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EXHIBIT 4.3
_________________________________________________________
LIBERTY GROUP PUBLISHING, INC.
TO
STATE STREET BANK AND TRUST COMPANY
as Trustee
________________
Indenture
Dated as of January 27, 1998
________________
14 3/4% Senior Subordinated Debentures due 2010
___________________________________________________________
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of January 27, 1998
Trust Indenture Indenture
Act Section Section
----------------- -----------
Section 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
Section 311(a) ............................... 613(a)
(b) ............................... 613(b)
(b)(2) ............................... 703(a)(2)
703(b)
Section 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
Section 313(a) ............................... 703(a)
(b) ............................... 703(b)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(c)
Section 314(a) ............................... 704
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
Section 315(a) ............................... 601(a)
(b) ............................... 602
703(a)(6)
(c) ............................... 601(b)
(d) ............................... 601(c)
(d)(1) ............................... 601(a)(1)
(d)(2) ............................... 601(c)(2)
(d)(3) ............................... 601(c)(3)
(e) ............................... 514
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Trust Indenture Indenture
Act Section Section
----------------- -----------
Section 316(a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
Section 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
Section 318(a) ............................... 107
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions..................................... 1
SECTION 102. Compliance Certificates and Opinions............ 32
SECTION 103. Form of Documents Delivered to Trustee.......... 33
SECTION 104. Acts of Holders; Record Date.................... 34
SECTION 105. Notices, Etc., to Trustee and Company........... 35
SECTION 106. Notice to Holders; Waiver....................... 35
SECTION 107. Conflict with Trust Indenture Act............... 36
SECTION 108. Effect of Headings and
Table of Contents............................... 36
SECTION 109. Successors and Assigns.......................... 37
SECTION 110. Separability Clause............................. 37
SECTION 111. Benefits of Indenture........................... 37
SECTION 112. Governing Law................................... 37
SECTION 113. Legal Holidays.................................. 37
SECTION 114. No Personal Liability of Partners,
Stockholders, Officers, Directors............... 38
ARTICLE TWO
Debenture Forms
SECTION 201. Forms Generally................................. 38
ARTICLE THREE
The Debentures
SECTION 301. Title and Terms................................. 40
SECTION 302. Denominations................................... 43
SECTION 303. Execution, Authentication, Delivery
and Dating...................................... 43
SECTION 304. Temporary Debentures............................ 44
SECTION 305. Registration, Registration of Transfer
and Exchange.................................... 44
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debentures...................................... 55
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SECTION 307. Payment of Interest; Interest Rights
Preserved...................................... 56
SECTION 308. Persons Deemed Owners.......................... 58
SECTION 309. Cancellation................................... 58
SECTION 310. Computation of Interest........................ 59
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture........ 59
SECTION 402. Application of Trust Money..................... 60
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.............................. 61
SECTION 502. Acceleration of Maturity; Rescission and
Annulment...................................... 63
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee......................... 64
SECTION 504. Trustee May File Proofs of Claim............... 65
SECTION 505. Trustee May Enforce Claims Without
Possession of Debentures....................... 66
SECTION 506. Application of Money Collected................. 66
SECTION 507. Limitation on Suits............................ 66
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................ 67
SECTION 509. Restoration of Rights and Remedies............. 68
SECTION 510. Rights and Remedies Cumulative................. 68
SECTION 511. Delay or Omission Not Waiver................... 68
SECTION 512. Control by Holders............................. 69
SECTION 513. Waiver of Past Defaults........................ 69
SECTION 514. Undertaking for Costs.......................... 70
SECTION 515. Waiver of Usury, Stay or Extension Laws........ 70
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities............ 70
SECTION 602. Notice of Defaults............................. 71
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SECTION 603. Certain Rights of Trustee...................... 71
SECTION 604. Not Responsible for Recitals or
Issuance of Debentures......................... 72
SECTION 605. May Hold Debentures............................ 73
SECTION 606. Money Held in Trust............................ 73
SECTION 607. Compensation and Reimbursement................. 73
SECTION 608. Disqualification; Conflicting Interests........ 74
SECTION 609. Corporate Trustee Required; Eligibility........ 74
SECTION 610. Resignation and Removal; Appointment of
Successor...................................... 74
SECTION 611. Acceptance of Appointment by Successor......... 76
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business...................... 76
SECTION 613. Preferential Collection of Claims
Against Company................................ 77
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders................. 77
SECTION 702. Preservation of Information;
Communications to Holders...................... 78
SECTION 703. Reports by Trustee............................. 78
SECTION 704. Reports by Company............................. 78
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Limitation on Merger, Sale
or Consolidation.............................. 79
SECTION 802. Successor Substituted......................... 80
SECTION 803. Transfer of Subsidiary Assets................. 80
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders............................ 81
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SECTION 902. Supplemental Indentures with Consent
of Holders.................................... 82
SECTION 903. Execution of Supplemental Indentures.......... 83
SECTION 904. Effect of Supplemental Indentures............. 83
SECTION 905. Conformity with Trust Indenture Act........... 83
SECTION 906. Reference in Debentures to Supplemental
Indentures.................................... 83
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest...................................... 84
SECTION 1002. Maintenance of Office or Agency............... 84
SECTION 1003. Money for Debenture Payments to be
Held in Trust................................. 85
SECTION 1004. Existence..................................... 86
SECTION 1005. Maintenance of Properties..................... 87
SECTION 1006. Payment of Taxes and Other Claims............. 87
SECTION 1007. Maintenance of Insurance...................... 88
SECTION 1008. Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital
Stock......................................... 88
SECTION 1009. Limitation on Restricted Payments............. 89
SECTION 1010. Limitations on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.................................. 91
SECTION 1011. Limitation on Liens Securing
Indebtedness.................................. 92
SECTION 1012. Limitation on Transactions
with Affiliates............................... 93
SECTION 1013. Limitation on Sale of Assets and
Subsidiary Stock.............................. 94
SECTION 1014. Limitation on Issuances and Sales of
Capital Stock of Wholly Owned
Subsidiaries.................................. 99
SECTION 1015. Repurchase of Debentures at the Option
of the Holder Upon a Change of Control........ 99
SECTION 1016. Investment Company............................ 102
SECTION 1017. Limitation on Lines of Business............... 102
SECTION 1018. Statement by Officers as to
Default; Compliance Certificates.............. 102
SECTION 1019. Waiver of Certain Covenants................... 103
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ARTICLE ELEVEN
Redemption of Debentures
SECTION 1101. Right of Redemption........................... 103
SECTION 1102. Applicability of Article...................... 104
SECTION 1103. Election to Redeem; Notice to Trustee......... 104
SECTION 1104. Selection by Trustee of Debentures to Be
Redeemed...................................... 104
SECTION 1105. Notice of Redemption.......................... 105
SECTION 1106. Deposit of Redemption Price................... 105
SECTION 1107. Debentures Payable on Redemption Date......... 106
SECTION 1108. Debentures Redeemed in Part................... 106
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or
Covenant Defeasance........................... 107
SECTION 1202. Defeasance and Discharge...................... 107
SECTION 1203. Covenant Defeasance........................... 107
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance........................... 108
SECTION 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions................ 111
SECTION 1206. Reinstatement................................. 112
ARTICLE THIRTEEN
Subordination
SECTION 1301. Agreement to Subordinate...................... 112
SECTION 1302. Liquidation; Dissolution; Bankruptcy.......... 112
SECTION 1303. Default on Senior Indebtedness................ 113
SECTION 1304. Acceleration of Debentures.................... 115
SECTION 1305. When Distribution Must Be Paid Over........... 115
SECTION 1306. Notice by Company............................. 116
SECTION 1307. Subrogation................................... 116
SECTION 1308. Relative Rights............................... 117
SECTION 1309. Subordination May Not Be Impaired
by Company.................................... 117
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SECTION 1310. Distribution or Notice to Senior Discount
Debentures Trustee............................ 118
SECTION 1311. Rights of Trustee and Paying Agent............ 119
SECTION 1312. Authorization to Effect Subordination......... 119
SECTION 1313. Amendments.................................... 120
Annex A FORM OF DEBENTURE.................................. A-1
Annex B FORM OF REGULATION S CERTIFICATE
FOR HOLDER......................................... X-0
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XXXXXXXXX, dated as of January 27, 1998, between Liberty Group
Publishing, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and State
Street Bank and Trust Company, a trust company duly organized and existing
under the laws of the Commonwealth of Massachusetts, as Trustee (herein called
the "Trustee").
Each party agrees as follows from and after the Exchange Date for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Company's 14 3/4% Series A Senior Subordinated Debentures due 2010 and the
class of 14 3/4% Series B Senior Subordinated Debentures due 2010 to be
exchanged for the 14 3/4% Series A Senior Subordinated Debentures due 2010 of
the Company:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP.
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a
consolidated basis in accordance with generally accepted accounting
principles; and
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(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital
Stock of any Person existing at the time such Person becomes a Subsidiary of
the Company, including by designation, or is merged or consolidated into or
with the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of, or
combination with, any Person (including, without limitation, the acquisition of
more than 50% of the Equity Interests of any Person) or all or substantially
all the assets of any Person by any other Person, whether by purchase, stock
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by
contract, or otherwise, provided, that, with respect to ownership interest in
the Company and its Subsidiaries, a Beneficial Owner of 10% or more of the
total voting power normally entitled to vote in the election of directors,
managers or trustees, as applicable, shall for such purposes be deemed to
constitute control.
"Asset Sale" has the meaning set forth in Section 1013.
"Asset Sale Offer" has the meaning set forth in Section 1013.
"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (i) the sum of
the
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products (a) of the number of months from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"Beneficial Owner" or "beneficial owner" for purposes of the definition
of Change of Control and Affiliate has the meaning attributed to it in Rules
13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue Date),
whether or not applicable.
"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 authorized, with respect to any particular matter, to exercise the power
of the board of directors of such Person.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
or Hartford, Connecticut are authorized or obligated by law or executive order
to close.
"Capitalized Lease Obligation" means, as to any Person, the obligations
of such Person under a lease that are required to be classified and accounted
for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that corporation.
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"Cash Equivalent" means (a) securities issued or directly and fully
guaranteed or insured by the United States Government, or any agency or
instrumentality thereof, having maturities of not more than one year from the
date of acquisition; (b) marketable general obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition thereof, having a credit
rating of "A" or better from either Standard & Poor's Ratings Group or Xxxxx'x
Investors Service, Inc.; (c) certificates of deposit, time deposits, Eurodollar
time deposits, overnight bank deposits or bankers' acceptances having
maturities of not more than one year from the date of acquisition thereof of
any domestic commercial bank, the long-term debt of which is rated at the time
of acquisition thereof at least A or the equivalent thereof by Standard &
Poor's Ratings Group, or A or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and having capital and surplus in excess of $500,000,000; (d)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (a), (b) and (c) above entered
into with any bank meeting the qualifications specified in clause (c) above;
(e) commercial paper rated at the time of acquisition thereof at least A-2 or
the equivalent thereof by Standard & Poor's Ratings Group or P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of investments, and in either
case maturing within 270 days after the date of acquisition thereof; and (f)
interests in any investment company which invests solely in instruments of the
type specified in clauses (a) through (e) above.
"CEDEL" has the meaning set forth in Section 201.
"Change of Control" has the meaning specified in Section 1015.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other class of such
Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"consolidated" means, with respect to the Company, the consolidated
accounts of its Subsidiaries with those of the Company, all in accordance with
GAAP; provided that "consolidated" will not include consolidation of the
accounts of any Unrestricted Subsidiary with the accounts of the Company.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such Person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) consolidated
income taxes, (ii) consolidated depreciation and amortization (including
amortization of debt issuance costs in connection with any Indebtedness of
such Person and its Subsidiaries), (iii) Consolidated Fixed Charges and (iv)
all other non-cash charges; provided that consolidated income taxes,
depreciation and amortization of a Subsidiary of such Person that is less than
wholly owned shall only be added to the extent of the equity interest of such
Person in such Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to
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Capitalized Lease Obligations) of such Person and its Consolidated Subsidiaries
during such period, excluding amortization of debt issuance costs incurred in
connection with the Debentures, the Senior Discount Debentures, the Principal
Subsidiary Notes or the Credit Agreement but including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period,
and (b) the amount of cash dividends paid by such Person or any of its
Consolidated Subsidiaries in respect of Preferred Stock (other than by
Subsidiaries of such Person to such Person or such Person's wholly owned
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) to the extent such
expense would result in a liability upon the consolidated balance sheet of such
Person in accordance with GAAP, interest expense attributable to any
Indebtedness represented by the guaranty by such Person or a Subsidiary of such
Person of an obligation of another Person shall be deemed to be the interest
expense attributable to the Indebtedness guaranteed. Notwithstanding the
foregoing, Consolidated Fixed Charges shall not include costs, fees and
expenses incurred in connection with the Transactions, and any non-cash charge
or expense associated with the write-off of deferred debt issuance costs
associated with the Credit Agreement, the Principal Subsidiary Notes, the
Senior Discount Debentures or the Debentures.
"Consolidated Net Income" means, with respect to any Person for any
period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains and losses which
are either extraordinary (as determined in accordance with GAAP) or are either
unusual or nonrecurring (including any gain from the sale or other disposition
of assets outside the ordinary course of business or from the issuance or sale
of any Capital Stock), (b) the net income, if positive, of any Person, other
than a Consolidated Subsidiary, in which such
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Person or any of its Consolidated Subsidiaries has an interest, except to the
extent of the amount of any dividends or distributions actually paid in cash to
such Person or a Consolidated Subsidiary of such Person during such period, but
in any case (i) not in excess of such Person's pro rata share of such Person's
net income for such period, (c) the net income or loss of any Person acquired
in a pooling of interests transaction for any period prior to the date of such
Acquisition, (d) the net income, if positive, of any of such Person's
Consolidated Subsidiaries in the event and solely to the extent that the
declaration or payment of dividends or similar distributions is not at the time
permitted by operation of the terms of its charter or bylaws or any other
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Consolidated Subsidiary, (e) the effects of
changes in accounting principles, (f) any non-cash compensation expense in
connection with the exercise of, grant to or repurchase from officers,
directors and employees of stock, stock options or stock equivalents, (g) any
non-cash charge or expense associated with the write-off of deferred debt
issuance costs associated with the Credit Agreement, the Principal Subsidiary
Notes, the Senior Discount Debentures or the Debentures, and (h) costs, fees
and expenses incurred in connection with the Transactions.
"Consolidated Net Worth" of any Person at any date means the aggregate
consolidated stockholders' equity of such Person (plus amounts of equity
attributable to preferred stock) and its Consolidated Subsidiaries, as would be
shown on the consolidated balance sheet of such Person prepared in accordance
with GAAP, adjusted to exclude (to the extent included in calculating such
equity), (a) the amount of any such stockholders' equity attributable to
Disqualified Capital Stock or treasury stock of such Person and its
Consolidated Subsidiaries, (b) all upward revaluations and other write-ups in
the book value of any asset of such Person or a Consolidated Subsidiary of such
Person subsequent to the Issue Date, and (c) all investments in subsidiaries
that are not Consolidated Subsidiaries and in Persons that are not
Subsidiaries.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement
reporting purposes with the financial statements of such Person in accordance
with GAAP.
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"Corporate Trust Office" means the principal office of the Trustee at
Golden Square, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Agreement" means the one or more credit agreements (including,
without limitation, the Revolving Credit Facility) entered into by and among
the Company, certain of its Subsidiaries (if any) and certain financial
institutions, which provide for in the aggregate one or more term loans and/or
revolving credit and letter of credit facilities, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit agreement and/or related documents may be
amended, restated, supplemented, renewed, replaced or otherwise modified from
time to time whether or not with the same agent, trustee, representative
lenders or holders, and, subject to the proviso to the next succeeding
sentence, irrespective of any changes in the terms and conditions thereof.
Without limiting the generality of the foregoing, the term "Credit Agreement"
shall include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any such credit agreement and all
refundings, refinancings and replacements of any such credit agreement,
including any agreement (i) extending the maturity of any Indebtedness incurred
thereunder or contemplated thereby, (ii) adding or deleting borrowers or
guarantors thereunder, so long as borrowers and issuers include one or more of
the Company and its Subsidiaries and their respective successors and assigns,
(iii) increasing the amount of Indebtedness incurred thereunder or available to
be borrowed thereunder, provided that on the date such Indebtedness is incurred
it would not be prohibited by Section 1008 or (iv) otherwise altering the terms
and conditions thereof in a manner not prohibited by the terms hereof.
"Debentures" means, collectively, the Initial Debentures and, when and
if issued as provided in the Registration Rights Agreement, the Exchange
Debentures, and the Secondary Debentures.
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"Debentures Custodian" means the Trustee, as custodian with respect to
the Debentures in global form, or any successor entity thereto.
"Debenture Register" and "Debentures Registrar" have the respective
meaning specified in Section 305.
"Debt Incurrence Ratio" has the meaning set forth in Section 1008.
"Default" has the meaning set forth in Section 602.
"Defaulted Interest" has the meaning specified in Section 307.
"Definitive Debentures" means Debentures that are in the form of
Debenture as set forth in Annex A hereof that do not include the information
called for by footnotes 1 and 6 thereof.
"Depositary" has the meaning set forth in Section 201.
"Disqualified Capital Stock" means (a) except as set forth in (b), with
respect to any Person, any Equity Interest of such Person that, by its terms or
by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time or
both would be, required to be redeemed or repurchased (including at the option
of the holder thereof) by such Person or any of its Subsidiaries, in whole or
in part, on or prior to the Stated Maturity of the Debentures and (b) with
respect to any Subsidiary of such Person (including with respect to any
Subsidiary of the Company), any Equity Interests other than any common equity
with no preference, privileges, or redemption or repayment provisions and
preferred equity owned by the Company or one of its Subsidiaries.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership or membership interests in, such Person.
"Euroclear" has the meaning set forth in Section 201.
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"Event of Default" has the meaning specified in Section 501.
"Event of Loss" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
"Exchange Date" means the date fixed by the Company at its option upon
which the Company's Senior Preferred Stock shall be exchanged for an aggregate
principal amount of Debentures equal to the liquidation value of the Senior
Preferred Stock exchanged.
"Exchange Debentures" means the 14 3/4% Senior Subordinated Debentures
due 2010, as supplemented from time to time in accordance with the terms
hereof, to be issued pursuant to this Indenture in connection with the offer to
exchange Exchange Debentures for the Initial Debentures that may be made by the
Company pursuant to the Registration Rights Agreement.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Excluded Person" means Green Equity Investors, L.P. and its Related
Parties.
"Exempted Affiliate Transaction" means (a) compensation,
indemnification and other benefits paid or made available (x) pursuant to the
employment agreements between the Company and members of its senior management,
or (y) for or in connection with services actually rendered to the Company and
comparable to those generally paid or made available by entities engaged in the
same or similar businesses (including reimbursement or advancement of
reasonable out-of-pocket expenses, directors' and officers' liability insurance
and loans to officers, directors and employees (i) in the ordinary course of
business and (ii) to purchase Holdings Common Stock in an amount not to exceed
$1.0 million), (b) transactions, expenses and payments in connection with the
Transactions, (c) any Restricted
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Payments or other payments or transactions expressly permitted under Section
1009, (d) payments to LGP for management services under the Management
Agreement in an amount not to exceed $1.5 million in any fiscal year, plus
reimbursement of reasonable out-of-pocket costs and expenses, (e) payments to
LGP for reasonable and customary fees and expenses for financial advisory and
investment banking services provided to the Company in connection with major
financial transactions, and (f) transactions between or among the Company and
its Subsidiaries or between or among Subsidiaries of the Company, provided that
any ownership interest in any such Subsidiary which is not beneficially owned
directly or indirectly by the Company or any of its Subsidiaries is not
beneficially owned by an Affiliate of the Company other than by virtue of the
direct or indirect ownership interest in such Subsidiary held (in the
aggregate) by the Company and/or one or more of its Subsidiaries.
"Fractional Secondary Debenture" has the meaning specified in Section
301.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Debenture" means a Debenture (including a Rule 000X Xxxxxx
Xxxxxxxxx or a Regulation S Global Debenture) that contains the information
referred to in footnotes 1 and 6 to the form of Debenture as set forth in Annex
A hereof.
"Holder" means a Person in whose name a Debenture is registered in the
Debenture Register.
"Holdings Common Stock" means the Common Stock, par value $0.01 per
share, of the Company.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such any Person, to
the extent such liabilities and obligations would appear as a liability upon
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the consolidated balance sheet of such Person in accordance with GAAP, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii)
evidenced by bonds, notes, debentures or similar instruments, (iii)
representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade creditors;
(b) all liabilities and obligations, contingent or otherwise, of such Person
(i) evidenced by bankers' acceptances or similar instruments issued or accepted
by banks, (ii) relating to any Capitalized Lease Obligation, or (iii) evidenced
by a letter of credit or a reimbursement obligation of such Person with respect
to any letter of credit; (c) all net obligations of such Person under Interest
Swap and Hedging Obligations; (d) all liabilities and obligations of others of
the kind described in the preceding clauses (a), (b) or (c) that such Person
has guaranteed or that is otherwise its legal liability or which are secured by
one or more Liens on any assets or property of such Person; provided that if
the liabilities or obligations which are secured by a Lien have not been
assumed in full by such Person or are not such Person's legal liability in
full, the amount of such Indebtedness for the purposes of this definition shall
be limited to the lesser of the amount of such Indebtedness secured by such
Lien or the fair market value of the assets or property securing such Lien; (e)
any and all deferrals, renewals, extensions, refinancing and refundings
(whether direct or indirect) of, or amendments, modifications or supplements
to, any liability of the kind described in any of the preceding clauses (a),
(b), (c) or (d), or this clause (e), whether or not between or among the same
parties; and (f) all Disqualified Capital Stock of such Person (measured at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends). For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant
to the Indenture, and if such price is based upon, or measured by, the Fair
Market Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the issuer (or managing
general partner of the issuer) of such Disqualified Capital Stock.
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"Incurrence Date" has the meaning set forth in Section 1008.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Debentures" means the 14 3/4% Senior Subordinated Debentures
due 2010, as supplemented from time to time in accordance with the terms
hereof, issued under this Indenture that contain the information referred to in
footnotes 1, 5 and 7 to the form of Debenture as set forth in Annex A hereof.
"Interest Payment Date" means each February 1 and August 1, commencing
the earlier of the first February 1 or August 1 immediately following the
Exchange Date.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other Person or any agreement to make any such acquisition; (b) the making
by such Person of any deposit with, or advance,
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loan or other extension of credit to, such other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other Person) or any
commitment to make any such advance, loan or extension (but excluding accounts
receivable, endorsements for collection or deposits arising in the ordinary
course of business); (c) other than guarantees of Indebtedness of the Company
or any Subsidiary to the extent permitted by the Section 1008, the entering
into by such Person of any guarantee of, or other credit support or contingent
obligation with respect to, Indebtedness or other liability of such other
Person; (d) the making of any capital contribution by such Person to such other
Person; and (e) the designation by the Board of Directors of the Company of any
Person to be an Unrestricted Subsidiary. The Company shall be deemed to make
an Investment in an amount equal to the fair market value of the net assets of
any subsidiary (or, if neither the Company nor any of its Subsidiaries has
theretofore made an Investment in such subsidiary, in an amount equal to the
Investments being made), at the time that such subsidiary is designated an
Unrestricted Subsidiary, and any property transferred to an Unrestricted
Subsidiary from the Company or a Subsidiary of the Company shall be deemed an
Investment valued at its fair market value at the time of such transfer. The
amount of any such Investment shall be reduced by any liabilities or
obligations of the Company or any of its Subsidiaries to be assumed or
discharged in connection with such Investment by an entity other than the
Company or any of its Subsidiaries. For purposes of clarification and greater
certainty, the designation of a newly formed subsidiary as an Unrestricted
Subsidiary shall not constitute an Investment.
"Issue Date" means the date of first issuance of the Debentures under
the Indenture.
"Junior Security" means, so long as the effect of any exclusion
employing this definition is not to cause the Debentures to be treated in any
bankruptcy case or proceeding or similar event as part of the same class of
claims as Senior Indebtedness or any class of claims pari passu with, or senior
to, the Senior Indebtedness, for any payment or distribution, debt or equity
securities of the Company or any successor corporation provided for by a plan
of reorganization or readjustment that are subordinated to the Senior
Indebtedness and any securities issued under such plan in respect of Senior
Indebtedness at least to the same
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extent that the Debentures are subordinated to the payment of all Senior
Indebtedness then outstanding; provided that (a) if a new corporation results
from such reorganization or readjustment, such corporation assumes any Senior
Indebtedness not paid in full in cash or Cash Equivalents in connection with
such reorganization or readjustment and (b) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment.
"Leverage Ratio" on any date of determination (the "Transaction Date")
means the ratio, on a pro forma basis, of (a) the aggregate amount of
Indebtedness of the Company and its Subsidiaries on a consolidated basis to (b)
the aggregate amount of Consolidated EBITDA of the Company attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period; provided, that for purposes of calculating Consolidated
EBITDA for this definition, (i) Acquisitions which occurred during the
Reference Period or subsequent to the Reference Period and on or prior to the
Transaction Date shall be assumed to have occurred on the first day of the
Reference Period, (ii) transactions giving rise to the need to calculate the
Leverage Ratio shall be assumed to have occurred on the first day of the
Reference Period, (iii) the incurrence of any Indebtedness or issuance of any
Disqualified Capital Stock during the Reference Period or subsequent to the
Reference Period and on or prior to the Transaction Date (and the application
of the proceeds therefrom to the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the first day of the
Reference Period, and (iv) the Consolidated Fixed Charges of such Person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for the
entire period, unless such Person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the
12-month period immediately following the Transaction Date) that has the effect
of fixing the interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"LGP" means Xxxxxxx Xxxxx & Partners, L.P.
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"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Liquidated Damages" shall have the meaning specified in the
Registration Rights Agreement.
"Management Agreement" means the management agreement, dated as of the
Issue Date, between the Principal Subsidiary on one hand and LGP on the other
hand substantially as in effect on the Issue Date.
"Maturity", when used with respect to any Debenture, means the date on
which the principal of such Debenture becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified Capital
Stock and by the Company and its Subsidiaries in respect of an Asset Sale plus,
in the case of an issuance of Qualified Capital Stock upon any exercise,
exchange or conversion of securities (including options, warrants, rights and
convertible or exchangeable debt) of the Company that were issued for cash on
or after the Issue Date, the amount of cash originally received by the Company
upon the issuance of such securities (including options, warrants, rights and
convertible or exchangeable debt) less, in each case, the sum of all payments,
fees, commissions and (in the case of Asset Sales, reasonable and customary)
expenses (including, without limitation, the fees and expenses of legal counsel
and investment banking fees and expenses) incurred in connection with such
Asset Sale or sale of Qualified Capital Stock, and, in the case of an Asset
Sale only, less (i) the amount (estimated reasonably and in good faith by the
Company) of income, franchise, sales and other applicable taxes required to be
paid by the Company or any of its respective Subsidiaries in connection with
such Asset Sale, (ii) the amounts of any repayments of Indebtedness secured,
directly or indirectly, by Liens on the assets which are the subject of such
Asset Sale or Indebtedness associated with such assets which is due by reason
of such Asset Sale (i.e., such disposition is permitted by the terms of the
instruments evidencing or applicable to such Indebtedness, or by the terms of a
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consent granted thereunder, on the condition that the proceeds (or portion
thereof) of such disposition be applied to such Indebtedness), and other fees,
expenses and other expenditures, in each case, reasonably incurred as a
consequence of such repayment of Indebtedness (whether or not such fees,
expenses or expenditures are then due and payable or made, as the case may be);
(iii) all amounts deemed appropriate by the Company (as evidenced by a signed
certificate of the Chief Financial Officer of the Company delivered to the
Trustee) to be provided as a reserve, in accordance with GAAP, against any
liabilities associated with such assets which are the subject of such Asset
Sale; and (iv) with respect to Asset Sales by Subsidiaries of the Company, the
portion of such cash payments attributable to Persons holding a minority
interest in such Subsidiary.
"Obligation" means any principal, premium or interest payment, or
monetary penalty, or damages, or purchase price due by the Company or any
Subsidiary under the terms of the Debentures or the Indenture, including any
Liquidated Damages due to the terms of the Registration Rights Agreement.
"Offering Memorandum" means the offering memorandum, dated January 15,
1998, and supplemented January 20, 1998, relating to the offering of the
Debentures.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officer's
Certificate given pursuant to Section 1018 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Debentures, means, as of the
date of determination, all Debentures theretofore authenticated and delivered
under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
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(ii) Debentures for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debentures; provided that, if such Debentures are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Debentures which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Debentures have been authenticated
and delivered pursuant to this Indenture, other than any such Debentures
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Debentures are held by a bona fide purchaser
in whose hands such Debentures are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Debentures
and that the pledgee is not the Company or any other obligor upon the
Debentures or any Affiliate of the Company or of such other obligor. Secondary
Debentures shall be deemed Outstanding commencing as of the Interest Payment
Date with respect to which they are authenticated and delivered in lieu of cash
interest.
"pari passu", when used with respect to the ranking of any Indebtedness
of any Person in relation to other Indebtedness of such Person, means that each
such Indebtedness (a) either (i) is not subordinated in right of payment to any
other Indebtedness of such Person or (ii) is
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subordinate in right of payment to the same Indebtedness of such Person as is
the other and is so subordinate to the same extent and (b) is not subordinate
in right of payment to the other or to any Indebtedness of such Person as to
which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest (and Liquidated Damages, if any)
on any Debentures on behalf of the Company.
"Payment Blockage Period" has the meaning set forth in Section 1303.
"Payment Default" has the meaning set forth in Section 1303.
"Payment Notice" has the meaning set forth in Section 1303.
"Permitted Indebtedness" means any of the following:
(a) that the Company may incur Indebtedness evidenced by the Senior
Discount Debentures and by the Debentures and represented by this
Indenture up to the amounts specified therein as of the date thereof and
the Principal Subsidiary and its Subsidiaries may incur Indebtedness
evidenced by the Principal Subsidiary Notes and the guarantees thereof
and represented by the Principal Subsidiary Indenture up to the amounts
specified therein as of the date thereof;
(b) that the Company and its Subsidiaries, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, that was permitted by this Indenture to be
incurred and any Indebtedness of the Principal Subsidiary outstanding on
the Issue Date after giving effect to the Transactions;
(c) the Company and its Subsidiaries may incur Indebtedness solely
in respect of bankers's acceptances and letters of credit (in addition to
any such Indebtedness incurred under the Credit Agreement in accordance
with the Indenture) (to the extent that such incurrence does not result
in the incurrence of any obligation to repay any obligation relating to
borrowed
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money of others), all in the ordinary course of business in accordance
with customary industry practices, in amounts and for the purposes
customary in the Company's industry; provided, that the aggregate
principal amount outstanding of such Indebtedness (including any
Indebtedness issued to refinance, refund or replace such Indebtedness)
shall not exceed $5.0 million;
(d) the Company and the Subsidiaries may incur Indebtedness arising
from tender, bid, performance or government contract bonds, other
obligations of like nature, or warranty or contractual service
obligations of like nature, in any case, incurred by the Company or its
Subsidiaries in the ordinary course of business;
(e) the Company and its Subsidiaries may incur Interest Swap and
Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate or currency risk with respect to any fixed or
floating rate Indebtedness that is permitted by the Indenture to be
outstanding or any receivable or liability the payment of which is
determined by reference to a foreign currency; provided, that the
notional amount of any such Interest Swap and Hedging Obligation does not
exceed the principal amount of Indebtedness to which such Interest Swap
and Hedging Obligation relates; and
(f) the Company may incur Indebtedness to any Subsidiary, and any
Subsidiary may incur Indebtedness to any other Subsidiary or to the
Company; provided, that, in the case of Indebtedness of the Company, such
obligations shall be unsecured and subordinated in all respects to the
Company's obligations pursuant to the Debentures and the date of any
event that causes such Subsidiary no longer to be a Subsidiary shall be
an Incurrence Date.
"Permitted Investment" means Investments in (a) any of the Debentures
or Senior Discount Debentures; (b) Cash Equivalents; (c) intercompany notes to
the extent permitted under clause (f) of the definition of "Permitted
Indebtedness," provided that Indebtedness under any such notes of a Subsidiary
shall be deemed to be a Restricted Investment if such Person ceases to be a
Subsidiary; (d) Investments in the form of promissory notes of members of the
Company's management not to exceed $1.0 million in principal amount at any time
outstanding solely in
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consideration of the purchase by such Persons of Qualified Capital Stock of the
Company; (e) Investments by the Company or any Subsidiary in any Person that is
or immediately after such Investment becomes a Subsidiary, or immediately after
such Investment merges or consolidates into the Company or any Subsidiary in
compliance with the terms of the Indenture, provided that such Person is
engaged in all material respects in a Related Business; (f) Investments in the
Company by any Subsidiary, provided that in the case of Indebtedness of the
Company constituting any such Investment, such Indebtedness shall be unsecured
and subordinated in all respects to the Company's obligations under the
Debentures; (g) Investments in securities of trade creditors or customers
received in settlement of obligations that arose in the ordinary course of
business or pursuant to any plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of such trade creditors or customers; (h)
Investments by the Company outstanding on the Issue Date; (i) transactions or
arrangements with officers or directors of the Company or any Subsidiary
entered into in the ordinary course of business (including compensation or
employee benefit arrangements with any officer or director of the Company or
any Subsidiary permitted under Section 1012; (j) Investments in Persons (other
than Affiliates of the Company) received as consideration from Asset Sales to
the extent not prohibited by Section 1013; (k) additional Investments at any
time outstanding not to exceed the sum of (i) $5.0 million and (ii) the
cumulative gain (net of taxes and all payments, fees, commissions and expenses
incurred in such sale or disposition) realized by the Company and its
Subsidiaries in cash or Cash Equivalents on the sale or other disposition after
the Issue Date of Investments (including Permitted Investments and Restricted
Investments) made after the Issue Date in accordance with this Indenture (but
only to the extent that such gain is excluded from the net income of the
Company and the Consolidated Subsidiaries by the definition of Consolidated Net
Income); and (l) the acquisition of Equity Interests of a Person engaged in a
Related Business, other than a Person described in clause (e), through the
issuance of Holdings Common Stock.
"Permitted Lien" means (a) Liens existing on the Issue Date; (b) Liens
imposed by governmental authorities for taxes, assessments or other charges not
yet subject to penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company in
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accordance with GAAP; (c) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP; (d) Liens securing the performance of bids,
trade contracts (other than borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (e) easements,
rights-of-way, zoning, similar restrictions and other similar encumbrances or
title defects which, singly or in the aggregate, do not in any case materially
detract from the value of the property subject thereto (as such property is
used by the Company or any of its Subsidiaries) or interfere with the ordinary
conduct of the business of the Company or any of its Subsidiaries; (f) Liens
arising by operation of law in connection with judgments, only to the extent,
for an amount and for a period not resulting in an Event of Default with
respect thereto; (g) pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation; (h) Liens securing the Debentures;
(i) Liens securing Indebtedness of a Person existing at the time such Person
becomes a Subsidiary or is merged with or into the Company or a Subsidiary or
Liens securing Indebtedness incurred in connection with an Acquisition,
provided that such Liens were in existence prior to the date of such
Acquisition, were not incurred in anticipation thereof, and do not extend to
any other assets; (j) Liens arising from Purchase Money Indebtedness permitted
to be incurred under paragraph (a) of Section 1008 provided such Liens relate
solely to the property which is subject to such Purchase Money Indebtedness;
(k) leases or subleases granted to other Persons in the ordinary course of
business not materially interfering with the conduct of the business of the
Company or any of its Subsidiaries or materially detracting from the value of
the assets of the Company or any Subsidiary; (1) Liens arising from
precautionary Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company or any of its Subsidiaries in the
ordinary course of business; (m) Liens securing Refinancing Indebtedness
incurred to refinance any Indebtedness that was previously so secured in
accordance
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with the Indenture; (n) Liens securing Senior Indebtedness of the Company or
Senior Indebtedness of its Subsidiaries incurred in accordance with the
Indenture; (o) Liens securing Indebtedness incurred under paragraph (b) of
Section 1008; and (p) any interest or title of a lessor under any lease,
whether or not characterized as capital or operating, provided that such Liens
do not extend to any property or assets which is not leased property subject to
such lease.
"Permitted Payments" means, without duplication, (a) the payments
provided for by clauses (a), (d) and (e) of the definition of "Exempted
Affiliate Transaction"; provided that in the case of clause (d) of such
definition, no Default or Event of Default shall have occurred or be continuing
and the obligation to pay such amounts has been subordinated to the payment of
the Debentures; (b) the repurchase of common stock, stock options and stock
equivalents of the Company held by former directors, officers or employees of
the Company or any of its Subsidiaries in an aggregate amount not to exceed in
any fiscal year $1.0 million plus the aggregate Net Cash Proceeds received by
the Company from the sale of Holdings Common Stock to directors, officers or
employees of the Company; provided, that any amount not so paid in any fiscal
year may be paid in future fiscal years; and (c) Restricted Payments in an
aggregate amount not to exceed $4.0 million.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Post-Commencement Interest and Expense Claims" means any and all
claims arising after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding for interest on Senior Indebtedness at the
rate (including any applicable post-default rate) set forth in the instrument
evidencing or agreement governing such Senior Indebtedness or for expense
reimbursement or indemnification on the terms set forth in such instrument or
agreement, whether or not such claims are enforceable, allowable or allowed in
such bankruptcy, insolvency, receivership or similar proceeding and even if
such claims are not enforceable or allowed therein.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a
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portion of the same debt as that evidenced by such particular Debenture; and,
for the purposes of this definition, any Debenture authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Debenture shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Debenture.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person, to shares of Capital Stock of any other class of such Person.
"Principal Subsidiary" means Liberty Group Operating, Inc., a Delaware
corporation.
"Principal Subsidiary Indenture" means the Indenture, dated January 27,
1998, among Principal Subsidiary, the Subsidiary guarantors named therein, and
State Street Bank and Trust Company, as amended from time to time, and any
indenture in connection with any Refinancing Indebtedness incurred in
connection with the Principal Subsidiary Notes.
"Principal Subsidiary Notes" means the 9 3/8% Senior Subordinated Notes
due 2008 of Principal Subsidiary and any Refinancing Indebtedness incurred in
connection with such Principal Subsidiary Notes.
"pro forma" includes, with respect to an Acquisition or the incurrence
of Indebtedness in connection therewith, all adjustments, permitted or required
to be included pursuant to Article 11 of Regulation S-X and subject to
agreed-upon procedures to be performed by the Company's independent accountants
to determine whether the pro forma calculations are made in accordance with
Article 11 of Regulation S-X.
"Public Equity Offering" means an underwritten offering of common stock
of the Company or a Subsidiary for cash pursuant to an effective registration
statement under the Securities Act, provided at the time of or upon
consummation of such offering, such common stock of the Company or a Subsidiary
is listed on a national securities
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exchange or quoted on the national market system of the Nasdaq Stock Market.
"Purchase Date" means the settlement date specified by the Company in
an Asset Sale Offer or Change of Control Offer, which shall be within three
business days of the expiration date specified in such offer.
"Purchase Money Indebtedness" of any Person means any Indebtedness of
such Person to any seller or other Person incurred to finance the acquisition
or construction (including in the case of a Capitalized Lease Obligation, the
lease) of any business or real or personal tangible property (or, in each case,
any interest therein) acquired or constructed after the Issue Date which, in
the reasonable good faith judgment of the Board of Directors of the Company, is
related to a Related Business of the Company and which is incurred concurrently
with, or within 180 days of, such acquisition or the completion of such
construction and, if secured, is secured only by the assets so financed.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Exchange" means any legal defeasance, redemption,
retirement, repurchase or other acquisition of Capital Stock or Indebtedness of
the Company issued on or after the Issue Date with the Net Cash Proceeds
received by the Company from the substantially concurrent sale of its Qualified
Capital Stock or any exchange of Qualified Capital Stock of the Company for any
Capital Stock or Indebtedness of the Company issued on or after the Issue Date.
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Period" with regard to any Person means the four full fiscal
quarters (or such lesser period during which such Person has been in existence)
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Debentures or the Indenture; provided that
"Reference Period" with regard to
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the Company shall include periods prior to the Acquisition of its predecessors.
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital
Stock (a) issued in exchange for, or the proceeds from the issuance and sale of
which are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the
case of Disqualified Capital Stock, liquidation preference, not to exceed
(after deduction of the amount of fees, consents, premiums, prepayment
penalties and reasonable expenses incurred in connection with such Refinancing)
the lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital
Stock so Refinanced and (ii) if such Indebtedness being Refinanced was issued
with an original issue discount, the accreted value thereof (as determined in
accordance with GAAP) at the time of such Refinancing; provided, that if
Disqualified Capital Stock is to be so refinanced or if the Indebtedness to be
so refinanced is not Senior Indebtedness, (A) such Refinancing Indebtedness of
any Subsidiary of the Company shall only be used to Refinance outstanding
Indebtedness or Disqualified Capital Stock of such Subsidiary, (B) such
Refinancing Indebtedness shall (x) not have an Average Life shorter than the
Indebtedness or Disqualified Capital Stock to be so refinanced at the time of
such Refinancing and (y) in all respects, be no less subordinated or junior, if
applicable, to the rights of Holders of the Debentures than was the
Indebtedness or Disqualified Capital Stock to be refinanced, (C) such
Refinancing Indebtedness shall have a final stated maturity or redemption date,
as applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness or Disqualified Capital Stock to be so
refinanced, and (D) such Refinancing Indebtedness shall be secured (if secured)
in a manner no more adverse to the Holders of the Debentures than the terms of
the Liens (if any) securing such refinanced Indebtedness, including, without
limitation, the amount of Indebtedness secured shall not be increased (except
by the amount of fees, consents, premiums, prepayment penalties and reasonable
expenses incurred in connection with such Refinancing). For purposes of
clarification and greater certainty, if Indebtedness
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permitted by the terms of this Indenture (including clauses (a), (b) and (c) of
the second paragraph of Section 1008) is repaid, redeemed, defeased, refunded,
refinanced, discharged or otherwise retired for value from the proceeds of
Refinancing Indebtedness, the maximum amount of such Refinancing Indebtedness
shall be determined in accordance with the provisions of this definition, and
the amount of such Refinancing Indebtedness in excess of the amount of such
Indebtedness (as permitted by this definition) shall not reduce the amount of
Indebtedness permitted by the terms of this Indenture (including, without
limitation, not reducing or counting towards the amounts set forth in such
clauses (a), (b) and (c)).
"Registration Rights Agreement" means the registration rights agreement
made and entered into as of the Issue Date between the Company and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation.
"Regular Record Date" means each January 15 and July 15.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" has the meaning set forth in Section 305.
"Regulation S Debentures" has the meaning set forth in Section 201.
"Regulation S Global Debenture" has the meaning set forth in Section
201.
"Regulation S Permanent Global Debenture" has the meaning set forth in
Section 201.
"Regulation S Temporary Global Debenture" has the meaning set forth in
Section 201.
"Related Business" means the business conducted (or proposed to be
conducted, including the activities referred to as being contemplated by the
Company, as described or referred to in the Offering Memorandum) by the Company
as of the Issue Date and any and all businesses that in the good faith judgment
of the Board of Directors of the Company are reasonably related businesses,
including reasonably related extensions thereof.
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"Related Party" means any partnership or corporation which is managed
by or controlled by LGP or any Affiliate thereof.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the president, any
vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Investment" means, in one or a series of related
transactions, any Investment, other than investments in Cash Equivalents and
other Permitted Investments; provided, however, that a merger of another Person
with or into the Company or a Subsidiary in accordance with the terms of this
Indenture shall not be deemed to be a Restricted Investment so long as the
surviving entity is the Company or a direct wholly owned Subsidiary.
"Restricted Payment" means, with respect to any Person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such Person or any Subsidiary of such Person, (b) any
payment on account of the purchase, redemption or other acquisition or
retirement for value of Equity Interests of such Person or any Subsidiary of
such Person, (c) other than with the proceeds from the substantially concurrent
sale of, or in exchange for, Refinancing Indebtedness, any purchase,
redemption, or other acquisition or retirement for value of, any payment in
respect of any amendment of the terms of or any defeasance of, any Subordinated
Indebtedness, directly or indirectly, by such Person or any Subsidiary of such
Person prior to the scheduled maturity, any scheduled repayment of principal,
or scheduled sinking fund payment, as the case may be, of such Indebtedness,
(d) any Restricted Investment by such Person and (e) any payment provided for
by clause (d) of the definition of "Exempted Affiliate Transaction"; provided,
however, that the term "Restricted Payment" does not include (i) any dividend,
distribution or other payment on or with respect to Equity Interests of the
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Company to the extent payable solely in shares of Qualified Capital Stock of
the Company; (ii) any dividend, distribution or other payment to the Company,
or to any of its Subsidiaries, by the Company or any of its Subsidiaries; (iii)
payments made pursuant to the Transactions; (iv) Permitted Investments; or (v)
pro rata dividends and other distributions on Equity Interests of any
Subsidiary by such Subsidiary.
"restricted period" has the meaning set forth in Section 201.
"Revolving Credit Facility" means the Principal Subsidiary's revolving
credit facility under a credit agreement with Citicorp USA, Inc., as lender or
as administrative agent, up to an amount not exceeding $175,000,000.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Debentures" has the meaning set forth in Section 201.
"Rule 000X Xxxxxx Xxxxxxxxx" has the meaning set forth in Section 201.
"Sale and Leaseback Transaction" means any transaction by which the
Company or a Subsidiary, directly or indirectly, becomes liable as a lessee or
as a guarantor or other surety with respect to any lease of any property
(whether real or personal or mixed), whether now owned or hereafter acquired
that the Company or any Subsidiary has sold or transferred or is to sell or
transfer to any other Person in a substantially concurrent transaction with
such assumption of liability.
"Secondary Debentures" means the Debentures issued pursuant to the
third paragraph of Section 301.
"Senior Discount Debentures" means the 11 5/8% Senior Discount
Debentures due 2009 of the Company.
"Senior Discount Debentures Trustee" means the trustee under the
indenture pursuant to which the Senior Discount Debentures were issued.
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"Senior Indebtedness" of the Company means Indebtedness (including,
without limitation, Post-Commencement Interest and Expense Claims) of the
Company under the Credit Agreement evidencing or governing the Revolving Credit
Facility, the Senior Discount Debentures or that, by the terms of the
instrument creating or evidencing such Indebtedness, is expressly designated
Senior Indebtedness and made senior in right of payment to the Debentures;
provided that in no event shall Senior Indebtedness include (a) Indebtedness to
any Subsidiary of the Company or any officer, director or employee of the
Company or any Subsidiary of the Company, (b) Indebtedness incurred in
violation of the terms of the Indenture, (c) Indebtedness to trade creditors,
and (d) Disqualified Capital Stock.
"Senior Preferred Stock" means the Company's 14 3/4% Senior Redeemable
Exchangeable Cumulative Preferred Stock.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date. "Special
Record Date" for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Debenture means
February 1, 2010.
"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment by its terms or the terms of any document or
instrument or instrument relating thereto to the Debentures, in any respect or
has a final stated maturity after the Stated Maturity.
"Subsidiary," with respect to any Person, means (i) a corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or
by one or more Subsidiaries of such Person, (ii) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination thereof has at least majority
ownership interest, or (iii) a
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partnership in which such Person or a Subsidiary of such Person is, at the
time, a general partner. Notwithstanding the foregoing, an Unrestricted
Subsidiary shall not be a Subsidiary of the Company or of any Subsidiary of the
Company. Unless the context requires otherwise, Subsidiary means each direct
and indirect Subsidiary of the Company.
"Transaction Date" has the meaning set forth in the definition of
"Leverage Ratio."
"Transactions" has the meaning set forth in the Offering Memorandum.
"Transfer Restricted Debentures" means Debentures that bear or are
required to bear the legend set forth in Section 305(g)(i).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any subsidiary of the Company that does
not own any Capital Stock of, or own or hold any Lien on any property of, the
Company or any other Subsidiary of the Company and that, at the time of
determination, shall be an Unrestricted Subsidiary (as designated by the Board
of Directors of the Company); provided, that (i) such subsidiary shall not
engage, to any substantial extent, in any line or lines of business activity
other than a Related Business, (ii) neither immediately prior thereto nor after
giving pro forma effect to such designation would there exist a Default or
Event of Default and (iii) immediately after giving pro forma effect thereto,
the Company could incur at least $1.00 of Indebtedness pursuant to the Debt
Incurrence Ratio of Section 1008. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Subsidiary, provided that (i) no
Default or Event of Default is existing
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or will occur as a consequence thereof and (ii) immediately after giving effect
to such designation, on a pro forma basis, the Company could incur at least
$1.00 of Indebtedness pursuant to the Debt Incurrence Ratio of Section 1008.
Each such designation shall be evidenced by filing with the Trustee a certified
copy of the resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"U.S. Government Obligations" means direct non-callable obligations of,
or noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as it may reasonably request or as
may be required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to
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Section 701) prior to such first solicitation or vote, as the case may be.
With regard to any record date, only the Holders on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
(d) The ownership of Debentures shall be proved by the Debentures
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Debenture.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
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Holder affected by such event, at his address as it appears in the Debenture
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Debentures,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Debentures)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity, as the case may be.
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SECTION 114. No Personal Liability of Partners, Stockholders, Officers,
Directors.
No direct or indirect stockholder, employee, officer or director, as
such, past, present or future of the Company, the Subsidiaries or any successor
entity shall have any personal liability in connection with this Indenture or
the Debentures solely by reason of his or its status as such stockholder,
employee, officer or director. Each Holder of Debentures by accepting a
Debenture waives and releases all such liability, acknowledges and consents to
the transactions described under "The Acquisition" in the Offering Memorandum
and further acknowledges the waiver and release are part of the consideration
for the issuance of the Debentures.
ARTICLE TWO
Debenture Forms
SECTION 201. Forms Generally.
The Debentures (including the Trustee's certificates of authentication)
shall be in substantially the form set forth in Annex A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Debentures,
as evidenced by their execution of the Debentures.
The Definitive Debentures shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Debentures may be listed, all as determined by the
officers executing such Debentures, as evidenced by their execution of such
Debentures.
The Initial Debentures are being exchanged for Senior Preferred Stock
initially offered and sold to qualified institutional buyers in reliance on
Rule 144A ("Rule 144A Debentures") or in offshore transactions in reliance on
Regulation S ("Regulation S Debentures"). The
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Debentures may also be exchanged, pursuant to Section 3(a)(9) under the
Securities Act, for Senior Preferred Stock that has been registered under the
Securities Act pursuant to an Exchange Offer ("Unrestricted Debentures").
Rule 144A Debentures initially will be represented by one or more
Debentures in registered global form without interest coupons (collectively,
the "Rule 000X Xxxxxx Xxxxxxxxx"). The Rule 000X Xxxxxx Xxxxxxxxx will be
deposited upon issuance with the Trustee as custodian for The Depository Trust
Company (the "Depositary"), in New York, New York and registered in the name of
the Depositary or its nominee, in each case for credit to an account of a
direct or indirect participant in the Depositary.
Regulation S Debentures initially will be represented by one or more
temporary Debentures in registered global form without interest coupons
(collectively, the "Regulation S Temporary Global Debenture"). The Regulation
S Temporary Global Debenture will be deposited on behalf of the subscribers
thereof with a custodian for the Depositary. The Regulation S Temporary Global
Debenture will be registered in the name of a nominee of the Depositary for
credit to the subscribers' respective accounts at Euroclear System
("Euroclear") and Cedel Bank, S.A. ("CEDEL"). Beneficial interests in the
Regulation S Temporary Global Debenture may be held only through Euroclear or
CEDEL.
Within a reasonable period of time after the expiration of the
restricted period pursuant to Rule 903 of Regulation S under the Securities Act
(the "restricted period"), the Regulation S Temporary Global Debenture will be
exchanged for one or more permanent Debentures in registered global form
without interest coupons (the "Regulation S Permanent Global Debentures" and,
together with the Regulation S Temporary Global Debenture, the "Regulation S
Global Debenture") upon delivery to the Trustee of certification as provided in
Section 305(f) hereof. During the restricted period, beneficial interests in
the Regulation S Temporary Global Debenture may be held only through Euroclear
or CEDEL (as indirect participants in the Depositary), and, pursuant to the
Depositary's procedures, beneficial interests in the Regulation S Temporary
Global Debenture may not be transferred to a Person that takes delivery thereof
in the form of an interest in the Rule 000X Xxxxxx Xxxxxxxxx. After the
restricted period, (i) beneficial interests in the
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Regulation S Permanent Global Debentures may be transferred to a Person that
takes delivery in the form of an interest in the Rule 000X Xxxxxx Xxxxxxxxx and
(ii) beneficial interests in the Rule 000X Xxxxxx Xxxxxxxxx may be transferred
to a Person that takes delivery in the form of an interest in the Regulation S
Permanent Global Debentures, provided, that the certification requirements
described in Section 305(e) hereof are complied with.
Unrestricted Debentures initially will be represented by one or more
Debentures in registered global form without interest coupons (collectively,
the "Unrestricted Global Debentures"). The Unrestricted Global Debenture will
be deposited with the Trustee as custodian for the Depository in New York, New
York and registered in the name of the Depository or its nominee, in each case
for credit to an account of a direct or indirect participant in the Depository.
ARTICLE THREE
The Debentures
SECTION 301. Title and Terms.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is limited to the aggregate liquidation
preference and accrued dividends on any Senior Preferred Stock for which the
Debentures are exchanged, except for Debentures authenticated and delivered as
Secondary Debentures pursuant to the following paragraph and Debentures
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Debentures pursuant to Section 304, 305, 306, 906 or
1108 or in connection with an Asset Sale Offer or Change of Control Offer
pursuant to Sections 1013 or 1015.
The Debentures shall be known and designated as the "14 3/4% Senior
Subordinated Debentures due 2010" of the Company. Their Stated Maturity shall
be February 1, 2010 and they shall bear interest at 14 3/4% from the Exchange
Date or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable semi-annually on
February 1 and August 1, commencing the earlier of the first February 1 or
August 1
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immediately following the Exchange Date, until the principal thereof is paid or
made available for payment.
On each Interest Payment Date, the Company may, at its option, in lieu
of the payment in cash of any portion of interest due and payable on such
Interest Payment Date, by giving notice to the Holders and the Trustee not less
than 15 nor more than 45 days prior to the Regular Record Date for such
Interest Payment Date, execute, and deliver to the Trustee for authentication,
together with a Company Order given not less than 15 nor more than 45 days
prior to such Interest Payment Date for the authentication and delivery of
additional Debentures in an aggregate principal amount equal to such portion of
interest; and the Trustee in accordance with such Company Order shall
authenticate and deliver to the Holders of record on such Regular Record Date
such additional Debentures requested in such Company Order (such duly executed
and authenticated additional Debentures being of the same series as the
Debentures and referred to herein as "Secondary Debentures"), and the due
issuance of such Secondary Debentures shall constitute full payment of such
portion of interest; provided, however, that interest shall not so be payable
in whole or part in Secondary Debentures in lieu of cash from and after the
date of any deposit of money pursuant to Section 401 or the defeasance or
covenant defeasance of the Debentures pursuant to Article Twelve; and provided
further, however, that, in lieu of the issuance of any Secondary Debentures (x)
the principal amount of which would be less than $1,000 or (y) would exceed the
largest integral multiple of $1,000 which is less than or equal to such
principal amount (in each case, a "Fractional Secondary Debenture"), the
Company shall, in the case of Clause (y), issue a Secondary Debenture with a
principal amount equal to such largest integral multiple and shall, in the case
of Clauses (x) and (y), in its sole discretion, either (1) on behalf of and for
the accounts of all Holders of Debentures who would be entitled to Fractional
Secondary Debentures, aggregate all such Fractional Secondary Debentures and,
on or before the tenth Business Day following the applicable Interest Payment
Date, sell such aggregated Fractional Secondary Debentures and, within six
Business Days of such sale, pay each such Holder his proportionate share of the
net proceeds of such sale, or (2) pay (on the applicable Interest Payment Date)
each such Holder, with respect to any Fractional Secondary Debenture
that such Holder would otherwise be entitled to receive, an amount in cash
equal to the average closing price per $1,000 principal amount of Debentures
for the ten trading days preceding the Business Day immediately preceding the
applicable Interest Payment Date multiplied by a fraction, the numerator of
which is the principal amount of such Fractional Secondary Debenture
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otherwise issuable to such Holder and the denominator of which is $1,000. Each
issuance of Secondary Debentures in lieu of the payment in cash of all or any
portion of interest on the Debentures shall be made pro rata with respect to
the Outstanding Debentures. All Secondary Debentures shall be issued in the
same series as the Debentures originally issued pursuant to the Indenture, and
all Holders of Secondary Debentures shall be treated as Holders of Debentures
for any and all purposes of any Act of Holders or of other action of Holders or
otherwise pursuant to this Indenture except as may otherwise be required by
law. Any such Secondary Debentures shall be governed by the Indenture and the
terms of each such Secondary Debenture shall be identical to the terms of this
Debenture except with respect to, as the case may be, the designation of such
Secondary Debenture (which may (but need not) indicate the Interest Payment
Date of its original issuance), its aggregate principal amount, its CUSIP
number or other required identifications, any required legends (including with
respect to taxation) and the date from which interest accrues and except as may
otherwise be required by law. Notwithstanding the foregoing, Secondary
Debentures may be issued on any given Interest Payment Date in separate series
if such is required pursuant to a change in law after the date hereof, and, in
such event, the Holders of designated Debentures shall continue to be treated
in all respects as Holders of Debentures for all purposes of this Indenture
(including with respect to any Act of Holders or any other action of Holders or
otherwise pursuant to this Indenture) except as required by such change in law.
The principal of (and premium, if any) and interest (and Liquidated
Damages, if any) on the Debentures shall be payable at the office or agency of
the Company in the Borough of Manhattan, The City of New York maintained for
such purpose and at any other office or agency maintained by the Company for
such purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Debenture Register.
The Debentures shall be subject to repurchase by the Company pursuant
to an Asset Sale Offer or Change of Control Offer, respectively, as provided in
Sections 1013 and 1015.
The Debentures shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
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SECTION 302. Denominations.
The Debentures shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debentures shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, and
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debentures; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Debentures as in
this Indenture provided and not otherwise.
Each Debenture shall be dated the date of its authentication (except as
may be otherwise provided herein with respect to Secondary Debentures).
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and delivered hereunder.
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SECTION 304. Temporary Debentures.
Pending the preparation of Definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will cause Definitive
Debentures to be prepared without unreasonable delay. After the preparation of
Definitive Debentures, the temporary Debentures shall be exchangeable for
Definitive Debentures upon surrender of the temporary Debentures at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Debentures the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Debentures
of authorized denominations. Until so exchanged the temporary Debentures shall
in all respects be entitled to the same benefits under this Indenture as
Definitive Debentures.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Debenture Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Trustee is
hereby appointed "Debenture Registrar" for the purpose of registering
Debentures and transfers of Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and upon receipt of a Company Order, the
Trustee
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shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Debentures of any authorized denominations and of
a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and upon receipt of a Company Order, the Trustee shall
authenticate and deliver, the Debentures which the Holder making the exchange
is entitled to receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligation of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
(a) Transfer and Exchange of Definitive Debentures. When Definitive
Debentures are presented to the Debenture Registrar with a request (x) to
register the transfer of such Definitive Debentures or (y) to exchange such
Definitive Debentures for an equal principal amount of Definitive Debentures of
other authorized denominations, the Debenture Registrar shall register the
transfer or make the exchange as requested if its reasonable requirements for
such transaction are met; provided, however, that the Definitive Debentures
surrendered for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Debenture Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted Debentures that are
Definitive Debentures, shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Transfer Restricted Debenture is being delivered
to the Debenture Registrar by a Holder for registration in the name of
such
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Holder, without transfer, a certification from such Holder to that
effect (in substantially the form set forth on the reverse of the
Debenture); or
(B) if such Transfer Restricted Debenture is being transferred
to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) that is aware that any sale of Debentures to it
will be made in reliance on Rule 144A under the Securities Act and
that is acquiring such Transfer Restricted Debenture for its own
account or for the account of another such "qualified institutional
buyer," a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Debenture);
or
(C) if such Transfer Restricted Debenture is being
transferred pursuant to an exemption from registration in
accordance with Rule 144, or outside the United States in an
offshore transaction in compliance with Rule 904 under the
Securities Act, or pursuant to an effective registration statement
under the Securities Act, a certification from such Holder to that
effect (in substantially the form set forth on the reverse of the
Debenture); or
(D) if such Transfer Restricted Debenture is being transferred
in reliance on another exemption from the registration requirements
of the Securities Act and with all applicable securities laws of
the States of the United States, a certification from such Holder
to that effect (in substantially the form set forth on the reverse
of the Debenture) and an Opinion of Counsel from the Holder
reasonably acceptable to the Company, the Trustee, and to the
Debenture Registrar to the effect that such transfer is in
compliance with the Securities Act.
(b) Restrictions on Transfer of a Definitive Debenture for a
Beneficial Interest in a Global Debenture. A Definitive Debenture may not be
exchanged for a beneficial interest in a Global Debenture except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee
of a Definitive Debenture, duly endorsed or
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accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with:
(i) if such Definitive Debenture is a Transfer Restricted Debenture,
certification, in substantially the form set forth on the reverse of the
Debenture, that such Definitive Debenture is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act;
and
(ii) whether or not such Definitive Debenture is a Transfer
Restricted Debenture, written instructions directing the Trustee to make,
or to direct the Debentures Custodian to make, an endorsement on the
Global Debenture to reflect an increase in the aggregate principal amount
of the Debentures represented by the Global Debenture,
then the Trustee shall cancel such Definitive Debenture and cause, or direct
the Debentures Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Debentures Custodian,
the aggregate principal amount of Debentures represented by the Global
Debenture to be increased accordingly. If no Global Debentures are then
outstanding, the Company shall issue and upon receipt of a Company Order the
Trustee shall authenticate a new Global Debenture in the appropriate principal
amount.
(c) Transfer and Exchange of Global Debentures. The transfer and
exchange of Global Debentures or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. Except as set forth in clause (d) through (f), a Global
Debenture may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
(d) Transfer of a Beneficial Interest in a Global Debenture for a
Definitive Debenture.
(i) A Global Debenture is exchangeable for
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Definitive Debentures in registered certificated form if (A) the
Depositary (x) notifies the Company that it is unwilling or unable to
continue as depositary for the Global Debenture and the Company thereupon
fails to appoint a successor depositary or (y) has ceased to be a
clearing agency registered under the Exchange Act, (B) the Company, at
its option, notifies the Trustee in writing that it elects to cause the
issuance of the Debentures in certificated form or (C) there shall have
occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default with respect
to the Debentures. In all cases, Definitive Debentures delivered in
exchange for any Global Debenture or beneficial interests therein will be
registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depositary (in accordance with its
customary procedures) and will bear the applicable restrictive legend,
unless the Company determines otherwise in compliance with applicable
law.
(ii) Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Debenture, and upon receipt by the Trustee of a
written instruction or such other form of instructions as is customary
for the Depositary or the Person designated by the Depositary as having
such a beneficial interest in a Transfer Restricted Debenture only, the
following additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner,
a certification from the transferor to that effect (in
substantially the form set forth on the reverse of the Debenture);
or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) that is aware that any sale of Debentures to it
will be made in reliance on Rule 144A under the Securities Act and
that is acquiring such beneficial interest in the Transfer
Restricted Debenture for its own account or the
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account of another such "qualified institutional buyer", a
certification to that effect from the transferor (in substantially
the form set forth on the reverse of the Debenture); or
(C) if such beneficial interest is being transferred pursuant
to an exemption from registration in accordance with Rule 144, or
outside the United States in an offshore transaction in compliance
with Rule 904 under the Securities Act, or pursuant to an effective
registration statement under the Securities Act, a certification
from the transferor to that effect (in substantially the form set
forth on the reverse of the Debenture); or
(D) if such beneficial interest in being transferred in
reliance on another exemption from the registration requirements of
the Securities Act and in accordance with all applicable securities
laws of the States of the United States, a certification to that
effect from the transferor (in substantially the form set forth on
the reverse of the Debenture) and an Opinion of Counsel from the
transferee or transferor reasonably acceptable to the Company and
to the Debenture Registrar to the effect that such transfer is in
compliance with the Securities Act,
then the Trustee shall cause, or direct the Debentures Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Debentures Custodian, the aggregate principal amount of the
Global Debenture to be reduced accordingly and, following such reduction, the
Company will execute and, upon receipt of a Company Order, the Trustee will
authenticate and deliver to the transferee a Definitive Debenture in the
appropriate principal amount.
(e) Exchanges between Regulation S Debentures and Rule 144A
Debentures. Prior to the expiration of the restricted period, beneficial
interests in the Regulation S Temporary Global Debenture may not be transferred
to a Person who takes delivery in the form of an interest in a Rule 000X Xxxxxx
Xxxxxxxxx. After the expiration of the restricted period, beneficial interests
in Regulation S Permanent Global Debentures may be transferred to a Person
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who takes delivery in the form of an interest in a Rule 144A Global Debenture.
Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest in the Regulation
S Global Debenture, then the Trustee shall cause, or direct the Debentures
Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Debentures Custodian, the aggregate
principal amount of the Regulation S Global Debenture to be decreased and the
aggregate principal amount of the Rule 000X Xxxxxx Xxxxxxxxx to be increased by
the principal amount of the beneficial interest in the Regulation S Global
Debenture to be exchanged, to credit, or cause to be credited, to the account
of the transferor a beneficial interest in the Rule 000X Xxxxxx Xxxxxxxxx equal
to the reduction in the aggregate principal amount of the Regulation S Global
Debenture, and to debit, or cause to be debited, from the account of the
transferor the beneficial interest in the Regulation S Global Debenture that is
being exchanged or transferred.
Prior to the expiration of the restricted period, beneficial interests
in the Rule 000X Xxxxxx Xxxxxxxxx may not be transferred to any Person that
takes delivery thereof in the form of an interest in the Regulation S Temporary
Global Debenture. After the expiration of the restricted period, beneficial
interests in the Rule 000X Xxxxxx Xxxxxxxxx may be transferred to a Person who
takes delivery in the form of an interest in the Regulation S Permanent Global
Debenture only upon receipt by the Trustee of a written certification from the
transferor to the effect that such transfer is being made in accordance with
Rule 904 of Regulation S. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any Person having a beneficial interest
in the Rule 000X Xxxxxx Xxxxxxxxx, then the Trustee shall cause, or direct the
Debentures Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Debentures Custodian, the
aggregate principal amount of the Rule 000X Xxxxxx Xxxxxxxxx to be decreased
and the aggregate principal amount of the Regulation S Global Debenture to be
increased by the principal amount of the beneficial interest in the Rule 000X
Xxxxxx Xxxxxxxxx to be exchanged, to credit, or cause to be credited, to the
account of the transferor a beneficial interest in the Regulation S Global
Debenture
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equal to the reduction in the aggregate principal amount of the Rule 000X
Xxxxxx Xxxxxxxxx, and to debit, or cause to be debited, from the account of the
transferor the beneficial interest in the Rule 000X Xxxxxx Xxxxxxxxx that is
being exchanged or transferred.
(f) Restrictions on Transfer and Exchange of Regulation S
Temporary Global Debentures. A holder of a beneficial interest in a Regulation
S Temporary Global Debenture must provide Euroclear or CEDEL, as the case may
be, with a certificate in the form set forth in Annex B certifying that the
beneficial owner of the interest in the Regulation S Temporary Global Debenture
is either not a U.S. Person (as defined below) or has purchased such interest
in a transaction that is exempt from the registration requirements under the
Securities Act (the "Regulation S Certificate"), and Euroclear or CEDEL, as the
case may be, must provide to the Trustee (or to the Paying Agent if other than
the Trustee) a certificate in the form set forth in Annex B prior to (i) the
payment of interest or principal with respect to such holder of beneficial
interests in the Regulation S Temporary Global Debenture and (ii) any exchange
of such beneficial interest for a beneficial interest in a Regulation S
Permanent Global Debenture. "U.S. Person" means (i) any individual resident in
the United States, (ii) any partnership or corporation organized or
incorporated under the laws of the United States, (iii) any estate of which an
executor or administrator is a U.S. Person (other than an estate governed by
foreign law and of which at least one executor or administrator is a non-U.S.
Person who has sole or shared investment discretion with respect to its
asset(s)), (iv) any trust of which any trustee is a U.S. Person (other than a
trust of which at least one trustee is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets and no beneficiary of the
trust (and no settlor if the trust is revocable) is a U.S. Person), (v) any
agency or branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. Person, (vii)
any discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States (other than such an account held for the benefit
or account of a non-U.S. Person), (viii) any partnership or corporation
organized or incorporated under the laws of a foreign jurisdiction and formed
by a U.S. Person principally for the purpose of
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investing in securities not registered under the Securities Act (unless it is
organized or incorporated and owned, by accredited investors within the meaning
of Rule 501 (a) under the Securities Act who are not natural Persons, estates
or trusts); provided, however, that the term "U.S. Person" shall not include
(A) a branch or agency of a U.S. Person that is located and operating outside
the United States for valid business purposes as a locally regulated branch or
agency engaged in the banking or insurance business, (B) any employee benefit
plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
(g) Legends.
(i) Except as permitted by the following paragraphs (iv) and (v),
each Debenture certificate evidencing the Global Debentures and the
Definitive Debentures (and all Debentures issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form:
THE DEBENTURES (OR THEIR PREDECESSORS) EVIDENCED HEREBY WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
DEBENTURES EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE DEBENTURES EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE DEBENTURES
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH DEBENTURES
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (a) INSIDE THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO THE
COMPANY, (e) PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT OR (f) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS) AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE DEBENTURES EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
(ii) Except as permitted by the following paragraphs (iii), (iv) and
(v), each Regulation S Temporary Global Debenture (and all Debentures issued in
exchange therefor or substitution thereof) shall bear a legend in substantially
the form set forth in the form of Debenture attached to this Indenture.
(iii) Except as permitted by the following paragraphs (iv) and (v),
each Regulation S Permanent Global Debenture (and all Debentures issued in
exchange therefor or substitution thereof) shall bear a legend in substantially
the form set forth in the form of Debenture attached to this Indenture.
(iv) Upon any sale or transfer of a Transfer Restricted Debenture
(including any Transfer Restricted Debenture represented by a Global
Debenture) pursuant to Rule 144 under the Act or an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Debenture, the
Debenture Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Debenture for a Definitive Debenture that
does not bear the legend set forth in (i), (ii) or (iii) above and
rescind any restriction on the transfer of such Transfer Restricted
Debenture; and
(B) any such Transfer Restricted Debenture represented by a
Global Debenture shall not be subject to the provisions set forth
in (i), (ii) or (iii) above (such sales or transfers being subject
only to the provisions of Section 305(c) hereof); provided,
however, that with respect to any request for an exchange of a
Transfer Restricted Debenture that is represented by a Global
Debenture for a Definitive Debenture that
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does not bear a legend, which request is made in reliance upon Rule
144, the Holder thereof shall certify in writing to the Debenture
Registrar that such request is being made pursuant to Rule 144
(such certification to be in substantially the form set forth on
the reverse of the Debenture).
(v) Any Exchange Debentures issued in connection with the
Exchange Offer or Unrestricted Debentures issued in exchange for registered
Senior Preferred Stock pursuant to Section 3(a)(9) under the Securities Act
shall not bear the legend set forth in (i), (ii) or (iii) above and the Trustee
shall rescind any restriction on the transfer of such Exchange Debentures or
Unrestricted Debentures.
(h) Cancellation and/or Adjustment of Global Debenture. At such
time as all beneficial interests in a Global Debenture have either been
exchanged for Definitive Debentures or beneficial interests in other Global
Debentures, redeemed, repurchased or canceled, such Global Debenture shall be
returned to or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Debenture is exchanged for
Definitive Debentures or a beneficial interest in another Global Debenture,
redeemed, repurchased or canceled, the principal amount of Debentures
represented by such Global Debenture shall be reduced and an endorsement shall
be made on such Global Debenture, by the Trustee or the Debentures Custodian,
at the direction of the Trustee, to reflect such reduction.
(i) Obligations with respect to Transfers and Exchanges of Definitive
Debentures. To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Debentures and
Global Debentures at the Debenture Registrar's request.
(j) General. No service charge shall be made for any registration
of transfer or exchange of Debentures, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Debentures, other than exchanges pursuant to Section 304, 906 or 1108 or in
accordance with any Asset Sale Offer or Change of Control Offer pursuant to
Section 1013 or 1015 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange any Debenture during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Debentures selected for redemption under Section 1104 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Debenture so selected for redemption in whole or in part, except
the unredeemed portion of any Debenture being redeemed in part.
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 Debenture (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Debenture) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements thereof.
Prior to due presentment for the registration of a transfer of any
Debenture, the Trustee and the Company may deem and treat the Person in whose
name any Debenture is registered as the absolute power of such Debenture for
all purposes, and none of the Trustee or the Company shall be affected by
notice to the contrary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Debenture of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Debenture and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the
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Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable in cash, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date immediately
preceding such Interest Payment Date.
Any interest on any Debenture which is payable in cash, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been
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such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Debenture and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Debenture Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, if, after
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notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest (and Liquidated Damages, if any) on
such Debenture and for all other purposes whatsoever, whether or not such
Debenture be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Debentures surrendered for payment, redemption, registration of
transfer or exchange or any Asset Sale Offer or Change of Control Offer
pursuant to Section 1013 or 1015 shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Debentures previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debentures so delivered
shall be promptly canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures held by the Trustee shall be disposed of as directed by a Company
Order.
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SECTION 310. Computation of Interest.
Interest on the Debentures shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Debentures herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debentures theretofore authenticated and delivered (other
than (i) Debentures which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Debentures for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Debentures not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited
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with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Debentures not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest (and
Liquidated Damages, if any) to the date of such deposit (in the
case of Debentures which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Debentures and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the failure by the Company to pay any installment of interest
(or Liquidated Damages, if any) on the Debentures as and when the same
becomes due and payable and the continuance of any such failure for 30
days;
(2) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Debentures when and as the same
becomes due and payable at maturity, redemption, by acceleration or
otherwise, including, without limitation, payment of the Change of
Control Purchase Price or the Asset Sale Offer Price, or otherwise;
(3) the failure by the Company or any Subsidiary of the Company to
observe or perform any other covenant or agreement contained in the
Debentures or the Indenture and the continuance of such failure for a
period of 30 days after written notice is given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Debentures outstanding, specifying
such Default;
(4) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Significant
Subsidiary of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
such Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the
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Company or any such Subsidiary under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Subsidiary or of any substantial part of the property of the Company or
any such Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any such Subsidiary, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
(5) the commencement by the Company or any Significant Subsidiary
of the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any such Subsidiary to the
entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Subsidiary of the Company, or the filing by the Company or any such
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by the
Company or any such Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary of the Company or of any substantial part of the
property of the Company or any Significant Subsidiary of the Company, or
the making by the Company or any Significant Subsidiary of the Company of
an assignment for the benefit of creditors, or the admission by the
Company or any such Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company or any such Subsidiary in furtherance of any such action;
(6) a default in any Indebtedness of the Company or its
Subsidiaries, with an aggregate principal in excess of $15 million (a)
resulting from the failure to
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pay principal at maturity or (b) as a result of which the maturity of
such Indebtedness has been accelerated prior to its stated maturity; or
(7) a final unsatisfied judgment or final unsatisfied judgments not
covered by insurance for the payment of money are entered against the
Company or any Subsidiary of the Company in an aggregate amount in excess
of $15 million by a court or courts of competent jurisdiction, which
judgments remain unstayed, undischarged or unbonded for a period (during
which execution shall not be effectively stayed) of 60 days.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(4) or (5)) occurs and is continuing, then and in every such case
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Debentures may declare all the Debentures to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders). If an Event of Default specified in Section
501(4) or (5) occurs, the Debentures then Outstanding will be immediately due
and payable without any declaration or other Act on the part of the Trustee or
any Holder.
Upon any acceleration of maturity of the Debentures, all principal of
and accrued interest and Liquidated Damages on the Debentures shall be due and
payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Debentures, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if the Company has paid or deposited with the Trustee a sum
sufficient to pay and except on default with respect to any provision requiring
a supermajority approval to amend, which may only be waived by such
supermajority, all existing Events of Default, other than the non-payment
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of the principal of, premium, if any, and interest (and Liquidated Damages, if
any) on the Debentures which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest (and Liquidated
Damages, if any) on any Debenture when such interest (and Liquidated
Damages, if any) becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Debenture at the Maturity thereof or, with respect to any
Debenture required to have been purchased pursuant to an Asset Sale Offer
or Change of Control Offer made by the Company, at the Purchase Date
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debentures, the whole amount then due and payable on such
Debentures for principal (and premium, if any) and interest (and Liquidated
Damages, if any), and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any)
and on any overdue interest and Liquidated Damages, at the rate provided by the
Debentures, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Debentures and collect the
moneys adjudged
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or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon the Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Debentures), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest (or Liquidated Damages, if any), upon presentation of the
Debentures and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest (and Liquidated Damages,
if any) on the Debentures in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debentures for
principal (and premium, if any) and interest (and Liquidated Damages, if
any), respectively.
SECTION 507. Limitation on Suits.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a
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receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest (and Liquidated Damages, if any) on such Debenture on the
respective Stated Maturities expressed in such Debenture (or, in the case of
redemption, on the Redemption Date or in the case of an Asset Sale Offer or
Change of Control Offer made by the Company and required to
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be accepted as to such Debenture, on the Purchase Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debenture
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debentures may on behalf of the Holders of all the
Debentures waive any past Default hereunder and its consequences, except a
default with respect to any provision requiring a supermajority to amend, which
default may only be waived by such a supermajority, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest (or Liquidated Damages, if any) on any Debenture (including any
Debenture which is required to have been purchased pursuant to an Asset
Sale Offer or Change of Control Offer which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debenture affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the
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conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any Default hereunder, to
the extent it has knowledge of such Default as and to the extent provided by
the Trust Indenture Act. The term "Default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any
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action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or
Issuance of Debentures.
The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee shall not be accountable for the
use or application by the Company of the Debentures or the proceeds thereof.
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SECTION 605. May Hold Debentures.
The Trustee, any Paying Agent, any Debenture Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debentures and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Debenture Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending
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itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and a Corporate Trust
Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Debentures, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Debenture for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Debentures
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a
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bona fide Holder of a Debenture for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in
the manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor
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of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Debentures shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Debentures
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Debentures.
SECTION 613. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, commencing the first Regular Record Date immediately
following the Exchange Date, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Debenture Registrar.
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SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Debenture
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Debentures are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Debentures are listed on any stock exchange.
SECTION 704. Reports by Company.
Whether or not the Company is subject to the reporting requirement of
Section 13 or 15(d) of the Exchange Act, the Company shall deliver to the
Trustee and to each
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Holder and to prospective purchasers of Debentures identified to the Company by
a Holder within 15 days after it is or would have been (if it were subject to
such reporting obligations) required to file such with the Commission, annual
and quarterly financial statements substantially equivalent to financial
statements that would have been included in reports filed with the Commission,
if the Company were subject to the requirements of Section 13 or 15(d) of the
Exchange Act, including, with respect to annual information only, a report
thereon by the Company's certified independent public accountants as such would
be required in such reports to the Commission, and, in each case, together with
a management's discussion and analysis of financial condition and results of
operations which would be so required and, unless the Commission will not
accept such reports, file with the Commission the annual, quarterly and other
reports which it is or would have been required to file with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Limitation on Merger, Sale
or Consolidation.
The Company shall not consolidate with or merge with or into another
Person or, directly or indirectly, sell, lease, convey or transfer all or
substantially all of its assets (computed on a consolidated basis), whether in
a single transaction or a series of related transactions, to another Person or
group of affiliated Persons or adopt a plan of liquidation, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity or, in the case of a plan of
liquidation, the entity which receives the greatest value from such plan
of liquidation is a corporation organized under the laws of the United
States, any state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of the Company
in connection with the Debentures and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
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(3) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the consolidated, resulting,
surviving or transferee entity or, in the case of a plan of liquidation,
the entity which receives the greatest value from such plan of
liquidation is at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction; and
(4) immediately after giving effect to such transaction on a pro
forma basis, the consolidated, resulting, surviving or transferee entity
or, in the case of a plan of liquidation, the entity which receives the
greatest value from such plan of liquidation would immediately thereafter
be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Debt Incurrence Ratio set forth in Section 1008.
SECTION 802. Successor Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or consummation of a plan of
liquidation in accordance with the foregoing, the successor corporation formed
by such consolidation or into which the Company is merged or to which such
transfer is made or, in the case of a plan of liquidation, the entity which
receives the greatest value from such plan of liquidation shall succeed to and
(except in the case of a lease) be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor corporation had been named therein as the Company, and (except
in the case of a lease) the Company shall be released from the obligations
under the Debentures and the Indenture except with respect to any obligations
that arise from, or are related to, such transaction.
SECTION 803. Transfer of Subsidiary Assets.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of all or substantially all of the properties and assets of one
or more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or
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substantially all of the properties and assets of the Company.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Debentures; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Debentures pursuant to the requirements of Section
1011 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act;
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided such action pursuant to this clause (5) shall
not adversely affect the interests of the Holders in any material
respect;
(6) prior to the Exchange Date, to evidence any modification to the
Indenture governing the Senior Discount Debentures approved by the
holders of the
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Senior Discount Debentures that does not require the consent of holders
of Senior Preferred Stock; or
(7) prior to the Exchange Date, to evidence any modification to the
Indenture approved by the holders of the Senior Preferred Stock.
SECTION 902. Supplemental Indentures with Consent
of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debentures, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of amending or supplementing
this Indenture or any supplemental indenture or modifying the rights of the
Holders; provided, however, that no such modification may, without the consent
of Holders of at least 66 2/3% in aggregate principal amount of Debentures at
the time outstanding, modify the provisions or subordinate provisions of the
Indenture(including the defined terms used therein) of Section 1015 in a manner
adverse to the Holders; and provided that no such modification may, without the
consent of each Holder thereby:
(1) change the Stated Maturity on any Debenture, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption at the option
of the Company thereof, or change the place of payment where, or the coin
or currency in which, any Debenture or any premium or interest (or
Liquidated Damages, if any) thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption at the option of
the Company, on or after the Redemption Date), or reduce the Change of
Control Purchase Price or the Asset Sale Offer Price of alter the
provisions (including the defined terms used therein) regarding the right
of the Company to redeem the Debentures at its option in a manner adverse
to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Debentures, the consent of whose
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Holders is required for any such amendment, supplemental indenture or
waiver provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1019 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debenture affected
thereby.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Debentures theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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SECTION 906. Reference in Debentures to Supplemental Indentures.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Debentures so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium,
if any) and any interest (and Liquidated Damages, if any) on the Debentures in
accordance with the terms of the Debentures and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Debentures may be presented or surrendered for
payment, where Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Debentures may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 1003. Money for Debenture Payments to be
Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or
interest (and Liquidated Damages, if any) on any of the Debentures, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest (and
Liquidated Damages, if any) so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest
(and Liquidated Damages, if any) on any Debentures, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest (and
Liquidated Damages, if any) so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium, interest or
Liquidated Damages, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest (and Liquidated Damages, if any) on
Debentures in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any Default by the Company (or any
other obligor upon the Debentures) in the making of any payment of
principal (and premium, if any) or interest (and Liquidated Damages, if
any); and
(3) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest (and Liquidated Damages, if any) on any Debenture and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Debenture shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than
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30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight and Section 1013, the Company and its
Subsidiaries will do or cause to be done all things necessary to preserve and
keep in full force and effect their existence, rights (charter and statutory)
and franchises; provided, however, that the Company and its Subsidiaries shall
not be required to preserve any such right or franchise if the Board of
Directors in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company or its
Subsidiaries and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary of the Company to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor,
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materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature insured against
loss or damage with insurers believed by the Company to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 1008. Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital
Stock.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, issue, assume, guaranty, incur, become directly or
indirectly liable with respect to (including as a result of an Acquisition) or
otherwise become responsible for, contingently or otherwise (individually and
collectively, to "incur" or, as appropriate an "incurrence"), any
Indebtedness(including Acquired Indebtedness) other than Permitted
Indebtedness.
Notwithstanding the foregoing, if (i) no Default or Event of Default
shall have occurred and be continuing at the time of, or would occur after
giving effect on a pro forma basis to, such incurrence of Indebtedness or
Disqualified Capital Stock and (ii) on the date of such incurrence (the
"Incurrence Date"), after giving effect on a pro forma basis to such incurrence
of such Indebtedness or Disqualified Capital Stock and the use of proceeds
thereof, the Leverage Ratio shall not exceed 7.5 to 1 (the "Debt Incurrence
Ratio"), then the Company and its Subsidiaries may incur such Indebtedness or
Disqualified Capital Stock.
In addition, the foregoing limitations will not apply to:
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(a) the incurrence by the Company or any of its Subsidiaries of
Purchase Money Indebtedness on or after the Issue Date, provided, that
(i) the aggregate principal amount of such Indebtedness incurred on or
after the Issue Date and outstanding at any time pursuant to this
paragraph (a) (including any Indebtedness issued to refinance, replace or
refund such Indebtedness) shall not exceed $15.0 million, and (ii) in
each case, such Indebtedness as originally incurred shall not constitute
more than 100% of the cost (determined in accordance with GAAP) to the
Company or such Subsidiary, as applicable, of the property so purchased
or leased;
(b) the incurrence by the Company or any Subsidiary of Indebtedness
in an aggregate principal amount outstanding at any time (including
Indebtedness incurred to refinance, replace, or refund such Indebtedness)
of up to $10.0 million (which may be incurred pursuant to the Credit
Agreement); and
(c) the incurrence by the Company or any Subsidiary of Indebtedness
pursuant to the Credit Agreement up to an aggregate principal amount
outstanding at any time (including any Indebtedness incurred to
refinance, replace or refund such Indebtedness) of $175.0 million, minus
the amount of any such Indebtedness retired with the Net Cash Proceeds
from any Asset Sale or assumed by a transferee in an Asset Sale.
Indebtedness or Disqualified Capital Stock of any Person which is
outstanding at the time such Person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other Person as a Subsidiary)
or is merged with or into or consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Subsidiary of the Company, as applicable.
Notwithstanding anything to the contrary contained in this Indenture,
the Company shall not, and shall not permit any of its Subsidiaries to, incur
any Indebtedness that is contractually subordinate to any other Indebtedness of
the Company unless such Indebtedness is at least as subordinate to the
Debentures.
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SECTION 1009. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, make any Restricted Payment if, after giving effect to
such Restricted Payment on a pro forma basis:
(1) a Default or an Event of Default shall have occurred and be
continuing,
(2) The Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio in Section
1008, or
(3) The aggregate amount of all Restricted Payments made by the
Company and its Subsidiaries, including after giving effect to such
proposed Restricted Payment, from and after the Issue Date, would exceed
the sum of:
(a) (i) Consolidated EBITDA of the Company for the period (taken
as one accounting period), commencing on the first day of the
first fiscal quarter commencing on or prior to the Issue Date,
to and including the last day of the fiscal quarter ended
immediately prior to the date of each such calculation (or, in
the event Consolidated EBITDA for such period is a deficit,
then minus 100% of such deficit) less (ii) 150% of
Consolidated Fixed Charges for such period, plus
(b) the aggregate Net Cash Proceeds received by the Company from
the sale of the Company's Qualified Capital Stock (other than
in each case (i) to a Subsidiary of the Company, (ii) to the
extent applied in connection with a Qualified Exchange and
(iii) to the extent applied to repurchase Capital Stock
pursuant to clause (b) of the definition of Permitted
Payments) after the Issue Date.
The provisions of the immediately preceding paragraph will not
prohibit or be violated by reason of (A) a Qualified Exchange; (B) the payment
or making of any Restricted Payment within 60 days after the date of
declaration thereof or the making of any binding commitment
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in respect thereof, if at said date of declaration or commitment, such
Restricted Payment would have complied with the provisions contained in clauses
(1), (2) and (3) of the immediately preceding paragraph; and (C) Permitted
Payments. The full amount of any Restricted Payment made pursuant to the
foregoing clause (B) (but not pursuant to clauses (A) or (C)) of the
immediately preceding sentence, however, will be deducted in the calculation of
the aggregate amount of Restricted Payments available to be made referred to in
clause (3) of the immediately preceding paragraph.
For purposes of this covenant, the amount of any Restricted Payment,
if other than in cash, shall be the fair market value thereof, as determined in
the good faith reasonable judgment of the Board of Directors of the Company.
SECTION 1010. Limitations on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Company to pay dividends or
make other distributions to or on behalf of, or to pay any obligation to or on
behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Company or any Subsidiary
of the Company, except:
(a) restrictions imposed by the Debentures or this Indenture or by
other Indebtedness of the Company ranking pari passu with the Debentures,
provided such restrictions are not materially more restrictive than those
imposed by this Indenture and the Debentures,
(b) restrictions imposed by applicable law,
(c) existing restrictions under Indebtedness outstanding on the
Issue Date,
(d) restrictions under any Acquired Indebtedness not incurred in
violation of this Indenture or any agreement relating to any property,
asset, or business acquired by the Company or any of its Subsidiaries,
which restrictions in each case existed at the time of
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Acquisition, were not put in place in connection with or in anticipation
of such Acquisition and are not applicable to any Person, other than the
Person acquired, or to any property, asset or business, other than the
property, assets and business so acquired,
(e) any such restriction or requirement imposed by Indebtedness
incurred under the Credit Agreement in accordance with this Indenture,
provided such restriction or requirement is not materially more
restrictive than that imposed by the Revolving Credit Facility as of the
Issue Date,
(f) restrictions with respect solely to a Subsidiary of the Company
imposed pursuant to a binding agreement which has been entered into for
the sale or disposition of all or substantially all of the Equity
Interests or assets of such Subsidiary, provided such restrictions apply
solely to the Equity Interests or assets of such Subsidiary which are
being sold,
(g) restrictions on transfer contained in Purchase Money
Indebtedness incurred pursuant to paragraph (a) of Section 1008, provided
such restrictions relate only to the transfer of the property acquired
with the proceeds of such Purchase Money Indebtedness, and
(h) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (a), (c), (d),
(e), or (g) of this section that are not materially more restrictive than
those being replaced and do not apply to any other Person or assets than
those that would have been covered by the restrictions in the
Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions
restricting subletting or assignment of any lease entered into in the ordinary
course of business, consistent with industry practice, nor (b) Liens permitted
under the terms of this Indenture shall in and of themselves be considered a
restriction on the ability of the applicable Subsidiary to transfer such
agreement or assets, as the case may be.
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SECTION 1011. Limitation on Liens Securing Indebtedness.
The Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist, to secure any Indebtedness, any Lien
of any kind, other than Permitted Liens, upon any of its respective assets now
owned or acquired on or after the date of this Indenture or upon any income or
profits therefrom unless the Company provides, and causes its Subsidiaries to
provide, concurrently therewith or immediately thereafter, that the Debentures
are equally and ratably so secured for so long as such Indebtedness so secured
remains outstanding; provided that, if such Indebtedness is Subordinated
Indebtedness, the Lien securing such Subordinated Indebtedness shall be
subordinate and junior to the Lien securing the Debentures with the same
relative priority as such Subordinated Indebtedness shall have with respect to
the Debentures.
SECTION 1012. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly enter into any contract, agreement, arrangement or
transaction with any Affiliate (an "Affiliate Transaction"), or any series of
related Affiliate Transactions (other than Exempted Affiliate Transactions),
unless the terms of such Affiliate Transaction are fair and reasonable to the
Company or such Subsidiary, as the case may be, and are at least as favorable
as the terms which could reasonably be expected to be obtained by the Company
or such Subsidiary, as the case may be, in a comparable transaction made on an
arm's length basis with Persons who are not Affiliates.
Without limiting the foregoing, in connection with any Affiliate
Transaction or series of related Affiliate Transactions (other than Exempted
Affiliate Transactions) (1) involving consideration to either party in excess
of $1.5 million, the Company must deliver an Officers' Certificate to the
Trustee, stating that the terms of such Affiliate Transaction are fair and
reasonable to the Company, and no less favorable to the Company than could
reasonably be expected to have been obtained in an arm's length transaction
with a non-Affiliate, and (2) involving consideration to either party in excess
of $7.5 million, the Company must also, prior to the consummation thereof,
obtain a favorable written opinion as to the fairness of such transaction to
the Company from a financial point of view from an independent investment
banking firm of national
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reputation or, if pertaining to a matter for which such investment banking
firms do not customarily render such opinions, an appraisal or valuation firm
of national reputation; provided, that this sentence shall not apply to the
sale or purchase of products or services by the Company or its Subsidiaries to
or from any Affiliate of LGP or any Related Party thereof, which sale or
purchase is in the ordinary course of business and in accordance with industry
practice.
SECTION 1013. Limitation on Sale of Assets and Subsidiary Stock.
The Company shall not, and shall not permit any of its Subsidiaries
to, in one or a series of related transactions, convey, sell, transfer, assign
or otherwise dispose of, directly or indirectly, any of its property, business
or assets (other than cash or Cash Equivalents), including by merger or
consolidation, and including any sale or other transfer or issuance of any
Equity Interests (other than directors qualifying shares) of any Subsidiary of
the Company, whether by the Company or a Subsidiary of the Company, and
including (except as provided in clause (vi) of the third paragraph of this
section) any Sale and Leaseback Transaction (any of the foregoing, an "Asset
Sale"), unless:
(1) (a) within 360 days after the date of such Asset Sale, the Net
Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to
the optional redemption of the Debentures in accordance with the terms of
this Indenture and other Indebtedness of the Company ranking on a parity
with the Debentures from time to time outstanding with similar provisions
requiring the Company to make an offer to purchase or redeem such
Indebtedness with the proceeds of asset sales, pro rata in proportion to
the respective principal amounts (or accreted values in the case of
Indebtedness issued with an original issue discount) of the Debentures
and such other Indebtedness then outstanding or to the repurchase of the
Debentures and such other Indebtedness pursuant to a cash offer (subject
only to conditions required by applicable law, if any (pro rata in
proportion to the respective principal amounts or accreted values in the
case of Indebtedness issued with an original issue discount) of the
Debentures and such other Indebtedness then outstanding) (the "Asset Sale
Offer") at a purchase
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price of 100% of the principal amount thereof (or the Accreted Value
thereof, in the case of Indebtedness issued with an original issue
discount) (the "Asset Sale Offer Price") together with accrued and unpaid
interest and Liquidated Damages, if any, to the date of payment, made
within 360 days of such Asset Sale, or
(b) within 360 days following such Asset Sale, the Asset Sale Offer
Amount is used (i) to make one or more Acquisitions or invested in assets
and property (other than notes, bonds, obligations and securities) which
in the good faith reasonable judgment of the Board of Directors of the
Company will constitute or be a part of a Related Business of the Company
or such Subsidiary (if it continues to be a Subsidiary) immediately
following such transaction or (ii) to retire permanently Indebtedness
incurred under the Credit Agreement pursuant to paragraph (c) of Section
1008 (including that in the case of a revolver or similar arrangement
that makes credit available, such commitment is so permanently reduced by
such amount), the Principal Subsidiary Notes or the Senior Discount
Debentures or other Indebtedness ranking on a parity with any of the
foregoing Indebtedness or other Senior Indebtedness incurred pursuant to
paragraph (b) of Section 1008,
(2) at least 75% of the consideration for such Asset Sale or series
of related Asset Sales consists of cash or Cash Equivalents, provided
that (x) the amount of any liabilities (as shown on the Company's most
recent consolidated balance sheet) of the Company or any Subsidiary
(other than Subordinated Indebtedness) that are assumed by the transferee
in such Asset Sale (provided that the Company and its Subsidiaries are
released from all obligations in respect thereof) and (y) any notes or
other obligations received by the Company or any such Subsidiary from
such transferee that are promptly (but in no event more than 90 days
after receipt) converted by the Company or such Subsidiary into cash or
Cash Equivalents (to the extent of the cash or Cash Equivalents, as the
case may be, received), shall be deemed to be cash or Cash Equivalents,
as the case may be, for purposes of this provision, and such cash and
Cash Equivalents shall be deemed to be Net Cash Proceeds received from
the Asset Sale of the related property sold for such notes or other
obligations, for purposes of this covenant, and,
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provided, further, this clause (2) shall not apply to the sale or
disposition of assets as a result of a foreclosure (or a secured party
taking ownership of such assets in lieu of foreclosure) or as a result of
an involuntary proceeding in which the Company cannot, directly or
through its Subsidiaries, direct the type of proceeds received, and
(3) with respect to any Asset Sale or series of related Asset Sales,
the Net Cash Proceeds of which exceed $2.0 million, the Board of
Directors of the Company determines in good faith that the Company or
such Subsidiary, as applicable, receives fair market value for such Asset
Sale.
An acquisition of Debentures pursuant to an Asset Sale Offer may be
deferred until the accumulated Net Cash Proceeds from Asset Sales not applied
to the uses set forth in clause (1)(b) above (the "Excess Proceeds") exceeds
$10.0 million and that each Asset Sale Offer shall remain open for 20 Business
Days following its commencement (the "Asset Sale Offer Period"). Upon
expiration of the Asset Sale Offer Period, the Company shall apply the Asset
Sale Offer Amount plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Indebtedness properly
tendered (on a pro rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together
with accrued interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Indebtedness tendered pursuant to an Asset Sale Offer is
less than the Asset Sale Offer Amount, the Company may use any remaining Net
Cash Proceeds for general corporate purposes as otherwise permitted by the
Indenture and following each Asset Sale Offer the Excess Proceeds amount shall
be reset to zero.
Notwithstanding the foregoing provisions of this covenant, the
following transactions shall not be deemed Asset Sales:
(i) the Company and each of its Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of property in the ordinary
course of business;
(ii) the Company and each of its Subsidiaries may (x) convey, sell,
lease, transfer, assign or otherwise dispose of assets pursuant to and in
accordance with
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the limitation on mergers, sales or consolidations provisions in the
Indenture, (y) make Restricted Payments permitted by Section 1009 and (z)
engage in Exempted Affiliate Transactions;
(iii) the Company and each of its Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets or issue Capital Stock to
the Company or any of the Subsidiaries;
(iv) the Company and each of its Subsidiaries may sell or dispose of
damaged, worn out or other obsolete property in the ordinary course of
business so long as such property is no longer necessary for the proper
conduct of the business of the Company or such Subsidiary, as applicable;
(v) the Company and each of its Subsidiaries may exchange assets
held by the Company or a Subsidiary for assets held by any Person or
entity; provided that (i) the assets received by the Company or a
Subsidiary in any such exchange in the good faith reasonable judgment of
the Board of Directors of the Company will immediately constitute, be a
part of, or be used in, a Related Business, (ii) the Board of Directors
of the Company has determined that the terms of any exchange are fair and
reasonable, and (iii) any such exchange shall be deemed to be an Asset
Sale to the extent that the Company or any Subsidiary receive cash or
Cash Equivalents in such exchange;
(vi) the Company and each of its Subsidiaries may engage in Sale and
Leaseback Transactions with respect to property acquired after the Issue
Date (other than property acquired in exchange for or with the proceeds
from the sale or other disposition of property held by the Company or any
Subsidiary on the Issue Date);
(vii) the Company and each of its Subsidiaries may liquidate Cash
Equivalents in the ordinary course of business;
(viii) the Company and each of its Subsidiaries may create or assume
Liens (or permit any foreclosure thereon) not prohibited by the
Indenture;
(ix) the Company and each of its Subsidiaries may surrender or waive
contract rights or the settlement,
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release or surrender of contract, tort or other claims of any kind; and
(x) the Company and its Subsidiaries, collectively, may convey,
sell, transfer, assign or otherwise dispose of assets having an aggregate
fair market value not exceeding $2.0 million in any fiscal year.
All Net Cash Proceeds from an Event of Loss (other than the proceeds
of any business interruption insurance) shall be invested or otherwise used as
provided in clause (1) of the first paragraph of this Section, all within 18
months from the occurrence of such Event of Loss.
Any Asset Sale Offer will be made in compliance with all applicable
laws, rules and regulations, including, if applicable, Regulation 14E under the
Exchange Act and the rules thereunder and all other applicable Federal and
state securities laws and any provisions of the Indenture which conflict with
such laws shall be deemed to be superseded by the provisions of such laws.
If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the Person in whose name a Debenture is registered at the close of business on
such Record Date, and such interest (and Liquidated Damages, if applicable)
will not be payable to Holders who tender Debentures pursuant to such Asset
Sale Offer.
The Company and the Trustee shall perform their respective
obligations specified in the Asset Sale Offer. On or prior to the Purchase
Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Debentures or portions thereof tendered pursuant to the Offer, (ii)
deposit with the paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust as provided in Section 1003) money
sufficient to pay the purchase price of all Debentures or portions thereof so
accepted and (iii) deliver or cause to be delivered to the Trustee all
Debentures so accepted together with an Officers' Certificate stating the
Debentures or portions thereof accepted for payment by the Company. The paying
agent (or the Company, if so acting) shall promptly
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mail or deliver to Holders of Debentures so accepted payment in an amount equal
to the purchase price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Debenture equal in principal amount to any
unpurchased portion of the Debenture surrendered. Any Debenture not accepted
for payment shall be promptly mailed or delivered by the Company to the Holder
thereof.
SECTION 1014. Limitation on Issuances and Sales of
Capital Stock of Wholly Owned Subsidiaries.
The Company will not sell, and its Subsidiaries will not issue or sell,
any shares of Capital Stock (other than directors qualifying shares) of any
Subsidiary of the Company to any Person other than the Company or a wholly
owned Subsidiary of the Company, except for shares of common stock with no
preferences or special rights or privileges and with no redemption or
prepayment provisions. Notwithstanding the foregoing, (a) the Company and its
Subsidiaries may consummate an Asset Sale of all of the Capital Stock owned by
the Company and its Subsidiaries of any Subsidiary and (b) the Company or any
Subsidiary may pledge, hypothecate or otherwise xxxxx x Xxxx on any Capital
Stock of any Subsidiary to the extent not prohibited under Section 1011.
SECTION 1015. Repurchase of Debentures at the Option of the Holder Upon a
Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
Debentures will have the right, at such Holder's option, pursuant to an offer
(subject only to conditions required by applicable law, if any) by the Company
(the "Change of Control Offer"), to require the Company to repurchase all or
any part of such Holder's Debentures (provided, that the principal amount of
such Debentures must be $1,000 or an integral multiple thereof) on a date (the
"Change of Control Purchase Date") that is no later than 45 days after the
occurrence of such Change of Control, at a cash price equal to 101% of the
principal amount thereof (the "Change of Control Purchase Price") plus accrued
and unpaid interest and Liquidated Damages, if any, to the Change of Control
Purchase Date. The Change of Control Offer shall be made within 15 business
days following a Change of Control and shall remain open for 20 Business Days
following its commencement (the "Change of
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Control Offer Period"). Upon expiration of the Change of Control Offer Period,
the Company promptly shall purchase all Debentures properly tendered in
response to the Change of Control Offer.
(b) As used herein, a "Change of Control" means:
(i) any merger or consolidation of the Company with or into any
Person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of the Company on a
consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction(s),
any "Person" or "group" (as such terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act, whether or not applicable), other
than any Excluded Person or Excluded Persons, is or becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the total
voting power in the aggregate normally entitled to vote in the election
of directors, managers or trustees, as applicable, of the transferee(s)
or surviving entity or entities,
(ii) any "Person" or "group," other than any Excluded Person or
Excluded Persons, becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the total voting power in the aggregate of all
classes of Capital Stock of the Company then outstanding normally
entitled to vote in elections of directors, or
(iii) during any period of 12 consecutive months after the Issue
Date, individuals who at the beginning of any such 12-month period
constituted the Board of Directors of the Company (together, in each
case, with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Company was
approved by LGP or a Related Party of LGP or by the Excluded Persons or
by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors of the Company then in
office, as applicable.
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(c) On or before the Change of Control Purchase Date, the Company will
(i) accept for payment Debentures or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
cash sufficient to pay the Change of Control Purchase Price (together with
accrued and unpaid interest and Liquidated Damages, if any) of all Debentures
so tendered and (iii) deliver to the Trustee Debentures so accepted together
with an Officers' Certificate listing the Debentures or portions thereof being
purchased by the Company. The Paying Agent (or the Company, if so acting)
promptly will pay the Holders of Debentures so accepted an amount equal to the
Change of Control Purchase Price (together with accrued and unpaid interest and
Liquidated Damages, if any), and the Trustee promptly will authenticate and
deliver to such Holders a new Debenture equal in principal amount to any
unpurchased portion of the Debenture surrendered. Any Debentures not so
accepted will be delivered promptly by the Company to the Holder thereof. The
Company publicly will announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Purchase Date.
(d) Any Change of Control Offer will be made in compliance with all
applicable laws, rules and regulations, including, if applicable, Regulation
14E under the Exchange Act and the rules thereunder and all other applicable
Federal and state securities laws and any provisions of the Indenture which
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
(e) If the Change of Control Purchase Date hereunder is on or after an
interest payment Record Date and on or before the associated Interest Payment
Date, any accrued and unpaid interest (and Liquidated Damages, if any) due on
such Interest Payment Date will be paid to the Person in whose name a Debenture
is registered at the close of business on such Record Date, and such interest
(and Liquidated Damages, if applicable) will not be payable to Holders who
tender the Debentures pursuant to such Change of Control Offer.
(f) Prior to making a Change of Control Offer pursuant to paragraph
(a), but in any event within 90 days following such Change of Control, the
Company will (i) obtain any required consents under the Credit Agreement, the
Senior Discount Debentures and the Principal Subsidiary Notes to permit the
making of the Change of Control Offer and the purchase of Debentures pursuant
to this
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Section 1015, or (ii) repay all or a portion of the outstanding Indebtedness of
its Subsidiaries to the extent necessary (including, if necessary, payment in
full of such Indebtedness and payment of any prepayment premiums, fees,
expenses or penalties) to permit the repurchase of the Debentures pursuant to
this Section 1015 without such consent.
(g) The obligations with respect to Change of Control Offer shall be
satisfied to the extent actually performed by a third party in accordance with
the terms of this Indenture.
SECTION 1016. Investment Company.
The Company will not, and will not permit any of its Subsidiaries to,
be required to register as an "investment company" (as that term is defined in
the Investment Company Act of 1940, as amended), or otherwise become subject to
registration under the Investment Company Act.
SECTION 1017. Limitation on Lines of Business.
Neither the Company nor any of its Subsidiaries will directly or
indirectly engage to any substantial extent in any line or lines of business
activity other than that which, in the reasonable good faith judgment of the
Board of Directors of the Company, is a Related Business.
SECTION 1018. Statement by Officers as to
Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 90 days after the
end of each fiscal year, and within 60 days after the end of each fiscal
quarter (other than the fourth fiscal quarter), of the Company ending after the
date hereof an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of Section 801 or
Sections 1004 to 1017, inclusive, and if the Company shall be in default,
specifying all such Defaults and the nature and status thereof of which they
may have knowledge.
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(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware or should
reasonably become aware of the occurrence of a Default or an Event of Default,
an Officers' Certificate setting forth the details of such Default or Event of
Default, and the action which the Company proposes to take with respect
thereto.
(c) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Debentures as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default has come to their attention and, if such a Default has come to their
attention, specifying the nature and period of the existence thereof.
SECTION 1019. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1017, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Debentures shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect; provided, however, with respect to any provision
requiring a supermajority approval to waive, such provision may only be waived
by such a supermajority, and with respect to a covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Debenture affected, such provision may only be waived by the
consent of each and every Holder of outstanding Debenture affected.
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ARTICLE ELEVEN
Redemption of Debentures
SECTION 1101. Right of Redemption.
The Company will not have the right to redeem any Debentures prior to
February 1, 1999. The Debentures will be redeemable at the option of the
Company, in whole or in part, at any time on or after February 1, 1999, at the
Redemption Prices specified in the form of Debenture hereinbefore set forth
together with any applicable accrued interest and Liquidated Damages, if any,
thereon to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Debentures at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debentures pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Debentures, the
Company shall, at least 30 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Debentures
to be redeemed.
SECTION 1104. Selection by Trustee of Debentures to Be
Redeemed.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 30 days prior to the
Redemption Date by the Trustee, from the Outstanding Debentures not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or
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any integral multiple thereof) of the principal amount of Debentures of a
denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Debenture
Registrar in writing of the Debentures selected for redemption and, in the case
of any Debentures selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debentures redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debentures which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Debentures to be redeemed, at his address appearing in
the Debenture Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Debentures are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Debentures to be redeemed, and in the case of
partial redemption, a statement as to the effect that upon surrender of
such Debentures, a new Debenture in a principal amount equal to the
unredeemed portion thereof will be issued,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debenture to be redeemed, and
(5) the place or places where such Debentures are to be surrendered
for payment of the Redemption Price.
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Notice of redemption of Debentures to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company if the Company gives
notice to the Trustee at least 45 days prior to the Redemption Date.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and any applicable accrued
interest and Liquidated Damages on, all the Debentures which are to be redeemed
on that date.
SECTION 1107. Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debentures so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price any applicable
accrued interest) such Debentures shall not bear interest. Upon surrender of
any such Debenture for redemption in accordance with said notice, such
Debenture shall be paid by the Company at the Redemption Price, together with
any applicable accrued interest and Liquidated Damages to the Redemption Date;
provided, however, that installments of interest whose Interest Payment Date is
on or prior to the Redemption Date shall be payable to the Holders of such
Debentures, or one or more Predecessor Debentures, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Debenture.
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SECTION 1108. Debentures Redeemed in Part.
Any Debenture which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debenture without service
charge, a new Debenture or Debentures, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Debenture so
surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may, at its option, elect to have its obligations
discharged with respect to the Outstanding Debentures upon compliance with the
conditions set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, the Company shall be deemed to have paid and
discharged the entire indebtedness represented, and this Indenture shall cease
to be of further effect as to all outstanding Debentures ("Legal Defeasance"),
except as to (i) rights of Holders to receive payments in respect of the
principal of, premium, if any, and interest (and Liquidated Damages, if any) on
such Debentures when such payments are due from the trust funds; (ii) the
Company's obligations with respect to such Debentures concerning issuing
temporary Debentures, registration of Debentures, mutilated, destroyed, lost or
stolen Debentures, and the maintenance of an office or agency for payment and
money for security payments held in trust; (iii) the rights, powers, trust,
duties, and immunities of the Trustee, and the Company's obligations in
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connection therewith; and (iv) the Legal Defeasance provisions of this Article
Twelve, all of which shall survive until otherwise terminated or discharged
hereunder. Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section 1202 notwithstanding the prior exercise
of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, the Company may, at its option and at any time,
elect to have the obligations of the Company released with respect to its (i)
obligations under Sections 1005 through 1017, inclusive, and clauses (3) and
(4) of Section 801 and (ii) the occurrence of an event specified in Sections
501(3), (with respect to any of Sections 1005 through 1017, inclusive), 501(6)
and 501(7) shall not be deemed to be an Event of Default on and after the date
the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"). For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or clause, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or clause or by reason of any reference in any such Section or clause
to any other provision herein or in any other document, but the remainder of
this Indenture and such Debentures shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the then Outstanding Debentures:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the provisions
of this Article Twelve applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Debentures, (A) U.S. legal tender in an amount, or
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(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
or investment bankers expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and interest (and
Liquidated Damages, if any) on such Debentures on the stated date for
payment thereof or on the redemption date of such principal or
installment of principal of, premium, if any, or interest (or Liquidated
Damages, if any) on such Debentures. The Holders of Debentures must have
a valid, perfected, exclusive security interest in such trust. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) In the case of an election of Legal Defeasance under Section
1202, before the date that is one year prior to the Stated Maturity, the
Company shall have delivered to the Trustee an Opinion of
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Counsel in the United States stating that (x) the Company has received
from, or there has been published by the Internal Revenue Service, a
ruling or (y) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
Outstanding Debentures will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred.
(3) In the case of an election of Covenant Defeasance under Section
1203, before the date that is one year prior to the Stated Maturity, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States, reasonably acceptable to such Trustee, to the effect that
the Holders of the Outstanding Debentures will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit and
Covenant Defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Debentures, if then listed on any
Debentures exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any Debentures of the
Company.
(6) No Default or Event of Default which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit.
(7) 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
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material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
interest of preferring the Holders of such Debentures over any other
creditors of the Company or with the intent of defeating, hindering, or
delaying or defrauding any other creditors of the Company or others.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 1202 or the Covenant Defeasance under Section 1203 (as the case
may be) have been complied with.
(10) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
SECTION 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Debentures shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Debentures and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Debentures, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Debentures.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, or if a Default from a bankruptcy or insolvency event occurs
at any time during the period ending on the 91st day after the date of a
deposit by the Company hereunder, then the Company's obligations under this
Indenture and the Debentures shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1202 or 1203; provided, however, that if the Company makes any payment
of principal of (and premium, if any) or interest (and Liquidated Damages, if
any) on any Debenture following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Debentures to
receive such payment from the money held by the Trustee or the Paying Agent.
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ARTICLE THIRTEEN
Subordination
SECTION 1301. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Debenture agrees,
that the Indebtedness evidenced by the Debentures and all Obligations in
respect of the Debentures are subordinated in right of payment, to the extent
and in the manner provided in this Article Thirteen, to the prior payment in
full in cash of all Senior Indebtedness (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness.
SECTION 1302. Liquidation; Dissolution; Bankruptcy.
Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors or any
marshaling of the Company's assets and liabilities:
(1) the holders of all Senior Indebtedness of the Company shall
first be entitled to receive payment in full in cash or Cash Equivalents
of all Senior Indebtedness (including Post-Commencement Interest and
Expense Claims) before the Holders are entitled to receive any payment on
account of the principal of, premium, if any, and interest on the
Debentures or any Obligation in respect to the Debentures (other than
Junior Securities); and
(2) any payment or distribution of assets of the Company of any kind
or character from any source, whether in cash, property or securities
(other than Junior Securities), to which the Holders or the Trustee on
behalf of the Holders would be entitled (by set-off or otherwise), except
for this Article, shall be paid by the liquidating trustee or agent or
other Person making such a payment or distribution directly to the
holders of such Senior Indebtedness or their representatives to the
extent necessary to make payment in full of all such Senior Indebtedness
(including
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Post-Commencement Interest and Expense Claims) remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
Senior Indebtedness.
SECTION 1303. Default on Senior Indebtedness.
No payment (by set-off or otherwise) may be made by or on behalf of the
Company or a Subsidiary, as applicable, on account of the principal of,
premium, if any, or interest on the Debentures (including any repurchases of
Debentures), or on account of the redemption provisions of the Debentures or
any Obligation in respect of the Debentures, for cash or property, (i) upon the
maturity of any Senior Indebtedness of the Company or such Subsidiary, as
applicable, by lapse of time, acceleration (unless waived) or otherwise, unless
and until all principal of, premium, if any, and the interest on and fees in
respect of such Senior Indebtedness are paid in full in cash or Cash
Equivalents, or (ii) in the event of default in the payment of any principal
of, premium, if any, or interest on or fee in respect of Senior Indebtedness of
the Company or such Subsidiary, as applicable, when it becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or
otherwise (a "Payment Default"), unless and until such Payment Default has been
cured or waived or otherwise has ceased to exist; provided, however, that
nothing in this Section shall prevent the issuance of Secondary Debentures in
lieu of a cash payment of any or all interest due on any Interest Payment Date.
Upon (i) the happening of an event of default (other than a Payment
Default) that permits the holders of Senior Indebtedness to declare such Senior
Indebtedness to be due and payable and (ii) written notice of such event of
default is given to the Company and the Trustee by the Senior Discount
Debentures Trustee, the Senior Bank Representative or the holders of an
aggregate of at least $25.0 million principal amount outstanding of any other
Senior Indebtedness or their representative (a "Payment Notice"), then, unless
and until such event of default has been cured or waived or otherwise has
ceased to exist, no payment (by set-off or otherwise) may be made by or on
behalf of the Company, if the Company is an obligor on such Senior
Indebtedness, or any Subsidiary which is an obligor under such Senior
Indebtedness on account of the principal of, premium, if any, or interest on
the Debentures
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(including any repurchases of any of the Debentures), or on account of the
redemption provisions of the Debentures or any Obligation in respect of the
Debentures, in any such case; provided, however, that nothing in this Section
shall prevent the issuance of Secondary Debentures in lieu of a cash payment of
any or all interest due on any Interest Payment Period. Notwithstanding the
foregoing, unless the Senior Indebtedness in respect of which such event of
default exists has been declared due and payable in its entirety within 179
days after the Payment Notice is delivered as set forth above (the "Payment
Blockage Period") (and such declaration has not been rescinded or waived), at
the end of the Payment Blockage Period, the Company and its Subsidiaries shall
be required to pay all sums not paid to the Holders of the Debentures during
the Payment Blockage Period due to the foregoing prohibitions and to resume all
other payments as and when due on the Debentures. Any number of Payment
Notices may be given; provided, however, that (i) not more than one Payment
Notice shall be given within a period of any 360 consecutive days and (ii) no
default that existed upon the date of such Payment Notice or the commencement
of such Payment Blockage Period (whether or not such event of default is on the
same issue of Senior Indebtedness) shall be made the basis for the commencement
of any other Payment Blockage Period.
SECTION 1304. Acceleration of Debentures.
If payment of the Debentures is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration.
SECTION 1305. When Distribution Must Be Paid Over.
In the event that, notwithstanding the other provisions of this Article
Thirteen, the Trustee receives any payment or distribution of the Debentures or
of any Obligations with respect to the Debentures at a time when the Trustee
has actual knowledge that such payment or distribution is prohibited by Section
1303 hereof, such payment or distribution shall be held by the Trustee in trust
for the benefit of, and shall be paid forthwith over and delivered, upon
written request, to, the holders of Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any
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instruments representing any of such Senior Indebtedness may have been issued,
ratably according to aggregate principal amounts remaining unpaid on account of
such Senior Indebtedness held or represented by each, for application to the
payment of all obligations with respect to Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment of all
such obligations (including Post-Commencement Interest and Expense Claims) in
full in cash or Cash Equivalents in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
In the event that, notwithstanding the other provisions of this Article
Thirteen, a Holder receives any payment or distribution of any Obligations with
respect to the Debentures at a time when such payment or distribution is
prohibited by Section 1303 hereof, such payment or distribution shall be paid
forthwith over and delivered, upon written request, to, the holders of Senior
Indebtedness remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments representing any of such Senior Indebtedness may have
been issued, ratably according to aggregate principal amounts remaining unpaid
on account of such Senior Indebtedness held or represented by such, for
application to the payment of all obligations with respect to Senior
Indebtedness remaining unpaid, to the extent necessary to pay or to provide for
the payment of all such obligations (including Post-Commencement Interest and
Expense Claims) in full in cash or Cash Equivalents in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article Thirteen, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Thirteen, except if such payment is made as
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a result of the willful misconduct or gross negligence of the Trustee.
SECTION 1306. 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 Debentures to violate this Article Thirteen, but failure to
give such notice shall not affect the subordination of the Debentures to the
Senior Indebtedness as provided in this Article Thirteen.
SECTION 1307. Subrogation.
After all Senior Indebtedness is paid in full in cash or Cash
Equivalents and until the Debentures are paid in full, Holders shall be
subrogated (equally and ratably with all other Indebtedness pari passu with the
Debentures) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Indebtedness. A distribution made under this Article Thirteen to
holders of Senior Indebtedness that otherwise would have been made to Holders
is not, as between the Company and Holders, a payment by the Company on the
Debentures. No holder of Senior Indebtedness shall be obligated to create,
warrant, preserve or protect any such subrogation right or shall suffer any
loss or diminution of its rights hereunder if for any reason (including,
without limitation, the lack of enforceability or disallowance of any
Post-Commencement Interest and Expense Claim) such right of subrogation is not
available to any Holder.
SECTION 1308. Relative Rights.
This Article defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of (and
premium, if
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any) and interest (and Liquidated Damages, if any) on the Debentures in
accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders of Senior Indebtedness to receive distributions and payments
otherwise payable to Holders.
If the Company fails because of this Article to pay principal of (or
premium, if any) or interest (or Liquidated Damages, if any) on a Debenture on
the due date, the failure is still a Default or Event of Default.
SECTION 1309. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Debentures shall be impaired
by any act or failure to act by the Company or any Holder or by the failure of
the Company or any holder of Senior Indebtedness to comply with this Indenture.
Without in any way limiting the generality of the foregoing
paragraph, the holders of the Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or Holders,
without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article Thirteen or the
obligations hereunder of the Holders to the holders of Senior Indebtedness, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time or payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against
the Company or any other Person; provided, however, that in no event shall any
such actions limit the right of the Holders to take any action to accelerate
the maturity of the Debentures in
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accordance with the provisions set forth in Section 502 or to pursue any rights
or remedies against the parties to this Indenture under this Indenture or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Article Thirteen.
SECTION 1310. Distribution or Notice to Senior Discount
Debentures Trustee.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to the
Senior Discount Debentures Trustee.
Upon any payment or distribution of assets of the Company referred to
in this Article Thirteen, the Trustee and the Holders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Senior Discount Debentures Trustee
or of the liquidating trustee or agent or other Person making any distribution
to the Trustee or to the Holders for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Thirteen. Notwithstanding the
foregoing, with respect only to obligations under the Senior Discount
Debentures, the Trustee and the Holders shall be entitled to rely only upon the
order or decree made by any court of competent jurisdiction or upon a
certificate of the Senior Bank Representative for the purpose of ascertaining
the matters described in the preceding sentence.
SECTION 1311. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article Thirteen or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Debentures, unless the Trustee shall have received at
its Corporate Trust Office at least five Business Days prior to the date of
such payment written notice of facts that would
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cause the payment of any Obligations with respect to the Debentures to violate
this Article. Only the Company or the Senior Discount Debentures Trustee may
give the notice. Nothing in this Article Thirteen shall impair the claims of,
or payments to, the Trustee under or pursuant to Section 607 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee.
SECTION 1312. Authorization to Effect Subordination.
Each Holder of a Debenture by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article Thirteen, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of Indebtedness in the form required in any
proceeding referred to in Section 504 hereof at least 30 days before the
expiration of the time to file such claim, the Senior Discount Debentures
Trustee is hereby authorized to file an appropriate claim for and on behalf of
the Holders of the Debentures.
SECTION 1313. Amendments.
The provisions of this Article Thirteen or any related definitions
shall not be amended or modified in a manner adverse to the holders of Senior
Indebtedness without the written consent of the holders of all Senior
Indebtedness.
____________________
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LIBERTY GROUP PUBLISHING, INC.
By /s/ Xxxxxxx X. Xxxxxx
______________________________
Name:Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
Attest:
/s/ Xxxxxxxxx X. Xxxxx
__________________________
Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
By /s/ Xxxxxxx Xxxxxxx
______________________________
Name:Xxxxxxx Xxxxxxx
Title: Vice President
Attest:
/s/ Xxxxx X. Xxxxxx
__________________________
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
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XXXXX XX XXXXXXXX ) ss.:
COUNTY OF XXXX )
On the 26th day of January, 1998, before me personally came Xxxxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the President and Chief Executive Officer of Liberty Group Publishing, Inc.,
one of the corporations described in and which executed the foregoing
instrument, and that he signed his name to the foregoing instrument in his
authorized capacity.
/s/ Xxxxxx X. Xxxxxx
______________________________
STATE OF CONNECTICUT ) ss.:
COUNTY OF HARTFORD )
On the 23rd day of January, 1998, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of State Street Bank and Trust Company, one of the business
entities described in and which executed the foregoing instrument, and that he
signed his name to the foregoing instrument in his authorized capacity.
/s/ Xxxx X. Xxxxxx
______________________________
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Annex A
[FORM OF DEBENTURE]
Unless and until it is exchanged in whole or in part for Debentures in
definitive form, this Debenture may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of The Depositary
Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx)(xxx "Depositary"), 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 such other name
as requested by an authorized representative of the Depositary (and any payment
is made to Cede & Co. or such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.(1)
THE DEBENTURES (OR THEIR PREDECESSORS) EVIDENCED HEREBY WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
DEBENTURES EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE DEBENTURES EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE DEBENTURES
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH DEBENTURES
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (a) INSIDE THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO THE
---------------------
(1) This paragraph should only be added if the Debenture is issued in global
form.
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COMPANY, (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (f) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS) AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE DEBENTURES EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE.(2)
THIS DEBENTURE IS A REGULATION S TEMPORARY GLOBAL DEBENTURE AS SPECIFIED
IN THE INDENTURE. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN SECTION 305 OF THE
INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS REGULATION S
TEMPORARY GLOBAL DEBENTURE MAY BE MADE FOR AN INTEREST IN A REGULATION S
PERMANENT GLOBAL DEBENTURE OR A RULE 000X XXXXXX XXXXXXXXX DURING THE
RESTRICTED PERIOD.(3)
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND MAY
NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS DEBENTURE IS REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF IS AVAILABLE.(4)
LIBERTY GROUP PUBLISHING, INC.
14 3/4% SENIOR SUBORDINATED DEBENTURES DUE 2010
CUSIP No.
No. $_________________
Liberty Group Publishing, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
--------------------
(2) This sentence should be included only for the Transfer Restricted
Debentures.
(3) This paragraph should be included only for Regulation S Temporary Global
Debentures.
(4) This paragraph should be included only for Regulation S Permanent Global
Debentures.
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received, hereby promises to pay to ____________________, or registered
assigns, the principal sum of _____________ million dollars on February 1,
2010, and to pay interest thereon from the Exchange Date or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on February 1 and August 1 in each year, commencing the
earlier of the first February 1 or August 1 immediately following the Exchange
Date, at 14 3/4% until the principal hereof is paid or made available for
payment, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of 16 3/4% per annum on any overdue principal and
premium and on any overdue installment of interest and Liquidated Damages, if
any, until paid as specified on the reverse hereof.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Debentures not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
On each Interest Payment Date, the Company may, at its option, subject to
and in accordance with the provisions of this Debenture and the Indenture,
issue Secondary Debentures (as hereinafter defined) in lieu of the payment in
cash of any portion of the interest due and payable on such Interest Payment
Date. If the Company elects to issue Secondary Debentures in lieu of the
payment in cash of such portion of interest, it shall give notice of such
election to the Holders and the Trustee not less than 15 nor more than
45 days prior to the Regular Record Date for such Interest Payment Date, and
shall execute and deliver to the Trustee for authentication, and the Trustee
shall authenticate and deliver
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to the Person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on such Regular Record Date,
additional Debentures dated such Interest Payment Date in a principal amount
equal to such portion of interest (such additional Debentures being referred to
herein as the "Secondary Debentures"), and the due issuance of such Secondary
Debentures shall constitute full payment of such portion of interest; provided,
however, in lieu of the issuance of any Secondary Debenture (x) the principal
amount of which would be less than $1,000 or (y) would exceed the largest
integral multiple of $1,000 which is less than or equal to such principal
amount (in each case, a "Fractional Secondary Debenture"), the Company shall,
in the case of Clause (y), issue a Secondary Debenture with a principal amount
equal to such largest integral multiple and shall, in the case of Clauses (x)
and (y), in its sole discretion, either (1) on behalf of and for the accounts
of all Holders of Debentures who would be entitled to Fractional Secondary
Debentures, aggregate all such Fractional Secondary Debentures and, on or
before the tenth Business Day following the applicable Interest Payment Date,
sell such aggregated Fractional Secondary Debentures and, within six Business
Days of such sale, pay each such Holder his proportionate share of the net
proceeds of such sale, or (2) pay (on the Interest Payment Date) each such
Holder, with respect to any Fractional Secondary Debenture that such Holder
would otherwise be entitled to receive, an amount in cash equal to the average
closing price per $1,000 principal amount of Debentures for the ten trading
days preceding the Business Day immediately preceding the applicable Interest
Payment Date multiplied by a fraction, the numerator of which is the principal
amount of such Fractional Secondary Debenture otherwise issuable to such Holder
and the denominator of which is $1,000. Each issuance of Secondary Debentures
in lieu of the payment of all or any portion of interest in cash on the
Debentures shall be made pro rata with respect to the Outstanding Debentures.
Payment of the principal of (and premium, if any) and interest (and
Liquidated Damages, if any) on this Debenture will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Debenture Register.
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Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
LIBERTY GROUP PUBLISHING, INC.
By_______________________
Name:
Title:
Attest:
______________________________
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned
Indenture.
Dated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By ______________________
Authorized Officer
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The [Rule 144A] [Regulation S Temporary] [Regulation S Permanent] [Global]
Debenture is one of a duly authorized issue of Debentures of the Company
designated as its 14 3/4% Senior Subordinated Debentures due 2010 (herein
called the "Debentures"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $___________,
issued and to be issued under an Indenture, dated as of January 27, 1998
(herein called the "Indenture"), between the Company and State Street Bank and
Trust Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness and the Holders of the
Debentures and of the terms upon which the Debentures are, and are to be,
authenticated and delivered.
The Debentures are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after February 1, 1999, as a
whole or in part, at the election of the Company, at a Redemption Price which,
if during the twelve month period beginning February 1, 1999 is equal to 105.0%
of the principal amount of this Debenture; if during the twelve month period
beginning February 1, 2000 is equal to 104.0% of the principal amount of this
Debenture; if during the twelve month period beginning February 1, 2001 is
equal to 103.0% of the principal amount of this Debenture; if during the twelve
month period beginning February 1, 2002 is equal to 102.0% of the principal
amount of this Debenture; if during the twelve month period beginning February
1, 2003 is equal to 101.0% of the principal amount of this Debenture; and
thereafter is equal to 100% of the principal amount of this Debenture, in each
case plus interest thereon accruing from the most recent Interest Payment Date
to which interest has been paid or duly provided for, at the rate of 14 3/4%
per annum, provided that interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Debentures, or one or more Predecessor Debentures, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
The Debentures do not have the benefit of any sinking fund obligations.
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139
In the event of redemption or purchase pursuant to an Asset Sale Offer or
Change of Control Offer of this Debenture in part only, a new Debenture or
Debentures for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the principal amount of the Debentures, in the manner
and with the effect provided in the Indenture. Upon any acceleration of
maturity of the Debentures, all principal of and accrued interest and
Liquidated Damages, if any, on the Debentures shall be due and payable
immediately.
The Indenture provides that, subject to certain conditions, if (i) certain
Net Cash Proceeds are available to the Company as a result of Asset Sales or
(ii) a Change of Control occurs, the Company shall be required to make an Asset
Sale Offer or Change of Control Offer, respectively, for all of the Debentures.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Debenture or (ii) certain restrictive covenants and
Events of Default with respect to this Debenture, in each case upon compliance
with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Debentures at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Debentures at the
time
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Outstanding, on behalf of the Holders of all the Debentures, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Debenture shall be conclusive and binding upon
such Holder and upon all future Holders of this Debenture and of any Debenture
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest (and Liquidated Damages, if any) on this Debenture at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Debenture
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York and at any other office or agency maintained by the Company for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Debenture Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Debentures, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Debentures are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Debentures are
exchangeable for a like aggregate principal amount of Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of transfer,
the Company, the Trustee and any
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agent of the Company or the Trustee may treat the Person in whose name this
Debenture is registered as the owner hereof for all purposes, whether or not
this Debenture be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
Interest on this Debenture shall be computed on the basis of a 360-day
year of twelve 30-day months.
No direct or indirect stockholder, employee, officer or director, as such,
past, present or future of the Company, the Subsidiaries or any successor
entity shall have any personal liability in connection with this Debenture
solely by reason of his or its status as such stockholder, employee, officer or
director. Each Holder by accepting this Debenture waives and releases all such
liability, acknowledges and consents to the transactions described under "The
Acquisition" in the Offering Memorandum and further acknowledges the waiver and
release are part of the consideration for the issuance of this Debenture.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture. In addition to the rights
provided to Holders of the Debentures under the Indenture, Holders of
Debentures shall have all the rights set forth in the Registration Rights
Agreement.(5)
The Indenture and this Debenture shall be governed by and construed in
accordance with the laws of the State of New York.
-----------------
(5) This sentence should be included only for the Initial Debentures.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased in its entirety by
the Company pursuant to Section 1013 or 1015 of the Indenture, check the box:
[ ]
If you want to elect to have only a part of this Debenture purchased by
the Company pursuant to Section 1013 or 1015 of the Indenture, state the
amount: $
Dated: Your Signature:____________________
(Sign exactly as name appears on the
other side of this Debenture)
Signature Guarantee:_______________________________________________
(Signature must be guaranteed by
a member firm of the New York Stock
Exchange or a commercial bank or
trust company)
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SCHEDULE OF EXCHANGES(6)
The following exchanges relating to this Global Debenture have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Global authorized
Principal Principal Debenture officer of
Amount of this Amount of this following Trustee or
Date of Global Global such decrease Debentures
Exchange Debenture Debenture (or increase) Custodian
_________________________________________________________________________________________
------------------
(6) This schedule should only be added if the Debenture is issued in global
form.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
TRANSFER RESTRICTED DEBENTURES(7)
Re: 14 3/4% SENIOR SUBORDINATED DEBENTURES DUE 2010 OF LIBERTY GROUP
PUBLISHING, INC.
This Certificate relates to $___________ principal amount of Debentures
held in (check applicable space) _____ book-entry or _____ definitive form by
_________________ (the "Transferor").
The Transferor (check applicable box):
[] This beneficial interest in the Global Debenture held by the
Depositary a Debenture or Debentures in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Debenture (or the portion thereof indicated
above); or
[] has requested the Trustee by written order to exchange or register the
transfer of a Debenture or Debentures.
In connection with such request and in respect of each such Debenture, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Debentures and as provided in Section 305 of
such Indenture, the transfer of this Debenture does not require registration
under the Securities Act (as defined below) because:
[] Such Debenture is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 305(a)(ii)(A) or Section
305(d)(ii)(A) of the Indenture).
[] Such Debenture is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A promulgated under the Securities Act) that is aware
that any sale of Debentures to it will be made in reliance on Rule 144A under
the Securities Act and that is acquiring such Transfer Restricted Debenture for
its own account, or
-----------------
(7) This Certificate shall be included only for Initial Debentures.
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for the account of another such "qualified institutional buyer" (in
satisfaction of Section 305(a)(ii)(B) or Section 305(d)(ii)(B) of the
Indenture).
[] Such Debenture is being transferred pursuant to an exemption from
registration in accordance with Rule 144, or outside the United States in an
Offshore Transaction in compliance with Rule 904 under the Securities Act, or
pursuant to an effective registration statement under the Securities Act (in
satisfaction of Section 305(a)(ii)(C) or Section 305(d)(ii)(C) of the
Indenture).
[] Such Debenture is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act and
in accordance with applicable securities laws of the states of the United
States, other than as provided in the immediately preceding paragraph. An
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 305(a)(ii)(D) or Section 305(d)(ii)(D) of the
Indenture).
_____________________________
[INSERT NAME OF TRANSFEROR]
By:__________________________
Date:_____________________
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
DEBENTURES(8)
Re: 14 3/4% SENIOR SUBORDINATED DEBENTURES DUE 2010 OF LIBERTY GROUP
PUBLISHING, INC.
This Certificate relates to $_____ principal amount of Debentures held
in (check applicable box) _____ book-entry or _____ definitive form by
___________ (the "Transferor").
The Transferor (check applicable box):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Debenture held by the Depositary a
Debenture or Debentures in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Debenture (or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Debenture or Debentures.
______________________________
[INSERT NAME OF TRANSFEROR]
By:___________________________
Date:_____________________
-------------------
(8) This certificate shall be included only for the Exchange Debentures.
A-15
147
Annex B
[FORM OF REGULATION S CERTIFICATE FOR HOLDER]
CERTIFICATE TO BE DELIVERED UPON RECEIPT OF PAYMENT OF PRINCIPAL OR INTEREST
WITH RESPECT TO A REGULATION S TEMPORARY GLOBAL DEBENTURE OR THE EXCHANGE OF A
REGULATION S TEMPORARY GLOBAL DEBENTURE FOR REGULATION S PERMANENT GLOBAL
DEBENTURE
Re: 14 3/4% SENIOR SUBORDINATED DEBENTURES DUE 2010 OF LIBERTY GROUP
PUBLISHING, INC.
The undersigned as the Holder of a beneficial interest in a Regulation
S Temporary Global Debenture is delivering this certificate concurrently with
(check one):
[ ] the receipt of a payment of interest or principal with respect to a
Regulation S Temporary Global Debenture; or
[ ] its written order to Euroclear or CEDEL, as the case may be, to
exchange its beneficial interest in the Regulation S Temporary Global
Debenture for beneficial interest in a Regulation S Permanent Global Debenture.
In connection with the above, the undersigned hereby certifies that:
[ ] the undersigned as the Holder of the beneficial interest in the
Regulation S Temporary Global Debenture is nota U.S. Person (as defined in
Section 305); or
[ ] the undersigned has purchased its interest in the Regulation S
Temporary Global Debenture in a transaction that is exempt from the registration
requirements under the Securities Act.
______________________________
[INSERT NAME OF HOLDER]
By:___________________________
Date:_____________________
B-1
148
[FORM OF REGULATION S CERTIFICATE FOR EUROCLEAR AND CEDEL]
CERTIFICATE TO BE DELIVERED UPON RECEIPT OF PAYMENT OF PRINCIPAL OR INTEREST
WITH RESPECT TO A REGULATION S TEMPORARY GLOBAL DEBENTURE OR THE EXCHANGE OF A
REGULATION S TEMPORARY GLOBAL DEBENTURE FOR REGULATION S PERMANENT GLOBAL
DEBENTURE
Re: 14 3/4% SENIOR SUBORDINATED DEBENTURES DUE 2010 OF LIBERTY GROUP
PUBLISHING, INC.
The undersigned is delivering this certificate concurrently with (check
one):
[ ] the receipt of a payment of interest or principal with respect to a
Regulation S Temporary Global Debenture; or
[ ] the exchange of a Regulation S Temporary Global Debenture for a
Regulation S Permanent Global Debenture.
In connection with the above, the undersigned hereby certifies that:
[ ] None of the holders of beneficial interests in the Regulation S
Temporary Global Debenture is a U.S. Person (as defined in Section 305); or
[ ] Each of the holders of beneficial interests in the Regulation S
Temporary Global Debenture has purchased its interest in a transaction that is
exempt from the registration requirements under the Securities Act.
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
AS OPERATOR OF THE EUROCLEAR
CLEARANCE SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
By:___________________________
Date:_____________________
B-2
