing Certain Debts. 49
SECTION 4.19. Limitation on Business. 49
SECTION 4.20. Investment Company Act. 50
ARTICLE FIVE SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. 50
SECTION 5.02. Successor Corporation Substituted. 51
ARTICLE SIX DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. 52
SECTION 6.02. Acceleration. 54
SECTION 6.03. Other Remedies. 55
SECTION 6.04. Waiver of Past Defaults. 55
SECTION 6.05. Control by Majority. 55
SECTION 6.06. Limitation on Suits. 56
SECTION 6.07. Rights of Holders To Receive Payment. 56
SECTION 6.08. Collection Suit by Trustee. 56
SECTION 6.09. Trustee May File Proofs of Claim. 57
SECTION 6.10. Priorities. 57
SECTION 6.11. Undertaking for Costs. 58
ARTICLE SEVEN TRUSTEE
SECTION 7.01. Duties of Trustee. 58
SECTION 7.02. Rights of Trustee. 60
SECTION 7.03. Individual Rights of Trustee. 61
SECTION 7.04. Trustee's Disclaimer. 61
SECTION 7.05. Notice of Default. 61
-4-
Page
----
SECTION 7.06. Reports by Trustee to Holders. 62
SECTION 7.07. Compensation and Indemnity. 62
SECTION 7.08. Replacement of Trustee. 63
SECTION 7.09. Successor Trustee by Xxxxxx, Etc. 64
SECTION 7.10. Eligibility; Disqualification. 64
SECTION 7.11. Preferential Collection of Claims Against Company. 65
ARTICLE EIGHT SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE
SECTION 8.01. Termination of Company's Obligations. 65
SECTION 8.02. Acknowledgment of Discharge by Trustee. 68
SECTION 8.03. Application of Trust Money. 69
SECTION 8.04. Repayment to the Company. 69
SECTION 8.05. Reinstatement. 69
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. 70
SECTION 9.02. With Consent of Holders. 70
SECTION 9.03. Compliance with TIA 72
SECTION 9.04. Revocation and Effect of Consents. 72
SECTION 9.05. Notation on or Exchange of Notes. 73
SECTION 9.06. Trustee To Sign Amendments, Etc. 73
ARTICLE TEN SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt. 74
SECTION 10.02. Liquidation; Dissolution; Bankruptcy. 74
SECTION 10.03. Default on Senior Debt. 75
SECTION 10.04. No Suspension of Remedies. 76
SECTION 10.05. When Distributions Must Be Paid Over. 76
SECTION 10.06. Notice by Company. 77
SECTION 10.07. Subrogation. 78
SECTION 10.08. Relative Rights. 78
SECTION 10.09. Subordination May Not Be Impaired by Company. 78
SECTION 10.10. Distribution or Notice to Representative. 79
SECTION 10.11. Rights of Trustee and Paying Agent. 79
SECTION 10.12. Authorization to Effect Subordination. 80
SECTION 10.13. Reliance on Judicial Order or Certificate of
Liquidating Agent. 80
-5-
Page
----
ARTICLE ELEVEN
SECTION 11.01. TIA Controls. 80
SECTION 11.02. Notices. 81
SECTION 11.03. Communications by Holders with Other Holders. 82
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. 82
SECTION 11.05. Statements Required in Certificate or Opinion. 82
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar. 83
SECTION 11.07. Legal Holidays. 83
SECTION 11.08. Governing Law. 83
SECTION 11.09. No Adverse Interpretation of Other Agreements. 83
SECTION 11.10. No Recourse Against Others 83
SECTION 11.11. Successors. 84
SECTION 11.12. Duplicate Originals. 84
SECTION 11.13. Severability. 84
SIGNATURES. 85
Exhibit A - Form of Series A Note. A-1
Exhibit B - Form of Series B Note.
Exhibit C - Form of Legend for Global Notes.
Exhibit D - Form of Certificate To Be Delivered
in Connection with Transfers to
Non-QIB Accredited Investors
Exhibit E - Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S.
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
-6-
INDENTURE, dated as of March 16, 1999, between Garden State
Newspapers, Inc., a Delaware corporation (the "COMPANY"), and The Bank of New
York, a New York banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 8-5/8%
Senior Subordinated Notes due 2011, Series A, and 8-5/8% Senior Subordinated
Notes due 2011, Series B, to be issued in exchange for the 8-5/8% Senior
Subordinated Notes due 2011, Series A, pursuant to a registration rights
agreement and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Notes, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid and binding obligations of the Company and to
make this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
8-5/8% Senior Subordinated Notes due 2011, Series A and Series B:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" with respect to any Person, means (i) Debt of an
entity, which entity is acquired by Garden State or any of its Subsidiaries
after the date of this Indenture, (ii) Debt assumed which is secured by assets
acquired by the Company or any of its Subsidiaries, PROVIDED that the Debt in
clauses (i) and (ii) is outstanding at the time of the acquisition of such
entity or such assets, is not created in contemplation of such acquisition and,
in the case of the acquisition of an entity, is not, directly or indirectly,
recourse (including by way of set-off) to Garden State or its Restricted
Subsidiaries or any of their respective assets, other than to the entity and its
Subsidiaries so acquired and the assets of the entity and its Subsidiaries so
acquired, or (iii) Refinancings of Debt described in clauses (i) and (ii),
PROVIDED that in the case of Debt described in clause (i), the recourse with
respect to such Refinancing Debt is limited to the same extent as the Debt so
Refinanced.
-8-
"Adjusted Consolidated Operating Cash Flow" of a Person means the
Consolidated Operating Cash Flow of such Person as determined on a consolidated
basis in accordance with GAAP, consistently applied, after giving effect to the
following: (i) if, during the period in which Consolidated Operating Cash Flow
is being calculated, such Person or any of its Subsidiaries completed an Asset
Sale, Consolidated Operating Cash Flow for such period shall be reduced by an
amount equal to the pro forma Consolidated Operating Cash Flow (if positive)
directly attributable to the assets which are the subject of such Asset Sale for
the period or increased by an amount equal to the pro forma Consolidated
Operating Cash Flow (if negative) directly attributable thereto for such period;
and (ii) if, during the period in which Consolidated Operating Cash Flow is
being calculated, such Person or any of its Subsidiaries completes an
acquisition of any Person or business which immediately after such acquisition
is a Subsidiary of such Person or whose assets are held directly by such Person
or a Subsidiary of such Person, pro forma Consolidated Operating Cash Flow shall
be computed so as to give pro forma effect to the acquisition of such Person or
business. Any such pro forma calculation may include (a) any adjustments that
would, in the reasonable determination of the Company, set forth in an Officers'
Certificate, satisfy the requirements of Rule 11-02(a) of Regulation S-X as if
included in a registration statement filed with the Commission, and (b) any
other operating expense reductions reasonably expected to result from any
acquisition of assets, if such expected reductions are (i) set forth in
reasonable detail in an operating plan, and (ii) limited to operating expenses
specified in such plan (and, if any such reductions are set forth as a range,
the lowest amount of such range) that would otherwise have resulted in the
payment of cash within twelve months after the date of consummation of such
transaction, net of any operating expenses (other than extraordinary items,
non-recurring or temporary charges and other similar one-time expenses)
reasonably expected to be incurred to implement such plan or to obtain goods or
services (including without limitation personnel, occupancy and newsprint
expenses) in replacement of goods and services that are being curtailed or
eliminated to result in such expected reductions, and that are to be paid in
cash during such twelve-month period, and such Officers' Certificate so states.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when
-9-
used with respect to any Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" having meanings correlative to the foregoing. A lender to such
Person or any of its Subsidiaries shall not, as a result of such loan and any
credit or similar agreement entered into in connection therewith, be deemed an
Affiliate of such Person.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"ANI" means Affiliated Newspapers Investments, Inc., a Delaware
corporation, and its successors.
"ANI Senior Discount Debentures" means ANI's 13 1/4% Senior Discount
Debentures due 2006.
"Asset Sale" means the sale, transfer, lease, assignment, conveyance
or other disposition (other than sales of inventory in the ordinary course of
business consistent with past practice) by Garden State or its Restricted
Subsidiaries of any assets of Garden State other than capital stock of an
Unrestricted Subsidiary, whether owned or outstanding on the date of this
Indenture or acquired thereafter, in one or more related transactions, in each
case having an aggregate fair market value in excess of $5.0 million. Asset Sale
shall include the disposition of (i) any capital stock of any Restricted
Subsidiary of Garden State or (ii) all or substantially all of the properties or
assets relating to any newspaper or groups of newspapers owned by Garden State
or any of its Restricted Subsidiaries, in either case having an aggregate fair
market value in excess of $5.0 million.
"Average Life" means, as of the date of any determination, with
respect to any Debt, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from the date of the transaction or event
giving rise to the need to calculate the Average Life of such Debt to the date,
or dates, of each successive scheduled principal payment of such Debt multiplied
by (b) the amount of each such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
-10-
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors or other equivalent governing body of such
Person.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means any rental obligation that, in
accordance with GAAP, is required to be classified and accounted for as a
capitalized lease and the amount of Debt represented by such obligation shall be
the capitalized amount of such obligation determined in accordance with GAAP;
and the stated maturity thereof shall be the date of the last payment of rent or
any other amount due in respect of such obligation.
"Capital Stock" of any Person means any and all shares, interests
(including partnership interests), warrants, rights, options or other interests,
participations or other equivalents of or interests in (however designated) the
equity of such Person, including common stock or preferred stock, whether now
outstanding or issued after the date of this Indenture, but excluding any debt
securities convertible into or exchangeable for such equity.
"Cash Equivalents" means (i) readily marketable obligations of or
obligations guaranteed by the United States of America or issued by any agency
thereof and backed by the full faith and credit of the United States of America,
(ii) readily marketable direct obligations issued by any state of the United
States of America or any political subdivision having a rating in one of the two
highest rating categories obtainable from either Xxxxx'x Investors Service, Inc.
or Standard & Poor's Corporation, (iii) commercial paper having a rating in one
of the two highest rating categories of Xxxxx'x Investors Service, Inc., or
Standard & Poor's Corporation, (iv) certificates of deposit issued by, bankers'
acceptances and deposit accounts of, and time deposits with, commercial banks of
recognized standing chartered in the United States of America with capital,
surplus and undivided profits aggregating in excess of $500.0 million, (v)
agreements to sell or repurchase securities of the kind described in clauses (i)
and
-11-
(ii) above, and (vi) shares of money market funds that invest solely in
Permitted Investments of the kind described in clauses (i) through (v) above.
"Change of Control" means the earlier to occur of (i) the Permitted
Holders' failure, individually or as a group, to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate, of a majority of the outstanding shares of Common
Stock or Voting Stock of Garden State, on a fully diluted basis, and (ii)
Xxxxxxx Xxxx Xxxxxxxxx ceasing to be the chief executive officer of Garden State
and not being replaced within 90 days by a media executive of comparable
experience.
"Change of Control Date" has the meaning provided in Section 4.16.
"Change of Control Offer" has the meaning provided in Section 4.16.
"Change of Control Payment Date" has the meaning provided in Section
4.16.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's common
stock, whether now outstanding or issued after the date of this Indenture.
"Company" or "Garden State" means the party named as such in this
Indenture until a successor replaces it pursuant to this Indenture and
thereafter means such successor.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the aggregate of all cash and non-cash interest expense
(including any original issue discount attributable to the issuance of any debt
security as part of or with any other security) with respect to all outstanding
Debt of such Person and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, the interest component of
Capitalized Lease Obligations, all capitalized interest, and the interest
portion of any
-12-
deferred payment obligations for such period; PROVIDED that if any such
Subsidiary is not a Wholly Owned Subsidiary of such Person, interest expense of
such Subsidiary and its Subsidiaries shall be included only to the extent of
such Person's consolidated common equity ownership on a fully diluted basis
therein.
"Consolidated Net Worth" of any Person means, at any date, all
amounts that would, in conformity with GAAP, be included under shareholders'
equity on the consolidated balance sheet of such Person as at such date less any
amounts attributable to Disqualified Stock.
"Consolidated Operating Cash Flow" with respect to Garden State for
any period means (A) revenues less (B) the sum of (i) cost of sales, (ii)
management fees and (iii) selling, general and administrative expenses, in each
case, of Garden State and its Restricted Subsidiaries, for such period,
determined on a consolidated basis and in accordance with GAAP, PLUS (C) the
lesser of (i) dividends received from Investments in a Permitted Business not
qualifying as a Subsidiary hereunder for such period and (ii) Garden State's and
its Restricted Subsidiaries' percentage interest in the net income of such
Permitted Business, PROVIDED that, (x) if any such Restricted Subsidiary is not
a Wholly Owned Subsidiary of Garden State, revenues, cost of sales, management
fees and selling, general and administrative expenses of such Restricted
Subsidiary and its Restricted Subsidiaries shall be included only to the extent
of Garden State's common equity ownership on a fully diluted basis therein and
(y) operating cash flow of any Subsidiary shall be excluded if and to the extent
that, the declaration of dividends or distribution by that Subsidiary of such
operating cash flow is not, at the time, permitted directly or indirectly, by
the terms of its charter, or any agreement, instrument, judgment, decree, order,
statute, rule or government regulation applicable to that Subsidiary.
"Cumulative Credit" means (x) Consolidated Operating Cash Flow of
Garden State and its Restricted Subsidiaries from and after the first day of the
first full fiscal quarter after the Issue Date to the end of the fiscal quarter
immediately preceding the date of the proposed Restricted Payment, or, if such
Consolidated Operating Cash Flow for such period is negative, minus the amount
by which such Consolidated Operating Cash Flow is negative less (y) 150% of the
cumulative Consolidated Interest Expense of Garden State for such period.
-13-
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debt" of any Person means, without duplication, (i) the principal
in respect of (A) indebtedness of such Person for money borrowed (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof) and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is responsible
or liable (other than those payable to government agencies to defer the payment
of workers' compensation liabilities, taxes, assessments or other obligations,
and provided in the ordinary course of business of such Person); (ii) all
Capitalized Lease Obligations of such Person; (iii) all obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts payable and
other accrued current liabilities arising in the ordinary course of business and
consistent with past practice); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, other than letters of credit entered into in the
ordinary course of business that either are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third Business
Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit); (v) the amount of all Disqualified Stock of
such Person (but excluding any accrued dividends thereon); (vi) all obligations
of the type referred to in clauses (i) through (v) of other Persons and all
dividends of other Persons for the payment of which, in either case, such Person
is responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including guarantees of such obligations and dividends; and (vii) all
obligations of the type referred to in clauses (i) through (vi) of other Persons
secured by any Lien on any property, asset or Capital Stock of such Person
(whether or not such obligation is assumed by such Person), the amount of such
obligation being deemed to be the lesser of the value of such property or assets
or the amount of the obligation so secured.
"Declaration" has the meaning provided in Section 6.02.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
-14-
"Default Amount" has the meaning provided in Section 6.02.
"Depository" means, with respect to the Notes issuable or issued in
whole or in part as Global Securities, The Depository Trust Company, New York,
New York, or any successor thereto registered as a clearing agency under the
Exchange Act or other applicable statute or regulation.
"Designated Senior Debt" means all obligations of the Company under
the Garden State Credit Facility and any other Senior Debt permitted hereunder
the principal amount of which is $25.0 million or more that has been designated
by the Company as Designated Senior Debt.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, (ii) is subject to a mandatory offer to purchase, (iii) is
convertible or exchangeable for Debt or Disqualified Stock or (iv) is redeemable
at the option of the holder thereof, in whole or in part, in each case on or
prior to the first anniversary of the stated maturity of the Notes.
"Equity Offering" has the meaning provided in paragraph 6 of the
Notes.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.17.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means the 8-5/8% Senior Subordinated Notes due
2011, Series B, to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement.
"Exchange Offer" has the meaning provided in the Registration Rights
Agreement.
-15-
"Exchange Offer Registration Statement" has the meaning provided in
the Registration Rights Agreement.
"Existing Debt" means Debt of Garden State and its Restricted
Subsidiaries (other than the Garden State Credit Facility) outstanding on the
date of this Indenture.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"Fairness Condition" has the meaning provided in Section 4.11.
"Garden State" or the "Company" means the party named as such in
this Indenture until a successor replaces it pursuant to this Indenture and
thereafter means such successor.
"Garden State Credit Facility" means the Credit Agreement among
Garden State, the financial institutions named therein and The Bank of New York,
as agent thereunder, as amended, substituted, refinanced (including successive
refinancings), extended or renewed without restriction as to the new terms
contained therein, except as to the total amount outstanding provided under
Section 4.12 and as provided in Section 4.18.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board as they are in effect on the date of this Indenture.
"Global Note" when used with respect to any Notes issued hereunder,
means a Note which is executed by Garden State and authenticated and delivered
by the Trustee to the Depository or pursuant to the Depository's instructions in
accordance with the provisions set forth herein, and pursuant to the request of
Garden State, which shall be registered in the name of the Depository or its
nominee and which shall
-16-
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Notes or any portion thereof, in
either case having the same terms.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation, contingent or otherwise, of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or indirect, contingent
or otherwise, of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation of such other
Person (whether arising by virtue of participation arrangements, by agreement to
keep well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring the obligee of such Debt or other obligation in any
other manner of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), PROVIDED that the term "guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"IAI Global Note" means a permanent Global Note in registered form
representing the aggregate principal amount of Notes sold to Institutional
Accredited Investors.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Initial Notes" means the 8-5/8% Senior Subordinated Notes due 2011,
Series A, of the Company.
"Initial Purchasers means Xxxxxxx, Xxxxx & Co., BNY Capital Markets,
Inc., NationsBanc Xxxxxxxxxx Securities LLC and First Union Capital Markets
Corp.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Notes.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
-17-
"Investment" means any direct or indirect advance, loan (other than
advances or loans to customers in the ordinary course of business, which are
recorded at the time made as accounts receivable on the balance sheet of the
Person making such advance or loan), guarantee or other extension of credit or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities issued by, any other Person.
"Issue" means to issue, assume, Guarantee, incur or otherwise become
liable for; PROVIDED, HOWEVER, that any Debt or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary of another Person (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be issued
by such Subsidiary at the time it becomes a Subsidiary of such other Person.
"Issue Date" means the date on which any Note is originally issued
and with respect to any Note issued in transfer, exchange or replacement, means
the date of the original issue of the Note to which such transfer, exchange or
replacement Note relates.
"Legal Holiday" has the meaning provided in Section 11.07.
"Leverage Ratio" means, as of any date, the ratio of (A) total Debt
of Garden State and its Restricted Subsidiaries on a consolidated basis as of
such date to (B) Trailing Adjusted Consolidated Operating Cash Flow of Garden
State as of such date; PROVIDED, HOWEVER, that the Debt of any Restricted
Subsidiary (and its Restricted Subsidiaries) that is not a Wholly Owned
Subsidiary, on a fully diluted basis, of Garden State shall be included pro-rata
only to the extent of Garden State's common equity ownership interest therein,
on a fully diluted basis.
"Lien" means any lien, mortgage, charge, pledge, security interest,
or other encumbrance of any kind (including any conditional sale or other title
retention agreement and any lease in the nature thereof), whether or not filed,
recorded or otherwise perfected under applicable law (including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code
-18-
(or equivalent statute) of any jurisdiction.)
"Management Agreement" means the Management Agreement, dated July 1,
1988, between ANI and MediaNews, as the same may be amended, modified or
supplemented in accordance with its terms.
"Maturity Date" means July 1, 2011.
"MediaNews" or "MNG", means MediaNews Group, Inc. a Delaware
corporation and its successors.
"MediaNews Technologies" or "MNT" means MediaNews Technologies, a
division of MNG which operates and manages ANI's and its Affiliates' electronic
media business.
"Net Cash Proceeds" from an Asset Sale or issuance of Capital Stock
means cash payments received by way of conversion into cash or Cash Equivalents
of any note or other obligation received in connection with such Asset Sale or
issuance or by way of deferred payment of principal pursuant to, or liquidation
of, any note or installment receivable or otherwise (but only as and when
received therefrom), in each case net of all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all income taxes
required to be accrued as a liability under GAAP, as a consequence of such Asset
Sale or issuance of Capital Stock.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Notes" means, collectively, the Initial Notes, the Exchange Notes
and the Private Exchange Notes, if any, treated as a single class of securities
under this Indenture.
"Obligations" means all obligations for principal, premium, interest
(including post-petition interest), penalties, fees, indemnification,
reimbursements, damages and other liabilities payable under the documentation
governing any Debt.
"Offering Circular" means the Offering Circular dated March 10, 1999
regarding the Notes and any supplement thereto.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of such
Person.
-19-
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"144A Global Note" means a permanent Global Note in registered form
representing the aggregate principal amount of Notes sold in reliance on Rule
144A under the Securities Act.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee complying with the requirements of Sections 11.04
and 11.05, as they relate to the giving of an Opinion of Counsel. Unless
otherwise required by the TIA, the legal counsel may be an employee of or
counsel to Garden State or the Trustee.
"Participant" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03, except
that, for the purposes of Articles Three and Eight and Sections 4.16 and 4.17,
the Paying Agent shall not be Garden State or a Subsidiary of Garden State.
"Permitted Business" means the (i) ownership and operation of
regional, local and other newspapers and (ii) other businesses directly related
to the Company's newspaper operations, including broadcast, electronic media,
and other businesses deriving a majority of its revenue from advertising.
"Permitted Holders" means each of Xxxxxxx Xxxx Xxxxxxxxx and Xxxxxxx
X. Xxxxxxx, members of their families and trusts for the benefit of such
Persons.
"Permitted Intercompany Payments" means (i) payments by the Company
to MNG in respect of management fees for services actually rendered to Garden
State and determined in a manner consistent with that described in the Offering
Circular not to exceed $4.0 million for fiscal 1999, and increasing 10% per
annum in each fiscal year thereafter and (ii) payment by the Company to MNT in
respect of its allocated share of electronic media related expenses.
"Permitted Investments" means (i) Investments by a Restricted
Subsidiary of Garden State in Garden State or a Restricted Subsidiary of Garden
State or Investments by Garden
-20-
State in a Restricted Subsidiary of Garden State, (ii) Investments in cash or
Cash Equivalents, (iii) Investments by Garden State or by any of its Restricted
Subsidiaries in a Permitted Business, including, but not limited to, joint
ventures or other business alliances in the ordinary course of business,
PROVIDED that the other investors in such joint venture or business alliance are
not Affiliates of ANI, (iv) Investments of Garden State and its Restricted
Subsidiaries arising as a result of any Asset Sale otherwise complying with the
terms of this Indenture, and (v) other Investments (other than Investments
specified in clauses (i) through (iv) above) in an aggregate amount, as valued
at the time each such Investment is made, not exceeding $25.0 million.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Physical Notes" shall have the meaning provided in Section 2.01.
"Post-Petition Interest" means any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law.
"Preferred Stock," as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation. Preferred Stock of any Person shall include Disqualified Stock of
such Person.
"principal" of any Debt (including the Notes) means the principal
amount of such Debt plus the premium, if any, on such Debt.
"Private Exchange Notes" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Initial Notes in the form set forth on EXHIBIT
-21-
A, unless Garden State determines otherwise in accordance with applicable law.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act as interpreted by the
Company in consultation with its independent certified public accountants.
"Qualified Capital Stock" shall mean any Capital Stock which is not
Disqualified Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue Debt in
exchange or replacement for, such Debt. "Refinanced" and "Refinancing" shall
have correlative meanings.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the exchange and registration
rights agreement dated March 16, 1999 between Garden State and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent Global Note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Debt; PROVIDED that if,
and for so long as, any Designated Senior Debt lacks such a representative, then
the
-22-
Representative for such Designated Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such Designated Senior
Debt in respect of any Designated Senior Debt.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Note" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
PROVIDED, HOWEVER, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Payment" means (i) any dividend or distribution on or in
respect of any shares of Capital Stock of Garden State to the direct or indirect
holders (in their capacities as such) of Capital Stock of Garden State; (ii) the
redemption, repurchase, retirement or other acquisition for value of any Capital
Stock of Garden State; (iii) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary on the basis of the Investment by the Company therein,
(iv) any Restricted Investment by Garden State or any Restricted Subsidiary of
Garden State, PROVIDED that Restricted Payments shall not include (a) any
dividend or distribution declared or paid by any Restricted Subsidiary of Garden
State to Garden State or any of its Restricted Subsidiaries, or (b) the
redemption, purchase, retirement or other acquisition for value by Garden State
or any of its Restricted Subsidiaries of any Capital Stock of Garden State held
by Garden State or its Restricted Subsidiaries. For purposes of determining the
amount expended for Restricted Payments, cash distributed or invested shall be
valued at the face amount thereof and property other than cash shall be valued
at its fair market value.
"Restricted Subsidiary" means a Subsidiary of the Company other than
an Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Senior Debt" means all Obligations of Garden State with respect to
any Debt, whether outstanding on the date of
-23-
this Indenture or thereafter created, incurred or assumed, unless, in the case
of any particular Debt, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such Debt
shall not be senior in right of payment to the Notes. Notwithstanding the
foregoing, Senior Debt shall not include: (i) any Debt of Garden State to any
Subsidiary of Garden State; (ii) any Debt to, or guaranteed on behalf of, any
Affiliate, director, officer or employee of Garden State or any Restricted
Subsidiary (including, without limitation, amounts owed for compensation); (iii)
Debt and other amounts incurred in connection with obtaining goods, materials or
services owing to trade creditors; (iv) Disqualified Stock; (v) any liability
for federal, state, local or other taxes owed or owing by Garden State; (vi)
Debt incurred in violation of the Indenture provisions set forth under Section
4.12; and (vii) Debt which is, by its express terms, junior in right of payment
to the Notes.
"Senior Subordinated Secured Notes" means the Company's $100,000,000
12% Senior Subordinated Secured Notes due 2004.
"Significant Subsidiary" means any Restricted Subsidiary of Garden
State which at the time of determination either (A) had assets which, as of the
date of Garden State's most recent quarterly consolidated balance sheet,
constituted at least 5% of Garden State's total assets on a consolidated basis
as of such date, in each case determined in accordance with GAAP, or (B) had
revenues for the twelve-month period ending on the date of Garden State's most
recent quarterly consolidated statement of income which constituted at least 5%
of Garden State's total revenues on a consolidated basis for such period.
"Stated Maturity," when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable, and, when used with respect to any other Debt, means the
date specified in the instrument governing such Debt as the fixed date on which
the principal of such Debt or any installment of interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation
the majority of whose Voting Stock is at the time, directly or indirectly, owned
by such Person, by one or more Subsidiaries of such Person or by such Person and
one or more
-24-
Subsidiaries thereof, (ii) a partnership, joint venture or limited liability
company, with respect to which such Person under the applicable partnership
agreement, joint venture agreement or limited liability company operating
agreement owns a majority of the equity interests therein and either has the
power to appoint a majority of the board of managers thereof, or otherwise has
the power to direct the policies, management and affairs thereof through a
management agreement or otherwise (iii) any Person (other than a corporation,
partnership, joint venture or limited liability company) in which such Person,
one or more Subsidiaries thereof or such Person and one or more Subsidiaries
thereof, directly or indirectly, at the date of determination thereof has at
least a majority ownership interest and the power to direct the policies,
management and affairs thereof. For purposes of this definition, any director's
qualifying shares or investments by foreign nationals mandated by applicable law
shall be disregarded in determining the ownership of a Subsidiary.
"Survivor" has the meaning provided in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Trailing" means, at or in respect of any date, the twelve-month
period ending on the last day of the month immediately preceding such date for
which financial statements are available.
"Transaction" has the meaning provided in Section 4.11.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the Private Placement Legend in the form set forth in EXHIBIT
A, including, without limitation, the Exchange Notes.
-25-
"Unrestricted Subsidiary" means any Subsidiary (including its
Subsidiaries) so designated by a Board Resolution adopted by the Board of
Directors of the Company in accordance with Section 4.14. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall be deemed to be redesignated a
Restricted Subsidiary at any time if (a) the Company or any Restricted
Subsidiary (i) provides credit support for, or a guarantee of, any Debt of such
Unrestricted Subsidiary or any of its Subsidiaries (including any undertaking,
agreement or instrument evidencing such Debt) or (ii) is directly or indirectly
liable for any Debt of such Unrestricted Subsidiary or any of its Subsidiaries,
(b) a default with respect to any Debt of such Unrestricted Subsidiary or any of
its Subsidiaries (including any right which the holders thereof may have to take
enforcement action against any of them) would permit (upon notice, lapse of time
or both) any holder of any other Debt of the Company or any Restricted
Subsidiary to declare a default on such other Debt or cause the payment thereof
to be accelerated or payable prior to its final scheduled maturity or (c) such
Unrestricted Subsidiary or any of its Subsidiaries incurs Debt pursuant to which
the lender has recourse to any of the assets of Garden State or any of its
Restricted Subsidiaries.
"U.S. Government Obligations" means money or direct non-callable
obligations of, and obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means any Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares) is owned by the
applicable corporation or another Wholly Owned Subsidiary of the applicable
corporation.
SECTION 1.02. INCORPORATION BY REFERENCE OF XXX.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a
-26-
part of, this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING.
-27-
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of EXHIBIT A hereto. The Private Exchange
Notes and the Trustee's certificate of authentication relating thereto shall be
substantially in the form of EXHIBIT B hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company and the Trustee shall approve the form of the Notes and any notation,
legend or endorsement on them. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes annexed hereto as
EXHIBITS A AND B, shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company, and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A, Notes offered and
sold to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of one or more Global Notes,
substantially in the form set forth in EXHIBIT A deposited with the Trustee, as
custodian for the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided and shall bear the legend set forth in
EXHIBIT C. The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 2.16 may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in EXHIBIT A (the "PHYSICAL
NOTES").
All Notes offered and sold in reliance on Regulation S shall remain
in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement; PROVIDED, HOWEVER, that all of
the time periods specified in the Registration Rights Agreement to be complied
with by the Company have been so complied with.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
-28-
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue
in an aggregate principal amount not to exceed $200,000,000, (ii) Private
Exchange Notes from time to time only in exchange for a like principal amount of
Initial Notes, (iii) Unrestricted Notes from time to time only in exchange for
(A) a like principal amount of Initial Notes or (B) a like principal amount of
Private Exchange Notes, and (iv) any additional amounts of Notes in an aggregate
principal amount not to exceed $100,000,000, in each case upon a written order
of the Company in the form of an Officers' Certificate of the Company. Each such
written order shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Private Exchange Notes or Unrestricted Notes and whether (subject to
Section 2.01) the Notes are to be issued as Physical Notes or Global Notes and
such other information as the Trustee may reasonably request. The aggregate
principal amount of Notes outstanding at any time may not exceed $300,000,000,
except as provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, an authenticating agent may authenticate Notes whenever the
-29-
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency, where (a) Notes may
be presented or surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for payment ("Paying
Agent") and (c) notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company may also from time to time
designate one or more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency, for such purposes. The Company may act as its own Registrar or Paying
Agent except that for the purposes of Articles Three and Eight and Sections 4.15
and 4.16 neither the Company, any Subsidiary of the Company nor any of their
Affiliates shall act as Paying Agent. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional paying
agents reasonably acceptable to the Trustee. The term "Paying Agent" includes
any additional paying agent. The Company initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
-30-
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Notes (whether such assets have
been distributed to it by the Company or any other obligor on the Securities),
and shall notify the Trustee of any Default by the Company (or any other obligor
on the Securities) in making any such payment. If the Company or a Subsidiary of
the Company acts as Paying Agent, it shall segregate such assets and hold them
as a separate trust fund. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
SECTION 2.05. NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee before each Record Date and at such other times as the Trustee may
request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. TRANSFER AND EXCHANGE.
When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to exchange such Notes for an
equal principal amount of Notes of other authorized denominations, the Registrar
or co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; PROVIDED, HOWEVER, that the Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar or co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Notes at the
-31-
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Sections
2.02, 2.07, 2.10, 3.06, 4.16, 4.17 or 9.05). The Registrar or co-Registrar shall
not be required to register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Notes and ending at the close of business on the day of
such mailing and (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being redeemed in part.
SECTION 2.07. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Note is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note, including reasonable fees and expenses of counsel.
Every replacement Note shall constitute an additional obligation of the Company.
SECTION 2.08. OUTSTANDING NOTES.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. A Note
does not cease to be outstanding because the Company or any of its Affiliates
holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a BONA FIDE purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to
-32-
Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or a Subsidiary of the Company) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Notes payable on that date, then on and after that date such Notes cease
to be outstanding and interest on them ceases to accrue; PROVIDED, HOWEVER, that
to the extent the Trustee is enjoined from making payments to the Holders,
interest will continue to accrue until such time as the Trustee is not so
enjoined.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Company or an Affiliate (other than (i) any Affiliate who is an Affiliate
solely on account of his or its ownership of securities of the Company,
membership on the Board of Directors of the Company or employment by the Company
or any Affiliate of the Company, and (ii) any other Affiliate who is an
Affiliate solely on account of his or its relationship with any Person described
in clause (i) above, except in any case to the extent such Person is an
affiliate as defined in Section 316(a) of the TIA) shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which the Trustee actually knows are so owned shall be so
considered.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to Section
2.02 definitive Notes in exchange for temporary Notes.
-33-
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or a Subsidiary of the Company), and no one else, shall cancel and,
at the written direction of the Company, shall return all Notes surrendered for
transfer, exchange, payment or cancellation to the Company. Subject to Section
2.07, the Company may not issue new Notes to replace Notes that it has paid or
delivered to the Trustee for cancellation. If the Company shall acquire any of
the Notes, such acquisition shall not operate as a redemption or satisfaction of
the Debt represented by such Notes unless and until the same are surrendered to
the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it
shall, unless the Trustee fixes another record date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest to the Persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date fixed
by the Company for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder, with a
copy to the Trustee, a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes.
SECTION 2.14. DEPOSIT OF MONEYS.
-34-
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, or Change of Control Payment Date the
Company shall have deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such Interest
Payment Date, Maturity Date, Redemption Date, or Change of Control Payment Date
as the case may be, in a timely manner that permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, or Change of Control Payment Date as the case may be.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes 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 such Depository and (iii) bear legends as set forth in
EXHIBIT C.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, 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 Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes 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 the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor Depository is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a
-35-
request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b), the Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute and
the Trustee shall authenticate and deliver, one or more Physical Notes of
authorized denominations in an aggregate principal amount equal to the principal
amount of the beneficial interest in the Global Note so transferred.
(d) In connection with the transfer of a Global Note as an entirety
to beneficial owners pursuant to paragraph (b) of this Section 2.15, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.16. SPECIAL TRANSFER PROVISIONS.
(A) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS AND
NON-U.S. PERSONS. The following additional provisions shall apply with respect
to the registration of any proposed transfer of a Restricted Note to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
-36-
Restricted Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the second anniversary of
the Issue Date; PROVIDED, HOWEVER, that neither the Company nor any
Affiliate of the Company has held any beneficial interest in such note, or
portion thereof, at any time on or prior to the second anniversary of the
Issue Date or (y) (1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons), the
proposed transferee has delivered to the Registrar a certificate
substantially in the form of EXHIBIT D hereto and any legal opinions and
certifications required thereby and (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar a
certificate substantially in the form of EXHIBIT E hereto;
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the IAI Global Note or Regulation S Global
Note, as the case may be, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required by clause
(y) of paragraph (i) above, the Registrar shall register the transfer and
reflect on its books and records the date and an increase in the principal
amount of the IAI Global Note or Regulation S Global Note, as the case may
be, in an amount equal to the principal amount of Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, the Registrar shall
register the transfer and reflect on its books and records the date and
(A) a decrease in the principal amount of the Global Note from which such
interests are to be transferred in an amount equal to the principal amount
of the Notes to be transferred and (B) an increase in the principal amount
of the IAI Global Note or the Regulation S Global Note, as the case may
be, in an amount equal to the principal amount of the Notes to be
transferred.
-37-
(b) TRANSFERS TO QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Note to a
QIB:
(i) the Registrar shall register the transfer of any Restricted
Note, whether or not such Note bears the Private Placement Legend, if (x)
the requested transfer is after the second anniversary of the Issue Date;
PROVIDED, HOWEVER, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y)
such transfer is being made by a proposed transferor who has checked the
box provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note 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, 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 its foregoing
representations in order to claim the exemption from registration under
the Securities Act provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall register
the transfer and reflect on its books and records the date and an increase
in the principal amount of the 144A Global Note in an amount equal to the
principal amount of Physical Notes to be transferred, and the Trustee
shall cancel the Physical Note so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the IAI Global Note or the Regulation S Global
Note, upon receipt by the
-38-
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall register
the transfer and reflect on its books and records the date and (A) a
decrease in the principal amount of the IAI Global Note or the Regulation
S Global Note, as the case may be, in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the principal
amount of the 144A Global Note in an amount equal to the principal amount
of the Notes to be transferred.
(c) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(d) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) there is delivered to the Trustee
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (ii) such Note has been sold pursuant to an effective registration
statement under the Securities Act.
(e) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
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 written notice to the Registrar.
-39-
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 Note (including any transfers between or among Depositary Participants or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
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.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to Paragraph 6 of the
Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed and whether
it wants the Trustee to give notice of redemption to the Holders (at the
Company's expense) at least 45 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed, or, if the Notes are not listed on a national securities
exchange, by lot or on a PRO RATA basis or by such other method as the Trustee
shall deem appropriate.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be
-40-
redeemed. Notes in denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first
class mail to each Holder whose Notes are to be redeemed, with a copy to the
Trustee. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Notes to be redeemed (including CUSIP number) and
shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Notes redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes in
the aggregate principal amount equal to the unredeemed portion thereof
will be issued; and
(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such
-41-
partial redemption.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price. Upon surrender to the Trustee or Paying Agent, such Notes
called for redemption shall be paid at the Redemption Price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m. (New York City time) on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price of all Notes to be redeemed on that date (other than
Notes or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation). The Paying Agent
shall promptly return to the Company any U.S. Legal Tender so deposited which is
not required for that purpose, except with respect to monies owed as obligations
to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price, interest on the
Notes to be redeemed will cease to accrue on and after the applicable Redemption
Date, whether or not such Notes are presented for payment.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest
-42-
on the Notes on the dates and in the manner provided in the Notes. An
installment of principal of or interest on the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the Company or a
Subsidiary of the Company) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate set forth in the second paragraph of
Paragraph 1 of the Notes.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
SECTION 4.03. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, Garden State shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate or other existence and the corporate or other existence of
each of its Subsidiaries in accordance with the respective organizational
documents of each such Subsidiary and the material rights (charter and
statutory) and franchises of Garden State and each such Subsidiary; PROVIDED,
HOWEVER, that Garden State shall not be required to preserve, with respect to
itself, any material right or franchise and, with respect to any of its
Subsidiaries, any such existence, material right or franchise, if the Board of
Directors or other equivalent governing body of Garden State or such Subsidiary,
as the case may be, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of Garden State or any such Subsidiary.
-43-
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS.
Garden State shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; PROVIDED, HOWEVER, that
Garden State shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if either (a) the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by generally accepted accounting principles then in effect
or (b) the failure to make such payment or effect such discharge (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of Garden State and its
Subsidiaries, taken as a whole.
SECTION 4.05. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) Garden State shall, and shall cause each of its Subsidiaries to,
maintain its properties in good working order and condition (subject to ordinary
wear and tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively conduct and carry
on its business; PROVIDED, HOWEVER, that nothing in this Section shall prevent
Garden State or any of its Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is, in the judgment
of Garden State or the Subsidiary, as the case may be, desirable in the conduct
of their respective businesses and is not disadvantageous in any material
respect to the Holders.
(b) Garden State shall provide or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
Garden State and such Subsidiaries in a prudent manner, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality
-44-
thereof, in such amounts, with such deductibles, and by such methods as shall be
customary, in the reasonable, good faith opinion of the Company, for companies
similarly situated in the industry, unless the failure to provide such insurance
(together with all other such failures) would not have a material adverse effect
on the financial condition or results of operations of Garden State and its
Subsidiaries, taken as a whole.
SECTION 4.06. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) Garden State shall deliver to the Trustee, within 120 days after
the end of the Company's fiscal year, an Officers' Certificate stating that a
review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity. The
Officers' Certificate shall also notify the Trustee should the Company elect to
change the manner in which it fixes its fiscal year end. For purposes of this
Section 4.06(a), one of the Officers signing such Officers' Certificate shall be
the Chief Financial Officer, the Chief Executive Officer or the President of the
Company.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.08 shall be accompanied by a written
report of the Company's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the Trustee) that in
conducting their audit of such financial statements (which is directed primarily
to the expression of their opinion on such financial statements taken as a whole
and not toward obtaining knowledge of non-compliance with credit agreements)
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article Four, Five or Six of this
Indenture or, if any such
-45-
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing, (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed default under this Indenture or the Notes or (iii) if the
trustee for or the holder of any other evidence of Debt of the Company or any
Subsidiary seeks to exercise any remedy with respect to a claimed default, the
Company shall deliver to the Trustee by registered or certified mail or by
facsimile transmission followed by hard copy by registered or certified mail an
Officers' Certificate specifying such event, notice or other action and what
action the Company has taken or proposes to take with respect thereto within
five Business Days of its occurrence.
SECTION 4.07. COMPLIANCE WITH LAWS.
Garden State shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliances as could not in the aggregate be
reasonably expected to have a material adverse effect on the financial condition
or results of operations of Garden State and its Subsidiaries taken as a whole.
SECTION 4.08. COMMISSION REPORTS.
(a) The Company shall file with the Trustee and mail to each holder
of Notes, within 15 days after filing with the Commission, copies of the annual,
quarterly and current reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) which it is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
(b) Notwithstanding that the Company is not required by law to
remain subject to the periodic reporting requirements of the Exchange Act, it
will nonetheless continue to file with
-46-
the Commission and deliver to the Trustee, and to each holder of Notes such
annual, quarterly and current reports which are specified in Section 13 or 15(d)
of the Exchange Act.
(c) In addition, the Company shall, at its cost, deliver to each
holder of the Notes quarterly and annual reports substantially equivalent to
those which would be required under the Exchange Act.
(d) Delivery of such reports, information and documents to the
Trustee pursuant to this Section 4.08 is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
SECTION 4.09. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS.
Garden State will not, and will not permit any of its Restricted
Subsidiaries to, make, directly or indirectly, any Restricted Payment; PROVIDED,
HOWEVER, that Garden State and its Restricted Subsidiaries may make Restricted
Payments so long as at the time of the making of such Restricted Payment and
after giving effect thereto:
(a) no Default or Event of Default shall have occurred or be
continuing as a consequence thereof;
-47-
(b) immediately after giving effect to such Restricted Payment,
Garden State would have been permitted to incur $1.00 of additional Debt
pursuant to the terms of the first paragraph under Section 4.12 hereof;
and
(c) the aggregate amount expended by Garden State and its Restricted
Subsidiaries in connection with all Restricted Payments made subsequent to
October 1, 1997 shall not exceed the sum of (i) Garden State's Cumulative
Credit (or, in the event such aggregate Cumulative Credit shall be a
deficit, minus 100% of such deficit) for the period (taken as one
accounting period) from the Issue Date; (ii) 100% of the Net Cash Proceeds
received by Garden State from any Person (other than a Subsidiary of
Garden State) from the issuance and sale subsequent to October 1, 1997 of
Qualified Capital Stock of Garden State (excluding (A) Qualified Capital
Stock made as a distribution on any Capital Stock or as interest on any
Debt and (B) any such Net Cash Proceeds from issuances and sales of
Qualified Capital Stock, where the purchase is financed directly or
indirectly using funds borrowed from Garden State or any Subsidiary of
Garden State); (iii) 100% of the Net Cash Proceeds received by Garden
State from the exercise of options or warrants on Qualified Capital Stock
of Garden State since October 1, 1997 (other than from a Subsidiary of
Garden State); (iv) 100% of the Net Cash Proceeds received by Garden State
from the conversion into Qualified Capital Stock of convertible Debt or
convertible Preferred Stock issued and sold since October 1, 1997 (other
than from a Subsidiary of Garden State); (v) 100% of the aggregate net
proceeds of any (a) sale or other disposition of Restricted Investments
(which Investment was made after October 1, 1997) made by the Company or a
Restricted Subsidiary of the Company, (b) dividends, whether liquidating
or otherwise, from, or the sale of capital stock of, an Unrestricted
Subsidiary, or (c) dividends, whether liquidating or otherwise, from
Restricted Investments; and (vi) $40.0 million.
Notwithstanding the foregoing, this restriction will not prevent (A)
the payment of any dividend within 60 days after the date of declaration if the
dividend would have been permitted on the date of declaration; (B) so long as no
Default or Event of Default shall have occurred or be continuing or shall occur
as a consequence thereof, the acquisition of Capital Stock of Garden State which
is funded either by the exchange of shares of Qualified Capital Stock of Garden
State
-48-
or from the Net Cash Proceeds of the substantially concurrent sale for cash of
shares of Qualified Capital Stock of Garden State (other than to a Subsidiary of
Garden State) which amount shall not then be included in (c)(ii) of the
immediately preceding paragraph; (C) so long as no Default or Event of Default
shall have occurred or be continuing or shall occur as a consequence thereof,
the purchase for value of shares of Capital Stock or warrants, options or other
rights to acquire Capital Stock held by directors, officers or employees of
Garden State upon death, disability, retirement or termination of employment in
an aggregate amount not to exceed $3.0 million in any twelve-month period; and
(D) so long as no Default or Event of Default shall have occurred or be
continuing or shall occur as a consequence thereof, and immediately after giving
effect to such Restricted Payment, Garden State would have been permitted to
incur at least $1.00 of additional Debt pursuant to the terms of the first
paragraph under Section 4.12, the redemption, purchase or retirement by Garden
State of the ANI Senior Discount Debentures or the payment of dividends to ANI
in an amount sufficient to allow ANI to redeem, repurchase, or retire the ANI
Senior Discount Debentures, provided, in each such case, the proceeds are
forthwith so used.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Garden State will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (or series of related transactions) (each a "Transaction") with any
Affiliate of Garden State or any Unrestricted Subsidiary of Garden State,
including, without limitation, any sale, purchase, lease or loan or any other
direct or indirect payment, transfer or other disposition of assets, property or
services, unless (a) such Transaction is on terms no less favorable to Garden
State or such Restricted Subsidiary, as the case may be, than those that could
be obtained in a comparable arm's-length transaction with an independent third
party (the "Fairness Condition") and (b) prior to effecting such Transaction,
Garden State shall deliver to the Trustee (i) with respect to any Transaction
involving aggregate consideration in excess of $1.0 million, an officers'
certificate certifying that a majority of the disinterested members of the Board
of Directors of Garden State has approved such Transaction and has determined
that the terms of such Transaction satisfy the Fairness Condition and (ii) in
addition, with respect to any Transaction involving (x) aggregate consideration
in excess of $1.0 million in which there are no disinterested directors or (y)
aggregate
-49-
consideration in excess of $10.0 million, a written opinion from a nationally
recognized investment banking firm stating that the terms of such Transaction
satisfy the Fairness Condition or are fair to Garden State or such Restricted
Subsidiary from a financial point of view. Clause (b)(ii)(y) shall not apply to
purchases of newsprint in the ordinary course of business by Garden State and
its Restricted Subsidiaries from Affiliates of Garden State or of its Restricted
Subsidiaries. Notwithstanding the foregoing, this provision will not apply to
(A) any Transaction between Garden State and a Restricted Subsidiary of Garden
State, or between Restricted Subsidiaries of Garden State (PROVIDED that in the
case of any Restricted Subsidiary that is not a Wholly Owned Subsidiary, no
affiliate of Garden State is a direct or indirect investor in such Subsidiary
other than through Garden State), and any transaction, in the ordinary course of
business, between Garden State and its Restricted Subsidiaries, on the one hand,
and Denver Newspapers or its wholly owned Subsidiaries (as long as Denver
Newspapers is a Subsidiary of ANI), on the other hand, (B) the making of
Permitted Investments, (C) the making of Restricted Payments in accordance with
Section 4.10, and (D) the making of Permitted Intercompany Payments. In
connection with this covenant, any determination regarding whether a director is
"disinterested" will be made on the basis of whether such director has, among
other things, a personal stake in the business or transactions requiring any
such determination to be made.
SECTION 4.12. LIMITATION ON ADDITIONAL DEBT.
Garden State may not, and may not permit its Restricted Subsidiaries
to, directly or indirectly, Issue (including through any merger or consolidation
to which Garden State or such Restricted Subsidiary is a party) any Debt, except
that Garden State and/or its Restricted Subsidiaries may Issue Debt if (i) no
Default or Event of Default shall have occurred and be continuing at such time
or shall occur as a result of such issuance and (ii) at the time such Debt is so
Issued and after giving effect thereto and to the application of the net
proceeds therefrom, the Leverage Ratio of Garden State shall not be greater than
6.75 to 1, if such Debt is Issued on or prior to December 31, 1999, 6.25 to 1,
if such Debt is Issued after December 31, 1999, but on or prior to December 31,
2001, and 6.0 to 1, if such Debt is Issued thereafter.
The limitations set forth in the immediately
-50-
preceding paragraph will not apply to: (i) the Notes; (ii) Existing Debt; (iii)
Debt under the Garden State Credit Facility, PROVIDED that the aggregate amount
of such Debt does not, at any time, exceed $350.0 million, less any prepayments
or scheduled payments actually made thereunder (to the extent, in the case of
prepayments on revolving credit indebtedness, that the corresponding commitments
have been permanently reduced); (iv) Debt owing from or to Garden State and its
Restricted Subsidiaries, PROVIDED that any Debt owing from Garden State to its
Restricted Subsidiaries is subordinated to the Notes; (v) other Debt issued
hereafter not to exceed in the aggregate $50.0 million at any one time
outstanding; (vi) Debt in respect of Capitalized Lease Obligations not to exceed
in the aggregate $25.0 million at any one time outstanding (including those
outstanding on the Issue Date); (vii) Acquired Debt; and (viii) any extension,
renewal or replacement of the Debt described in clauses (i) and (ii) above,
PROVIDED that (a) the aggregate principal amount of Debt so issued (or, if such
Debt is issued at a price less than the principal amount thereof, the original
issue price) shall not exceed the aggregate principal amount of the Debt being
extended, renewed or replaced, (b) any Debt so issued shall not mature prior to
the stated maturity of the Debt being extended, renewed or replaced, and (c) the
Debt so issued shall not have an Average Life less than the remaining Average
Life of the Debt to be extended, renewed or replaced.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
Garden State will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of Garden State to (i) pay dividends or
make any other distributions on its Capital Stock or pay any Debt owed to Garden
State or a Restricted Subsidiary of Garden State, (ii) make loans or advances to
Garden State or a Restricted Subsidiary of Garden State or (iii) transfer any of
its properties or assets to Garden State, except for encumbrances or
restrictions existing under or by reason of (A) applicable law or provisions in
effect on the Issue Date, (B) the Indenture, (C) agreements existing on the
Issue Date, (D) the Garden State Credit Facility, the Senior Subordinated
Secured Notes or the Notes, (E) customary non-assignment provisions of any lease
governing a leasehold interest of
-51-
Garden State or a Restricted Subsidiary of Garden State (F) any instrument
governing or evidencing Acquired Debt of a Person at the time 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 so acquired,
PROVIDED that such Debt, and such encumbrance or restriction, is not incurred in
connection with, or in contemplation of, such acquisition, (G) any encumbrances
or restrictions contained in any Debt governing any refinancings of the Debt
described in clause (C), provided that the encumbrances and restrictions
contained in any such refinancing agreement or amendment, supplement or other
modification are not materially less favorable to the Noteholders than
encumbrances and restrictions contained in such agreements or (H) customary
restrictions on such loans, advances or transfers contained in agreements
governing Permitted Investments.
SECTION 4.14. LIMITATION ON RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of the Company may, if no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such
designation is at that time permitted under Section 4.10. The Board of Directors
of the Company may, if no Default or Event of Default shall have occurred and be
continuing or would result therefrom, designate an Unrestricted Subsidiary to be
a Restricted Subsidiary; PROVIDED, HOWEVER, that (i) any such redesignation
shall be deemed to be an incurrence as of the date of such redesignation by the
Company and the Restricted Subsidiaries of Debt, if any, of such redesignated
Subsidiary for purposes of Section 4.12 above; and (ii) unless such redesignated
Restricted Subsidiary shall not have any Debt outstanding (other than Debt which
would be permitted under Section 4.12), no such designation shall be permitted
if immediately after giving effect to such redesignation and the Incurrence of
any such Debt, the Company could not incur $1.00 of additional Debt pursuant to
the first paragraph of Section 4.12. Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by the filing with
the Trustee of a certified copy of the Board Resolution of the Company's Board
of Directors giving effect to such designation or redesignation and an Officers'
Certificate certifying that such designation or redesignation complied with the
foregoing conditions and setting forth in reasonable detail the underlying
calculations.
-52-
Subsidiaries that are not designated by the Board of Directors as
Restricted or Unrestricted Subsidiaries will be deemed to be Restricted
Subsidiaries. The designation of a Restricted Subsidiary as an Unrestricted
Subsidiary shall be deemed to include a designation of all of the Subsidiaries
of such Unrestricted Subsidiary as Unrestricted Subsidiaries. As of the date of
this Indenture, there are no Unrestricted Subsidiaries.
SECTION 4.15. LIMITATION ON SENIOR SUBORDINATED DEBT.
The Company will not, directly or indirectly, become liable,
contingently or otherwise, with respect to any Debt that is subordinated or
junior in right of payment to any Senior Debt of the Company and senior in right
of payment to the Notes.
SECTION 4.16. CHANGE OF CONTROL.
(a) In the event of a Change of Control, Garden State shall make an
offer to repurchase all or a portion of the outstanding Notes pursuant to the
offer described in paragraph (b) below (the "Change of Control Offer") at a
purchase price equal to 101% of the principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of repurchase.
(b) Prior to the repurchase of the Notes, Garden State shall (i)
repay in full all Senior Debt the terms of which require repayment upon a Change
of Control or offer to repay in full all such Debt and to repay the Debt owed to
each holder of such Debt which has accepted such offer, or (ii) obtain the
requisite consents under such Senior Debt to permit the repurchase of the Notes
as provided below. Garden State shall first comply with the covenant in the
preceding sentence before it shall be required to repurchase Notes pursuant to
the provisions described in this Section 4.16. Within 10 Business Days after the
date upon which the Change of Control occurs (the "Change of Control Date")
requiring Garden State to make a Change of Control Offer pursuant to this
Section 4.16 and the conditions set forth in the preceding sentence are
satisfied, Garden State shall so notify the Trustee.
(c) The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender (or cause to be transferred
by book-entry) Notes pursuant to the Change of Control Offer. Within 10 Business
Days following any Change of Control Date, Garden State shall
-53-
send, by first class mail, a notice to each Holder of Notes as of the Change of
Control Date, with a copy to the Trustee, which notice shall govern the terms of
the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.16 and that all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day immediately prior to
the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Xxxxxx is withdrawing his
election to have such Note purchased;
(7) that Holders whose Notes are purchased only in part will be
issued (by book-entry) new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
-54-
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Notes so tendered and (iii) deliver
to the Trustee (or, in the case of a book-entry transfer, evidence satisfactory
to the Trustee of such Notes) Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders (or cause to be transferred by
book-entry) new Notes equal in principal amount to any unpurchased portion of
the Notes surrendered. Any Notes not so accepted shall be promptly mailed by the
Company to the Holder thereof. For purposes of this Section 4.16, the Trustee
shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
(d) Garden State will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer.
SECTION 4.17. LIMITATION ON SALES OF ASSETS.
Garden State may not, and may not permit its Restricted Subsidiaries
to, directly or indirectly, consummate any Asset Sale unless: (a) at least 85%
of the consideration therefor received by Garden State or such Restricted
Subsidiary shall be in the form of cash or Cash Equivalents, PROVIDED, that the
amount of (i) any liabilities (as shown on Garden State's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of Garden State
or any Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or any guarantee thereof) that are assumed by the
transferee of any such assets shall be excluded from such calculation and (ii)
any notes or other obligations received by Garden State or any such Restricted
Subsidiary from such transferee that are immediately converted by Garden State
or such Restricted Subsidiary into cash (to the extent of the cash received)
shall be deemed, to the extent of cash so received, to be cash for purposes of
this provision;
-55-
(b) Garden State or such Restricted Subsidiary shall have received consideration
in such Asset Sale at least equal to the fair market value of the assets sold in
such Asset Sale (as determined in good faith by the Board of Directors of Garden
State); and (c) such Asset Sale is approved in writing by the Board of Directors
of Garden State; PROVIDED, HOWEVER, that clause (a) shall not apply to the
extent an Asset Sale consists of the exchange of one or more newspapers for
another newspaper or other Permitted Investments.
Garden State will, and will cause each such Restricted Subsidiary
to, commit to apply the Net Cash Proceeds from any such Asset Sale within 270
days of receipt thereof, and will, and will cause such Restricted Subsidiary to,
apply such Net Cash Proceeds within 360 days of receipt thereof to (i)
reinvestment by Garden State or such Restricted Subsidiary in property or assets
to be employed in a Permitted Business, (ii) the permanent repayment of Debt
(including premium) of Garden State or its Restricted Subsidiaries that is held
by a person other than a Restricted Subsidiary or Affiliate of Garden State, or
(iii) the repurchase of Notes tendered as described in the immediately
succeeding paragraph. Any Net Cash Proceeds from Asset Sales that are not
applied as provided in clause (i) or (ii) of the preceding sentence shall
constitute "Excess Proceeds."
In the event Garden State or any Restricted Subsidiary shall have
received any Excess Proceeds, Garden State will make an offer to all Holders of
the Notes to purchase the maximum principal amount of Notes that may be
purchased out of such Excess Proceeds, at an offer price, in cash in an amount
equal to 100% of the outstanding principal amount thereof, plus the accrued and
unpaid interest thereon, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in this Indenture. To the
extent that the aggregate principal amount of Notes tendered pursuant to an
offer to purchase is less than the Excess Proceeds, Garden State may use such
excess for general corporate purposes. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis.
Notwithstanding the foregoing, if after applying any Net Cash Proceeds received
from Asset Sales in accordance with clauses (i) and (ii) of the immediately
preceding paragraph, Excess Proceeds are less than $10.0 million, the
application of such Excess Proceeds to repurchase the Notes may be deferred
until such time as such Excess Proceeds are at least equal to $10.0 million, at
which time
-56-
Garden State or such Restricted Subsidiary shall apply all such Excess Proceeds
to repurchase the Notes.
In the event the repurchase of the Notes with Excess Proceeds
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at the time it is required, Garden State will be required to comply with Rule
14e-1 as then in effect with respect to such repurchase.
SECTION 4.18. LIMITATION ON LIENS SECURING CERTAIN DEBTS.
Garden State will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens to secure
any Debt of Garden State which is pari passu with or subordinate in right of
payment to the Notes, other than Liens existing on the date hereof with respect
to the Senior Subordinated Secured Notes, unless the Notes are secured equally
and ratably with such Debt (but on a senior basis if such other Debt is
subordinate to the Notes) as long as such Debt is so secured.
SECTION 4.19. LIMITATION ON BUSINESS.
Garden State will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than in the Permitted Business.
SECTION 4.20. INVESTMENT COMPANY ACT.
Garden State will not take any action that would require it or any
of its Restricted Subsidiaries to register as an investment company under the
Investment Company Act of 1940.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
(a) Garden State shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into, or sell,
assign, transfer, lease, convey
-57-
or otherwise dispose of all or substantially all of its assets to, another
Person or adopt any plan of liquidation, unless:
(1) either Garden State shall be the survivor of such merger or
consolidation or the surviving Person (the "Survivor") is a corporation,
partnership or trust organized and existing under the laws of the United
States, any State thereof or the District of Columbia.
(2) such Survivor shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee on or prior to
the consummation of such transaction, in a form satisfactory to the
Trustee, all the obligations of Garden State under the Notes and this
Indenture;
(3) immediately after giving effect to such transaction (including
any Debt incurred or anticipated to be incurred in connection with such
transaction) on a pro forma basis as if such transaction and the
incurrence of any such Debt had occurred at the beginning of the
four-quarter period immediately preceding such transaction, the Survivor
or Garden State, as the case may be, would have been permitted to incur
$1.00 of additional Debt in compliance with Section 4.12;
(4) immediately after giving effect to such transaction (including
any Debt incurred or anticipated to be incurred in connection with such
transaction) no Default or Event of Default shall have occurred and be
continuing;
(5) the Survivor will have Consolidated Net Worth immediately after
giving effect to the transaction (including any Debt incurred or
anticipated to be incurred in connection with such transaction), equal to
or greater than the Consolidated Net Worth of Garden State immediately
prior to the transaction; and
(6) Garden State has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or adoption and such supplemental
indenture comply with this Article Five, that the Survivor (if other than
the Company) agrees to be bound hereby, and that all conditions precedent
herein provided relating to such transaction have been satisfied.
-58-
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one or
more Subsidiaries of Garden State, the Capital Stock of which constitutes all or
substantially all of the properties and assets of Garden State, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
Garden State.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which Garden State is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
Garden State under this Indenture with the same effect as if such successor
Person had been named as Garden State herein. When a successor corporation
assumes all of the obligations of Garden State hereunder and under the Notes and
agrees to be bound hereby and thereby, the predecessor shall be released from
such obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) Garden State defaults in the payment of interest on any Notes
when the same becomes due and payable and such Default continues for a
period of 30 days (whether or not such payment shall be prohibited by
Article Ten);
(2) Garden State defaults in the payment of the stated principal
amount of, or premium on, if any, any Notes when the same becomes due and
payable at maturity, upon acceleration, redemption or otherwise, or
pursuant to a Change of Control Offer or an Asset Sale (whether or not
such payment shall be prohibited by Article Ten);
(3) Garden State fails to observe or perform (a) any covenant or
agreement contained in Section 4.10, 4.12,
-59-
4.14, 4.15, 4.17, 4.18 or 5.01 of this Indenture, or (b) any other
covenant or agreement contained in the Notes or this Indenture, and, in
each case, the Default continues for the period and after the notice
specified below;
(4) failure to pay at final maturity (after any stated grace period)
the principal of and interest on one or more classes of Debt of Garden
State or any of its Restricted Subsidiaries, whether such Debt is
outstanding on the Issue Date or thereafter incurred having, individually
or in the aggregate, an outstanding principal amount exceeding $10.0
million or more or any Debt having, individually or in the aggregate, an
outstanding principal amount exceeding $10.0 million is declared due and
payable prior to the stated maturity;
(5) one or more judgments in an aggregate amount in excess of $10.0
million shall have been rendered against ANI or any of its Significant
Subsidiaries and such judgments remain discharged or unstayed for a period
of 60 days after such judgment or judgments become final and nonappealable
and after notice specified below;
(6) Garden State or any Significant Subsidiary (A) admits in writing
its inability to pay its debts generally as they become due, (B) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (C) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a Custodian of it or
for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(F) makes a general assignment for the benefit of its creditors, or (G)
takes any corporate action to authorize or effect any of the foregoing;
and
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of Garden State or any Significant Subsidiary
in an involuntary case or proceeding under any Bankruptcy Law, which shall
(A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of Garden State or any
Significant Subsidiary, (B) appoint a Custodian of Garden State or any
Significant Subsidiary or for substantially all of its property or (C)
order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and
-60-
in effect for a period of 60 consecutive days.
A Default under clause (3) above (other than in the case of any
Default under Section 5.01, which Default shall be an Event of Default with the
notice specified in this paragraph but without the passage of time specified in
this paragraph) is not an Event of Default until the Trustee notifies Garden
State, or the Holders of at least 25% in principal amount of the outstanding
Notes notify Garden State and the Trustee of the Default, and Garden State does
not cure the Default within (i) in the case of clause 3(a) above (except in the
case of Section 5.01 hereof), 30 days, and (ii) in the case of clause 3(b)
above, 45 days, in each case 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 shall be given by the Trustee if so requested
by the Holders of at least 25% in principal amount of the Notes then
outstanding. A Default under clause (5) above shall be an Event of Default with
the notice specified in this paragraph but without the passage of time referred
to in this paragraph.
SECTION 6.02. ACCELERATION.
(a) If an Event of Default (other than an Event of Default specified
in Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, the Trustee may, by notice to
Garden State, or the Holders of at least 25% in principal amount of the Notes
then outstanding may, by written notice to Garden State and the Trustee, and the
Trustee shall, upon the request of such Holders, declare (a "Declaration") the
aggregate principal amount of the Notes outstanding, together with accrued but
unpaid interest thereon to the date of payment, to be due and payable (the
"Default Amount") and, upon any such declaration, the same shall become and be
due and payable; PROVIDED, HOWEVER, that in the event there shall be any amounts
outstanding under the Garden State Credit Facility, the Default Amount shall not
become due and payable until the earlier to occur of either (x) an acceleration,
or a failure to pay at final maturity, under the Garden State Credit Facility,
or (y) five Business Days after the notice has been sent to Garden State and
each of the Representatives under the Garden State Credit Facility (if it is
then outstanding) unless no Events of Default shall be then continuing; and
PROVIDED, FURTHER, HOWEVER, that the Trustee shall be under no obligation to
follow any request of any of the Holders unless such Holders shall have offered
to the Trustee, after request by the Trustee, reasonable security or indemnity
against the costs,
-61-
expenses and liabilities which may be incurred by it in compliance with such
request, order or direction.
(b) If an Event of Default specified in Section 6.01(6) or (7)
occurs with respect to Garden State, the Default Amount shall IPSO FACTO become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Noteholder.
(c) Upon payment of the Default Amount all of Garden State's
obligations under the Notes and this Indenture, other than obligations under
Section 7.07, shall terminate. The Holders of a majority in principal amount of
the Notes then outstanding by notice to the Trustee may rescind a Declaration
and its consequences if (i) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction, (ii) all existing Events of
Default, other than the non-payment of the principal and interest on the Notes
which have become due solely by such declaration of acceleration, have been
cured or waived, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) Garden State has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of a Default or Event of Default of the type
described in Section 6.01(6) or (7), the Trustee shall have received an
Officers' Certificate and an opinion of Counsel that such Default has been cured
or waived. No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available
-62-
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of or interest on any Note as specified in clauses (1)
and (2) of Section 6.01.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on it
including, without limitation, any remedies provided for in Section 6.03.
Subject to Section 7.01, however, the Trustee may refuse to follow any direction
that conflicts with any law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of another Noteholder, or that may involve the
Trustee in personal liability; PROVIDED that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 6.06. LIMITATION ON SUITS.
A Noteholder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee reasonable indemnity against
any loss, liability or expense to be incurred in compliance with such
request;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer of satisfactory indemnity; and
(5) during such 45-day period the Holders of a
-63-
majority in principal amount of the outstanding Notes do not give the
Trustee a direction which, in the opinion of the Trustee, is inconsistent
with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
Garden State for the whole amount of principal and accrued interest remaining
unpaid, together with interest on overdue principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Notes and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders, allowed in any judicial proceedings relating to the Company or any
other obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any
-64-
monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Noteholder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Noteholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Fourth: to Garden State or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to Garden State, may fix a record
date and payment date for any payment to Noteholders pursuant to this Section
6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in
-65-
the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, 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
-66-
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its 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.
(e) whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
-67-
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection (provided such counsel is reasonably
acceptable to the Company) and may require an Officers' Certificate or an
opinion of Counsel, which shall conform to Sections 12.04 and 12.05. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on the advice of such counsel or on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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, upon reasonable
notice to the Company, to examine the books, records, and premises of the
Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request,
order or direction.
(g) 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 may be sufficiently evidenced by a
Board Resolution;
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless
-68-
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 notes and this Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Notes, it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be responsible for any
statement in the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Noteholder notice of
the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of Default
in payment of principal of, or interest on, any Note, the Trustee may withhold
the notice if and so long as its board of directors, the executive committee of
its board of directors or a committee of its directors and/or Trust Officers in
good faith determines that withholding the notice is in the interest of the
Noteholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each July 1 beginning with the July 1
following the date of this Indenture, the Trustee shall, to the extent that
any of the events described in TIA Section 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Noteholder a brief
report dated as of such July 1 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Sections 313(b) and 313(c).
-69-
A copy of each report at the time of its mailing to Noteholders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all tax obligations imposed on the Trustee related to
this Indenture and all reasonable out-of-pocket expenses incurred or made by it.
Such expenses shall include the reasonable fees and expenses of the Trustee's
agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee and their respective agents, employees, stockholders and directors for,
and hold them harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based on the income of the Trustee)
incurred by them except for such actions to the extent caused by any negligence
or bad faith on their part, arising out of or in connection with the acceptance
or administration of this trust including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel, provided that counsel selected by the Company shall be the sole counsel
of record in any judicial or arbitral proceeding. The Company need not pay for
any settlement made without its written consent, which shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against any
loss or liability to the extent incurred by the Trustee through its negligence,
bad faith or willful misconduct.
-70-
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor trustee.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the
-71-
rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Noteholder.
If a successor Xxxxxxx does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of at least 10% in principal amount of
the outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(5). The Trustee (or in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2). The
Trustee shall comply with TIA Section 310(b); PROVIDED, HOWEVER, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture
or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set
-72-
forth in TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that
Garden State's obligations under Sections 7.07, 8.04 and 8.05 shall survive the
effect of this Article Eight) when all outstanding Notes theretofore
authenticated and issued have been delivered to the Trustee for cancellation.
In addition, at Garden State's option, either (a) Garden State shall
be deemed to have been Discharged (as defined below) from its obligations with
respect to the Notes ("legal defeasance"), except for certain obligations,
including those with respect to the transfer or exchange of the Notes, to
replace mutilated, destroyed, lost or stolen Notes and to maintain a registrar
and paying agent in respect of the Notes, at any time after the applicable
conditions set forth below have been satisfied or (b) Garden State shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Sections 4.08, 4.10 through 4.20 and 5.01 ("covenant defeasance") at
any time after the applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
the Notes (i) money in an amount, or (ii) U.S. Legal Tender or U.S.
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide, not later
than one business
-73-
day before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect to
(i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal of and
interest on the outstanding Notes on the dates such installments of
interest or principal are due; PROVIDED that no deposits made pursuant to
this Section 8.01(l) shall cause the Trustee to have a conflicting
interest as defined in and for purposes of the TIA; PROVIDED, FURTHER,
that no such deposit shall result in the Company, the Trustee or the trust
becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(2) No Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
Events of Default from bankruptcy or insolvency events are concerned, at
any time in the period ending on the 91st day after the date of deposit;
(3) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the trust funds deposited pursuant to clause
(1) above will not be subject to any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(4) The Company shall have paid or duly provided for payment of all
amounts then due to the Trustee pursuant to Section 7.07 hereof;
(5) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel to the effect that such legal defeasance or covenant
defeasance shall not result in a breach or violation of or constitute a
Default under this Indenture, or any other material agreement or
instrument to which the Company is a party or by which the Company is
bound;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit is not required to be
registered as an investment company under the Investment Company Act of
1940, as amended;
(7) the Company delivers to the Trustee an Opinion
-74-
of Counsel to the effect that the Noteholder has a perfected security
interest under applicable law in the U.S. Government Obligations so
deposited;
(8) in the case of legal defeasance, the Company delivers to the
Trustee an Opinion of Counsel confirming that (a) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (b) since the date of the Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Noteholder will not recognize income, gain or loss for Federal income tax
purposes as a result of such legal defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such legal defeasance had not
occurred;
(9) in the case of covenant defeasance, the Company delivers to the
Trustee an Opinion of Counsel confirming that the Noteholder will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(10) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to either the legal defeasance or the covenant
defeasance, as the case may be, have been complied with.
Notwithstanding the foregoing provisions of this Section, the
conditions set forth in the foregoing paragraphs (1)(iii), (2), (3), (5), (6)
and (7) need not be satisfied so long as, at the time Garden State makes the
deposit described in paragraph (1), (i) no default under Section 6.01(l),
6.01(2), 6.01(3), 6.01(6) or 6.01(7) has occurred and is continuing on the date
of such deposit and after giving effect thereto and (ii) either (x) a notice of
redemption has been mailed pursuant to Section 3.03 providing for redemption of
all the Notes within 60 days after such mailing and the provisions of Article
Three with respect to such redemption shall have been complied with or (y) the
Stated Maturity of all of the Notes will occur within 30 days. If the conditions
of the preceding sentence are satisfied, Garden State shall be deemed to have
exercised its covenant defeasance option.
-75-
Before or after a deposit, Garden State may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article Three.
"Discharged" means that Garden State shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Notes and to have satisfied all the obligations under this Indenture
relating to the Notes (and the Trustee, at the expense of Garden State, shall
execute proper instruments acknowledging the same), except (i) the rights of the
Holders of Notes to receive, from the trust fund described in clause (1) above,
payment of the principal of and the interest on such Notes when such payments
are due, (ii) Garden State's obligations with respect to the Notes under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07 and 7.08 and (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
SECTION 8.02. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
Subject to Section 8.05, after (i) the conditions of Section 8.01
have been satisfied, (ii) Garden State has paid or caused to be paid all other
sums payable hereunder by Garden State and (iii) Garden State has delivered to
the Trustee an Opinion of Counsel, stating that all conditions precedent
referred to in clause (i) above relating to the satisfaction and discharge of
this Indenture have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge of Garden State's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
SECTION 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust, money, U.S. Legal Tender or U.S.
Government Obligations deposited with it pursuant to Section 8.01. It shall
apply the deposited money and the money from U.S. Legal Tender and U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and accrued and unpaid interest on the
Notes.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.01 or the principal and
-76-
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Notes.
SECTION 8.04. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall promptly pay to Garden State
any money held by them for the payment of principal or interest that remains
unclaimed for one year; PROVIDED, HOWEVER, that the Trustee or such Paying Agent
may, at the expense of Garden State, cause to be published once in a newspaper
of general circulation in The City of New York or mailed to each Holder, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
Garden State. After payment to Garden State, Holders entitled to the money must
look to Garden State for payment as general creditors unless an applicable
abandoned property law designates another Person and all liability of the
Trustee and Paying Agent with respect to such money shall cease.
SECTION 8.05. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Legal Tender or U.S. Government Obligations in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, Garden State's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such money, U.S. Legal Tender or U.S. Government Obligations in
accordance with Section 8.01; PROVIDED, HOWEVER, that if Garden State has made
any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, Garden State shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money, U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-77-
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Notes without notice to
or consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency; PROVIDED that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes; or
(4) to make any other change that does not adversely affect in any
material respect the rights of any Noteholders hereunder;
PROVIDED that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, Garden State, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of the outstanding
Notes, may amend or supplement this Indenture or the Notes, without notice to
any other Holders. Subject to Section 6.07, the Holder or Holders of a majority
in aggregate principal amount of the outstanding Notes may waive compliance by
Garden State with any provision of this Indenture or the Notes without notice to
any other Noteholder. No amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, shall, without the consent of each Holder of each Note
affected thereby:
(1) change the stated maturity of the principal of, or any
installment of interest on, any Note or reduce the principal amount
thereof, the rate of interest thereon or any premium payable upon the
redemption thereof, or change
-78-
the coin or currency in which any Note or any premium 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, in
the case of redemption, on or after the redemption date);
(2) reduce the percentage in principal amount of the outstanding
Notes, the consent of the Holders of which is required for any
supplemental indenture or the consent of such Holders is required for any
waiver of compliance with provisions of this Indenture or Defaults
hereunder and their consequences provided for in this Indenture;
(3) modify any of the provisions relating to supplemental indentures
requiring the consent of Holders or relating to the waiver of past
defaults or relating to the waiver of covenants, except to increase any
such percentage of outstanding Notes required for such actions or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of each Noteholder affected thereby;
(4) waive a default in the payment of the principal of or interest
on any Note or modify or waive the Company's obligation to repurchase
Notes under Section 4.16 or 4.17;
(5) except as otherwise permitted by the covenants contained in
Article Five, consent to the assignment or transfer by the Company of any
of its rights and obligations under this Indenture;
(6) make any change in this Section 9.02 or Section 6.04 or 6.07; or
(7) change the time at which any Note must be redeemed or repaid in
accordance with the terms of this Indenture and the Notes.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, Garden State shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
Garden State
-79-
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH XXX.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to his Note or portion of his Note by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (1)
through (7) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; PROVIDED that any such waiver shall not impair or
affect the
-80-
right of any Holder to receive payment of principal of and interest on a Note,
on or after the respective due dates expressed in such Note, or to bring suit
for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; PROVIDED that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. NOTES SUBORDINATED TO SENIOR DEBT.
The Company covenants and agrees and the Trustee and each Holder of
the Notes, by its acceptance thereof, likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of this Article Ten; and the
Trustee and each Person holding any Note, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that the payment of
all Obligations on the Notes by the Company
-81-
shall, to the extent and in the manner herein set forth, be subordinated and
junior in right of payment to the prior payment in full in cash or Cash
Equivalents of all Obligations in respect of the Senior Debt; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution of assets to creditors of Garden
State upon any dissolution or winding up or total or partial liquidation or
reorganization of Garden State whether voluntary or involuntary or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to Garden State or its property, in an assignment for the benefit of
creditors or any marshalling of Garden State's assets and liabilities:
(a) the holders of Senior Debt of Garden State will first be
entitled to receive payment in full in cash of all Obligations due in respect of
such Senior Debt (including interest accruing after or which would accrue but
for the occurrence of the commencement of any such proceeding, at the rate
specified in the applicable Senior Debt whether or not such interest is an
allowable claim in any such proceeding) before any payment or distribution is
made on account of any Obligations on the Notes, or for the acquisition of any
of the Notes for cash or property or otherwise; and
(b) until all obligations with respect to Senior Debt of Garden
State (as provided in clause (a) above) are paid in full in cash, any
distribution to which the Holders of the Notes otherwise would be entitled but
for this Article Ten shall be made to the holders of Senior Debt, except that
Holders of the Notes may receive securities that are subordinated at least to
the same extent as the Notes to (a) Senior Debt and (b) any securities issued in
exchange for Senior Debt ("subordinated securities").
For purposes of this Article Ten, a distribution may consist of
cash, Cash Equivalents, securities or other property, by set-off or otherwise.
-82-
The consolidation of Garden State with, or the merger of Garden
State into, another corporation or the liquidation or dissolution of Garden
State following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Five hereof shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 10.02 if the
Survivor complies with the conditions set forth in Article Five hereof.
SECTION 10.03. DEFAULT ON SENIOR DEBT.
(a) Upon the final maturity of any Senior Debt by lapse of time,
acceleration or otherwise, all Senior Debt shall first be paid in full in cash
or Cash Equivalents, or such payment duly provided for in cash or Cash
Equivalents or in a manner satisfactory to the holders of such Senior Debt,
before any payment is made by Garden State or any person acting on behalf of
Garden State of the principal, premium, if any, or interest on the Notes.
(b) Garden State may not make any payment upon or distribution in
respect of the Notes or acquire any of the Notes for cash or property or
otherwise (except in or for such subordinated securities) if (i) a default in
the payment of the principal, premium, if any, or interest on Senior Debt occurs
and is continuing beyond any applicable period of grace (whether upon maturity,
at a date fixed for prepayment, as a result of acceleration or otherwise) (a
"payment default") or (ii) any other default occurs and is continuing (or if
such an event of default would occur upon any payment with respect to the Notes
or would arise upon the passage of time as a result of such payment) with
respect to any Designated Senior Debt that permits holders of the Designated
Senior Debt as to which such default relates to accelerate its maturity (a
"nonpayment default") and, in either case, the Trustee receives a notice of such
non-payment default (a "payment blockage notice") from the holders, or from the
trustee, agent or other representative of the holders, of any such Designated
Senior Debt.
(c) Payments on the Notes may and shall be resumed (i) in the case
of a payment default, upon the date on which such default is cured or waived,
and (ii) in the case of a nonpayment default, the earlier of the date on which
such nonpayment default is cured or waived or 179 days after the date on which
the applicable payment blockage notice is received, unless the maturity of any
Designated Senior Debt has
-83-
been accelerated (with respect to a non-payment default such period of time
shall be hereinafter referred to as a "payment blockage period"). No payment
blockage period may be commenced within 360 days after receipt by the Trustee of
any prior payment blockage notice. No nonpayment default that existed or was
continuing on the date of delivery of any payment blockage period to the Trustee
shall be made the basis for a subsequent payment blockage notice unless such
default shall have been cured or waived for a period of not less than 180 days
and all scheduled payments of principal, premium, if any, and interest then due
and payable on the Notes shall have been made.
SECTION 10.04. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 hereof or to pursue any other rights or
remedies hereunder or under applicable law; PROVIDED, HOWEVER, that all Senior
Debt of the Company then due and payable, or which thereafter is declared to be,
or shall otherwise become, due and payable, pursuant to its terms (whether by
acceleration or otherwise) shall first be paid in full in cash or Cash
Equivalents before the Holders or the Trustee are entitled to receive any
payment from Garden State of principal, premium, if any, or interest on the
Notes. If payment of the Notes is accelerated because of an Event of Default,
Garden State shall promptly notify holders of Senior Debt of the acceleration.
SECTION 10.05. WHEN DISTRIBUTIONS MUST BE PAID OVER.
In the event that the Trustee or any Noteholder receives any payment
of any Obligations with respect to the Notes at a time when a Trustee or such
Noteholder has actual knowledge such payment is prohibited by Section 10.02 or
10.03 hereof, such payment shall be held by the Trustee or such Noteholder in
trust for the benefit of, and shall be paid forthwith over and delivered, upon
written request, to, the holders of Senior Debt as their interests may appear or
their agent or representative or the trustee under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or
-84-
for the holders of Senior Debt.
If a distribution is made to the Trustee or any Noteholder that
because of this Article Ten should not have been made to it, the Trustee or such
Noteholder who receives the distribution, upon notice that such distribution
should not have been made, shall hold it in trust for the benefit of, and, upon
written request, pay it over to, the holders of Senior Debt as their interests
may appear, or their agent or representative or the trustee under the indenture
or other agreement (if any) pursuant to which Senior Debt may have been issued,
as their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article Ten, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Noteholders or the
Company or any other person money or assets to which any holders of Senior Debt
shall be entitled by virtue of this Article Ten, except if such payment is made
as a result of the willful misconduct or negligence of the Trustee.
SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article Ten, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt
provided in this Article Ten.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full and until the Notes are paid
in full, Noteholders shall be subrogated (equally and ratably with all other
Debt PARI PASSU with the Notes) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the extent that
-85-
distributions otherwise payable to the Noteholders have been applied to the
payment of Senior Debt. A distribution made under this Article to holders of
Senior Debt which otherwise would have been made to Noteholders is not, as
between the Company and Noteholders, a payment by the Company on the Senior
Debt.
SECTION 10.08. RELATIVE RIGHTS.
This Article Ten defines the relative rights of Noteholders and
holders of Senior Debt. Nothing in the Indenture shall:
(a) impair, as between the Company and Noteholders, the obligation
of the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(b) affect the relative rights of Noteholders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(c) prevent the Trustee or any Noteholder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Noteholders.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination
of the indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the
-86-
Company referred to in this Article Ten, the Trustee and the Noteholders shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Noteholders for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior Debt and
other Debt of the Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Ten.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article Ten or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment or
distribution by the Trustee, or the taking of any action by the Trustee, and the
Trustee or Paying Agent may continue to make payments on the Notes unless a
Trust Officer of the Trustee shall have received at least five Business Days
prior to the date of such payment written notice of facts that would cause the
payment of any Obligations with respect to the Notes to violate this Article
Ten. Only the Company, a Representative or a holder of an issue of Senior Debt
that has no Representative may give the notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such person, the extent to which such person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment which it may be required to make
for the benefit of such person pursuant to the term of this Indenture pending
judicial determination as to the rights of such person to receive such payment.
Nothing in this Article Ten shall apply to amounts due to, or impair the claims
of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee.
-87-
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Noteholder by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Ten, and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.13. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 7.01, and
the Holders of the Notes shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the Trustee in
bankruptcy, liquidating trustee, Custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment, or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telecopier or
-88-
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Garden State Newspapers, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx, Xxxxxxxx, Xxxxxxxx,
XxXxxxxxx and Hand
000 Xxxxx Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000-2301
Attention: Xxxxxx X. Xxxxxxxx
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Trustee Administration
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if faxed; and five (5) calendar days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given whether or not the addressee receives it.
-89-
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
-90-
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Noteholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of Garden State or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of or by
-91-
reason of such obligations or their creations. Each Noteholder by accepting a
Note waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Notes.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 11.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
-92-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
GARDEN STATE NEWSPAPERS, INC.
By:
Name: Xxxxxx X. Xxxxxxx, XX
Title: Executive Vice President
and Chief Financial
Officer
THE BANK OF NEW YORK,
as Trustee
By:
Name: Xxxx Xxxxx
Title: Assistant Vice
President
EXHIBIT A
[FORM OF SERIES A NOTE]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND
A-93
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
A-94
CUSIP No.
GARDEN STATE NEWSPAPERS, INC.
8-5/8% Senior Subordinated Note due 2011, Series A
No. $200,000,000
GARDEN STATE NEWSPAPERS, INC., a Delaware corporation (the
"Company"), for value received, promises to pay to CEDE & CO. or registered
assigns, the principal sum of TWO HUNDRED MILLION Dollars, on July 1, 2011.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-95
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
GARDEN STATE NEWSPAPERS, INC.
By:
Name:
Title:
By:
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 8-5/8% Senior Subordinated Notes due 2011, Series
A, referred to in the within-mentioned Indenture.
Dated: , 1999
THE BANK OF NEW YORK, as Trustee
By:
Authorized Signatory
A-96
(REVERSE OF NOTE)
8-5/8% Senior Subordinated Note due 2011, Series A
1. INTEREST. GARDEN STATE NEWSPAPERS, INC., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate per annum shown above. Interest on the Note will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from the date of this Note. The Company will pay interest semi-annually in
arrears on each January 1 and July 1 (each, an "Interest Payment Date") and at
stated maturity, commencing on July 1, 1999. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes and on overdue installments of interest (without regard to any applicable
grace periods).
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay principal, premium
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal, premium and interest by its check payable in such
U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR. THE BANK OF NEW YORK (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Registrar or
co-Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture, dated
as of March 16, 1999 (the "Indenture"), between the Company and the Trustee.
This Note is one of a duly authorized issue of Notes of the Company designated
as its 8-5/8% Senior Subordinated Notes due 2011, Series A (the "Initial
Notes"), limited (except as otherwise provided in the
A-97
Indenture) in aggregate principal amount to $300,000,000, which may be issued
under the Indenture. The Notes include the Initial Notes, the Private Exchange
Notes (as defined in the Indenture) and the Unrestricted Notes, as defined
below, issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement. The Initial Notes and the Unrestricted Notes are treated as a
single class of securities under the Indenture. Capitalized terms used herein
shall have the meanings assigned to them in the Indenture unless otherwise
defined herein. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of them. The Notes are general unsecured obligations
of the Company.
5. SUBORDINATION. The Notes are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. (a) OPTIONAL REDEMPTION. The Notes will be redeemable at the
Company's option, in whole at any time or in part from time to time, on and
after July 1, 2004 at the following redemption prices (expressed as a percentage
of principal amount), if redeemed during the twelve-month period commencing on
July 1 of each year set forth below, plus, in each case, accrued interest
thereon to the date of redemption:
Year Percentage
---- ----------
2004......................... 104.312%
2005......................... 102.875%
2006......................... 101.438%
2007 and thereafter.......... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to July 1, 2002, the Company may, at its option, use
the net cash proceeds of one or more Equity Offerings (as defined below) to
redeem (the "Equity Proceeds Offer") up to 35% of the aggregate principal amount
of Notes issued under the Indenture as original issue Notes at a redemption
price of 108.625% of the aggregate
A-98
principal amount of Notes to be redeemed, plus accrued and unpaid interest, to
such redemption date; PROVIDED that at least $130.0 million in aggregate
principal amount of Notes remains outstanding immediately after any such
redemption.
As used in the preceding paragraph, "Equity Offering" means the
issuance and sale of Qualified Capital Stock of the Company.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such Redemption Date,
then, unless the Company defaults in the payment of such Redemption Price, the
Notes called for redemption will cease to bear interest and only right of the
Holders of such Notes will be to receive the payment of the Redemption Price.
8. CHANGE OF CONTROL OFFER. In the event of a Change of Control,
upon the satisfaction of the conditions set forth in the Indenture, the Company
shall be required to offer to purchase all of the then outstanding Notes
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of purchase.
Holders of Notes which are the subject of such an offer to repurchase shall
receive an offer to repurchase and may elect to have such Notes repurchased in
accordance with the provisions of the Indenture pursuant to and in accordance
with the terms of the Indenture.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Notes during a period beginning 15 days before the mailing of a
redemption notice for any Notes or portions thereof selected for redemption.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
A-99
11. UNCLAIMED MONEY. If money for the payment of principal or
interest or premium, if any, remains unclaimed for one year, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
12. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of, premium and interest on the Notes to
redemption or maturity and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of, premium and interest on the Notes).
13. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes. Without consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Notes in addition
to or in place of certificated Notes, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, pay dividends or make certain other
restricted payments, enter into transactions with Affiliates, create dividend or
other payment restrictions affecting Restricted Subsidiaries and merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
16. DEFAULTS AND REMEDIES. If an Event of Default
A-100
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has been offered indemnity or security reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest) if it determines in good faith that withholding notice is in their
interest.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Restricted and Unrestricted
Subsidiaries or their respective Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Note by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
19. AUTHENTICATION. This Note shall not be valid until the Trustee
or authenticating agent manually signs the certificate of authentication on this
Note.
20. GOVERNING LAW. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
21. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed
A-101
on the Notes as a convenience to the Holders of the Notes. No representation is
made as to the accuracy of such numbers as printed on the Notes and reliance may
be placed only on the other identification numbers printed hereon.
23. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement, the Company will be obligated upon the occurrence of certain events
to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Series A Note for a% Senior Subordinated Note
due 2011, Series B, of the Company (an "Unrestricted Note") which has been
registered under the Securities Act, in like principal amount and having terms
identical in all material respects as the Series A Notes. The Holder shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
24. INDENTURE. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time. Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
GARDEN STATE NEWSPAPERS, INC., 0000 Xxxxxxxx Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer.
A-102
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------------------------------------------------------
(please print or type name and address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
---------------------------------------------------------------
attorney to transfer the Note on the books of the Company with full power of
substitution in the premises.
Dated:
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed
by the endorser's bank or broker.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) March [ ], 2001 the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer:
[CHECK ONE]
(1) |_| to the Company or a Subsidiary thereof; or
(2) |_| pursuant to and in compliance with Rule 144A under
A-103
the Securities Act; or
(3) |_| to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) |_| outside the United States to a "foreign purchaser" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(5) |_| pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) |_| pursuant to an effective registration statement under the
Securities Act; or
(7) |_| pursuant to another available exemption from the registration
statement requirements of the Securities Act;
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act (an "Affiliate"):
? The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; PROVIDED, HOWEVER, that if item
(3), (4), (5) or (7) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Note, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (4) and other information as the Trustee or the Company have
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.
If none of the foregoing items is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
A-104
Dated: ________________________ Signed:____________________________________
(Sign exactly as name
appears on the other side
of this Note)
Signature Guarantee:____________________________________________________________
Participants in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note 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 of
1933, as amended, 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 or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________________ ____________________________________
NOTICE: To be executed by an
executive officer
Signature Guarantee:____________________________________________________________
A-105
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.16 or Section 4.17 of the Indenture, check the appropriate
box:
Section 4.16 [ ] Section 4.17 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state the
amount: $_____________
Date: Your Signature:
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:____________________________________________________________
Participants in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
A-106
EXHIBIT B
CUSIP NO.
GARDEN STATE NEWSPAPERS, INC.
8-5/8% Senior Subordinated Note due 2011, Series B
No. $200,000,000
GARDEN STATE NEWSPAPERS, INC., a Delaware corporation (the
"Company"), for value received, promises to pay to or registered assigns, the
principal sum of TWO HUNDRED MILLION Dollars, on July 1, 2011.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-107
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
GARDEN STATE NEWSPAPERS, INC.
By:
Name:
Title:
By:
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 8-5/8% Senior Subordinated Notes due 2011, Series
B referred to in the within-mentioned Indenture.
Dated: , 1999
THE BANK OF NEW YORK, as Trustee
By:
Authorized Signatory
B-108
(REVERSE OF NOTE)
8-5/8% Senior Subordinated Note due 2011, Series B
1. INTEREST. GARDEN STATE NEWSPAPERS, INC., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate per annum shown above. Interest on the Notes will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from the date of original issuance of this Note. The Company will pay
interest semi-annually in arrears on each January 1 and July 1 (each, an
"Interest Payment Date") and at stated maturity, commencing on July 1, 1999.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes and on overdue installments of interest (without regard to any applicable
grace periods).
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are canceled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay principal, premium
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal, premium and interest by its check payable in such
U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, THE BANK OF NEW YORK (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or co-Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture, dated
as of March 16, 1999 (the "Indenture"), between the Company and the Trustee.
This Note is one of a duly authorized issue of Notes of the Company designated
as its 8-5/8% Senior Subordinated Notes due 2011, Series B (the
B-109
"Unrestricted Notes"), limited (except as otherwise provided in the Indenture)
in aggregate principal amount to $300,000,000, which may be issued under the
Indenture. The Notes include the 8-5/8% Senior Subordinated Notes due 2011,
Series A (the "Initial Notes"), the Private Exchange Notes (as defined in the
Indenture) and the Unrestricted Notes. The Initial Notes, the Private Exchange
Notes and the Unrestricted Notes are treated as a single class of securities
under the Indenture. Capitalized terms used herein shall have the meanings
assigned to them in the Indenture unless otherwise defined herein. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are general unsecured obligations of the Company.
5. SUBORDINATION. The Notes are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. (a) OPTIONAL REDEMPTION. The Notes will be redeemable at the
Company's option, in whole at any time or in part from time to time, on and
after July 1, 2004 at the following redemption prices (expressed as a percentage
of principal amount), if redeemed during the twelve-month period commencing on
July 1 of each year set forth below, plus, in each case, accrued interest
thereon to the date of redemption:
Year Percentage
---- ----------
2004 104.312%
2005 102.875%
2006 101.438%
2007 and thereafter 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to July 1, 2002, the Company may, at its option, use
the net cash proceeds of one or more Equity Offerings (as defined below) to
redeem (the "Equity Proceeds Offer") up to 35% of the aggregate principal amount
of Notes issued under the Indenture as original issue
A-110
Notes at a redemption price of 108.625% of the aggregate principal amount of
Notes to be redeemed, plus accrued and unpaid interest, to such redemption date;
PROVIDED that at least $130.0 million in aggregate principal amount of Notes
remains outstanding immediately after any such redemption.
As used in the preceding paragraph, "Equity Offering" means the
issuance and sale of Qualified Capital Stock of the Company.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such Redemption Date,
then, unless the Company defaults in the payment of such Redemption Price, the
Notes called for redemption will cease to bear interest and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
8. CHANGE OF CONTROL OFFER. In the event of a Change of Control,
upon the satisfaction of the conditions set forth in the Indenture, the Company
shall be required to offer to purchase all of the then outstanding Notes
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of purchase.
Holders of Notes which are the subject of such an offer to repurchase shall
receive an offer to repurchase and may elect to have such Notes repurchased in
accordance with the provisions of the Indenture pursuant to and in accordance
with the terms of the Indenture.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Notes during a period beginning 15 days before the mailing of a
redemption notice for any Notes or portions thereof selected for redemption.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
B-111
11. UNCLAIMED MONEY. If money for the payment of principal or
interest or premium, if any, remains unclaimed for one year, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
12. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of, premium and interest on the Notes to
redemption or maturity and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of, premium and interest on the Notes).
13. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes. Without consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Notes in addition
to or in place of certificated Notes, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, pay dividends or make certain other restricted
payments, enter into transactions with Affiliates, create dividend or other
payment restrictions affecting Restricted Subsidiaries and merge or consolidate
with any other Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
16. DEFAULTS AND REMEDIES. If an Event of Default
B-112
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has been offered indemnity or Security reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest) if it determines in good faith that withholding notice is in their
interest.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee under this Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Restricted and Unrestricted
Subsidiaries or their respective Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Note by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
19. AUTHENTICATION. This Note shall not be valid until the Trustee
or authenticating agent manually signs the certificate of authentication on this
Note.
20. GOVERNING LAW. This note shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
21. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed
B-113
on the Notes as a convenience to the Holders of the Notes. No representation is
made as to the accuracy of such numbers as printed on the Notes and reliance may
be placed only on the other identification numbers printed hereon.
23. INDENTURE. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time. Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
GARDEN STATE NEWSPAPERS, INC., 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, Attention: Chief Financial Officer.
B-114
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------------------------------------------------------
(please print or type name and address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
--------------------------------------------------------------------------------
attorney to transfer the Note on the books of the Company with full power of
substitution in the premises.
Dated:
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
Signature Guarantee:____________________________________________________________
Participants in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
B-115
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.16 or Section 4.17 of the Indenture, check the appropriate
box:
Section 4.16 [ ] Section 4.17 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state the
amount: $_____________
Date: Your Signature:
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:____________________________________________________________
Participants in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
B-116
EXHIBIT C
FORM OF LEGEND FOR GLOBAL NOTE
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) 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 NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
A-117
EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[ ], [ ]
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with our proposed purchase of 8-5/8% Senior
Subordinated Notes due 2011 (the "Notes") of GARDEN STATE NEWSPAPERS, INC. (the
"Company"), we confirm that:
1. We have received a copy of the Offering Circular (the "Offering
Circular"), dated March 10, 1999, relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated on pages (i)-(ii)
of the Offering Circular and in the section entitled "Notice to Investors" of
the Offering Circular, including the restrictions on duplication and circulation
of the Offering Circular.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes (as described in the Offering Circular) and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell any Notes prior to the date that is two years after the
original issuance of the Notes, we will do so only (i) to the Company or any of
its Subsidiaries, (ii) inside the United States in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined
A-118
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to the Trustee (as defined in the Indenture relating to
the Notes), a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Notes (the form of which letter
can be obtained from the Trustee), (iv) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (v) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section 3 of
the Employee Retirement Income Security Act of 1974 ("ERISA")), except as
permitted in accordance with ERISA.
5. We understand that, on any proposed resale of any Notes, we will
be required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
D-119
You, the Company, the Trustee and others are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:_________________________________
Name:
Title:
D-120
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Re: GARDEN STATE NEWSPAPERS, INC. (the "Company")
8-5/8% Senior Subordinated
Notes due 2011 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
A-121
You, the Company and counsel for the Company are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
E-122
