EXHIBIT 6.12
This INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
("Instrument") effective as of January 13, 2003 (the "Effective Date"), is made
by and among GENERAL MEDIA, INC., a Delaware corporation (the "Company"), the
SUBSIDIARY GUARANTORS under the Indenture (as defined below), the SUBSIDIARY
GRANTORS under the Security Agreement (as defined below) the SUBSIDIARY PLEDGORS
under the Pledge Agreement (as defined below) (collectively the "Subsidiary
Guarantors"), THE BANK OF NEW YORK, a New York banking corporation (the
"Resigning Trustee"), and HSBC Bank USA, a New York banking and trust company
(the "Successor Trustee"). Capitalized terms not otherwise defined herein shall
have the same meaning ascribed to such terms in the Indenture.
RECITALS
WHEREAS, pursuant to an Indenture dated as of December 21, 1993, as
amended and supplemented by that certain First Supplemental Indenture dated as
of May 19, 1999, that certain Second Supplemental Indenture dated as of March
29,2001, that certain Third Supplemental Indenture dated as of August 1,2002 and
that certain Fourth Supplemental Indenture dated as of November 12, 2002
(collectively, the "Indenture") among the Company, the Subsidiary Guarantors and
IBJ Xxxxxxxx Bank & Trust Company, the predecessor to the Resigning Trustee, the
Company issued $85,000,000 in aggregate principal amount of its 10 5/8% Senior
Secured Debentures due 2000, Series A and B (the "Notes");
WHEREAS, the Company also appointed the Resigning Trustee as Registrar,
Paying Agent and Note Custodian under the Indenture and Collateral Agent under
the Security Agreement and Pledge Agreement attached to the Indenture (as the
same are amended and in effect from time to time, the "Collateral Agreements");
WHEREAS, the aggregate principal amount of the Notes issued and
outstanding, as of January 10, 2003, is $41,846,800;
WHEREAS, Section 7.08 of the Indenture provides that the Resigning
Trustee may at any time resign by giving written notice of such resignation to
the Company and the Company shall promptly appoint a Successor Trustee;
WHEREAS, Section 13.02 of each of the Security Agreement and the Pledge
Agreement (as the same are amended and in effect from time to time) provide that
the successor Trustee named in accordance with Article 7 of the Indenture shall,
without further action, be and become Collateral Agent thereunder;
WHEREAS, the Resigning Trustee desires to resign and the Company
desires to appoint the Successor Trustee as Trustee, Registrar, Paying Agent,
and Note Custodian under the Indenture and Collateral Agent under the Collateral
Agreements, to succeed the Resigning Trustee in such capacities under the
Indenture and the Collateral Agreements, respectively; and
WHEREAS, the Successor Trustee is willing to accept such appointment;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. ACCEPTANCE OF RESIGNATION OF RESIGNING TRUSTEE; APPOINTMENT OF
SUCCESSOR TRUSTEE. The Resigning Trustee hereby resigns as Trustee, Registrar,
Paying Agent and Note Custodian under the Indenture, and as Collateral Agent
under the Collateral Agreements. The Company accepts the resignation of the
Resigning Trustee and hereby appoints the Successor Trustee as Trustee,
Registrar, Paying Agent, Note Custodian under the Indenture and as Collateral
Agent under the Collateral Agreements, and vests and confirms to the Successor
Trustee all rights, powers, trusts, privileges, duties, security interests and
obligations of such persons under the Indenture and the Collateral Agreements,
respectively, all effective as of the Effective Date.
2. COMPANY REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Successor Trustee that:
a. It is duly organized and validly existing under the laws of
Delaware;
b. It has not entered into any amendment or supplement to the
Indenture or the Collateral Agreements except for the amendment to the
Security Agreement dated as of March 31,2001 and as disclosed herein,
and each of the Indenture and the Collateral Agreements is in full
force and effect;
c. The execution and delivery of this Instrument and the
consummation of the transactions contemplated hereby do not and will
not conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, any contract, agreement,
indenture or other instrument (including, without limitation, its
certificate of incorporation and by-laws) to which it is a party or by
which it or its property is bound, or any judgment, decree or order of
any court or governmental agency or regulatory body or law, rule or
regulation applicable to it or its property;
d. No covenant or condition contained in the Indenture or any of
the Collateral Agreements has been waived by the Company except where
such waiver has been granted by the holders of the percentage in
aggregate principal amount of the Notes required to effect any such
waiver;
e. The Notes are validly issued securities of the Company;
f. The Company has complied with any conditions precedent
relating to the appointment of HSBC Bank USA, as successor Trustee,
Registrar, Paying Agent, Note Custodian under the Indenture, and
Collateral Agent under the Collateral Agreements for which the Company
is responsible; and
g. There is no action, suit or proceeding pending or, to the best
of the Company's knowledge, threatened against the Company before any
Court or any
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governmental authority, arising out of any action or omissions by the
Company under the Indenture or any of the Collateral Agreements.
3. RESIGNING TRUSTEE REPRESENTATIONS AND WARRANTIES. The
Resigning Trustee hereby represents and warrants to the Successor Trustee that:
a. No covenant or condition contained in the Indenture or any of
the Collateral Agreements has been waived by the Resigning Trustee or,
to the best of the knowledge of the Resigning Trustee, except where
such waiver has been granted by the holders of the percentage in
aggregate principal amount of the Notes required by the Indenture to
effect any such waiver;
b. There is no action, suit or proceeding pending or, to the best
of the knowledge of the Resigning Trustee, threatened against the
Resigning Trustee before any court or governmental authority arising
out of any actual or alleged action or omission by the Resigning
Trustee, in any of its capacities as Trustee, Registrar, Paying Agent
or Note Custodian, under the Indenture, Collateral Agent under the
Collateral Agreements, or otherwise;
c. It has made, or promptly will make, available to the Successor
Trustee originals, if available, or copies in its possession, of all
documents relating to any of the Notes or the Indenture or any matter
or thing pertaining to any thereof and all information in the
possession of its corporate trust administration department relating to
any of the foregoing and will furnish to the Successor Trustee such
documents or information on or before the Effective Date.
Notwithstanding the foregoing, the Resigning Trustee reserves the right
to withhold documents, if any, which are subject to privilege;
d. To the best of its knowledge, it has lawfully discharged its
duties as Trustee, Registrar, Paying Agent and Note Custodian under the
Indenture and Collateral Agent under the Collateral Agreements;
e. The Resigning Trustee certifies that $41,846,800 in aggregate
principal amount of Notes is outstanding as of January 10, 2003;
f. As of the Effective Date, the Resigning Trustee holds no
property or monies under the Indenture or any of the Collateral
Agreements, and will have transferred and delivered all property and
monies held by it under the Indenture or any of the Collateral
Agreements, including those documents physically held, including the
pledged shares of the Subsidiary Guarantors and the conditional
mortgage on 00 X. 00xx Xx., Xxx Xxxx, Xxx Xxxx, to the Successor
Trustee;
g. This Instrument has been duly authorized, executed and
delivered on behalf of the Resigning Trustee and constitutes its legal,
valid and binding obligation; and
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h. The Resigning Trustee shall deliver to the Successor Trustee
as of or immediately after the Effective Date all of the documents
listed on Exhibit A annexed hereto.
4. SUCCESSOR TRUSTEE REPRESENTATIONS AND WARRANTY. The Successor
Trustee represents and warrants to the Resigning Trustee and the Company that,
(a) it is duly organized and validly existing under the laws of the state of its
organization, (b) it is eligible to serve as Trustee, Registrar, Paying Agent
and Note Custodian under the Indenture and under the Trust Indenture Act of
1939, as amended, and as Collateral Agent under the Collateral Agreements, (c)
the execution and delivery of this Instrument and the consummation of the
transactions contemplated hereby do not and will not conflict with, or result in
a breach of, any of the terms or provisions of, or constitute a default under,
any contract, agreement, indenture or other instrument (including, without
limitation, its certificate of incorporation and by-laws) to which it is a party
or by which it or its property is bound, or any judgment, decree or order of any
court or governmental agency or regulatory body or law, rule or regulation
applicable to it or its property, (d) this Instrument has been duly authorized,
executed and delivered on behalf of the Successor Trustee and constitutes its
legal, valid and binding obligation, (e) the Successor Trustee has complied with
all conditions precedent relating to the appointment of the Successor Trustee,
as successor Trustee, Registrar, Paying Agent and Note Custodian under the
Indenture, and as Collateral Agent under the Collateral Agreements for which the
Successor Trustee is responsible, (f) the Successor Trustee satisfies the
requirements of, and has no conflict under, Section 310 of the Trust Indenture
Act of 1939, as amended, and (g) the Successor Trustee has made any and all
filings as required under the Trust Indenture Act of 1939, as amended.
5. ACCEPTANCE BY SUCCESSOR TRUSTEE. The Successor Trustee hereby
accepts, effective on the Effective Date, its appointment as Trustee, Registrar,
Paying Agent and Note Custodian under the Indenture and Collateral Agent under
the Collateral Agreements, and assumes all such rights, powers, trusts, duties
and obligations. The Successor Trustee will perform said rights, powers and
duties upon the terms and conditions set forth in the Indenture and the
Collateral Agreements, respectively. Promptly after the execution and delivery
of this Instrument, the Successor Trustee shall cause a notice, a form of which
is annexed hereto as Exhibit B, to be sent to each Holder of the Notes in
accordance with Section 7.08 of the Indenture.
6. ASSIGNMENT, ETC. BY RESIGNING TRUSTEE. Effective on the
Effective Date, the Resigning Trustee hereby confirms, assigns, transfers,
delivers and conveys, to the Successor Trustee, as Trustee, Registrar, Paying
Agent and Note Custodian under the Indenture, and Collateral Agent under the
Collateral Agreements, upon the trusts expressed in the Indenture and upon the
terms and conditions of the Collateral Agreements, respectively, all rights,
powers, trusts, privileges, duties and obligations, which the Resigning Trustee
now holds under and by virtue of the Indenture and the Collateral Agreements,
and effective as of such date does hereby pay over to the Successor Trustee any
and all property and moneys held by the Resigning Trustee under and by virtue of
the Indenture and of the Collateral Agreements, including those
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documents physically held, including the pledged shares of the Subsidiary
Guarantors and the conditional mortgage on 00 X. 00xx Xx., Xxx Xxxx, Xxx Xxxx,
subject nevertheless to the lien provided by Section 7.07 of the Indenture,
which lien the Resigning Trustee expressly reserves to the fullest extent
necessary to secure the Company's obligations under the Indenture to the
Resigning Trustee, which lien shall also secure the Company's obligations under
the Indenture and under the Collateral Agreements to the Successor Trustee.
7. ADDITIONAL DOCUMENTATION. The Company and the Resigning
Trustee, for the purposes of more fully and certainly vesting in and confirming
to the Successor Trustee the rights, powers, trusts, privileges, duties and
obligations granted in the Indenture and the Collateral Agreements,
respectively, agree, upon reasonable request of the Successor Trustee, to
execute, acknowledge and deliver such further instruments of conveyance and
further assurance and to do such other things as may reasonably be required by
the Successor Trustee.
8. CHOICE OF LAWS. The laws of the State of New York shall govern
this Instrument.
9. COUNTERPARTS. This Instrument may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an
original, but all counterparts shall constitute but one Instrument.
10. SURVIVAL OF COMPANY'S OBLIGATIONS TO RESIGNING TRUSTEE.
Notwithstanding the resignation of the Resigning Trustee as Trustee, Registrar,
Paying Agent and Note Custodian under the Indenture and Collateral Agent under
the Agreements, nothing contained in this Instrument shall in any way abrogate
the obligations of the Company to the Resigning Trustee under the Indenture or
the Collateral Agreements or any lien created in favor of the Resigning Trustee
thereunder, including without limitation, the lien provided under Section 7.07
of the Indenture.
11. COMPANY'S OBLIGATION TO SUCCESSOR TRUSTEE. The Company hereby
acknowledges and reaffirms its obligations to the Successor Trustee as set forth
in Section 7.07 of the Indenture, which obligations shall survive the execution
hereof pursuant to the terms of the Indenture.
12. ACKNOWLEDGEMENT OF RESIGNING TRUSTEE. The Resigning Trustee
acknowledges and agrees that it shall remain solely responsible for, and shall
promptly pay Successor Trustee, any and all costs, claims, liabilities, losses
or damages whatsoever, incurred by Successor Trustee, which arise out of actual,
alleged or adjudicated actions or omissions of the Resigning Trustee as Trustee,
Registrar, Paying Agent or Note Custodian under the Indenture or Collateral
Agent under the Collateral Agreements. The Successor Trustee will furnish to the
Resigning Trustee, promptly after receipt, all documents with respect to any
such action for which the Resigning Trustee may be so responsible.
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13. NOTICES. All notices, whether faxed or mailed will be deemed
received when sent pursuant to the following instructions:
TO THE RESIGNING TRUSTEE:
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxx, V.P. Corporate Trust Administration
FAX: (000) 000-0000
TEL: (000) 000-0000
TO THE SUCCESSOR TRUSTEE:
HSBC Bank USA
Issuer Services
Attn.: Xxxxxx X. Xxxxxx, Vice President
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
FAX: 000-000-0000
TEL: 000-000-0000
TO THE COMPANY:
General Media, Inc.
00 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: President and Chief Operating Officer
FAX: (000) 000-0000
TEL: (000) 000-0000
14. CORPORATE TRUST OFFICE. References in the Indenture or the
Collateral Agreements to "Corporate Trust Office" or other similar terms shall
be deemed to refer to the Corporate Trust Office of the Successor Trustee at 00
X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or any other office of the Successor
Trustee at which, at any particular time, its corporate trust business shall be
administered.
15. EFFECTIVENESS. This Agreement shall become effective as of the
Effective Date upon the execution and delivery thereof by the duly authorized
representatives of each of the parties hereto.
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IN WITNESS WHEREOF, General Media, Inc., The Bank of New York and HSBC
Bank USA have executed this Instrument as of the Effective Date.
GENERAL MEDIA, INC.
By /s/ R. Gucceone
-------------------------------
Its______________________________
THE BANK OF NEW YORK
By________________________________
Its______________________________
HSBC BANK USA
By________________________________
Its______________________________
SUBSIDIARY GUARANTORS (under the Indenture)
SUBSIDIARY GRANTORS (under the Security Agreement)
SUBSIDIARY PLEDGORS (under the Pledge Agreement)
GENERAL MEDIA ART HOLDING, INC.
GENERAL, MEDIA COMMUNICATIONS, INC.
GENERAL MEDIA ENTERTAINMENT, INC.
GENERAL MEDIA (UK), LTD.
GMCI INTERNET OPERATIONS, INC.
GMI ON-LINE VENTURES, LTD.
PENTHOUSE CLUBS INTERNATIONAL ESTABLISHMENT
PENTHOUSE FINANCIAL SERVICES, N.V.
PENTHOUSE IMAGES ACQUISITIONS, LTD.
PURE ENTERTAINMENT TELECOMMUNICATIONS, INC.
By /s/ R. Gucceone
--------------------------------
Its_______________________________
(for each of the above-listed Subsidiary Guarantors, Subsidiary Grantors and
Subsidiary Pledgors)
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EXHIBIT A
Documents to be delivered to the Successor Trustee
1. Executed and conformed copy of the Indenture, Collateral
Agreements and amendments and supplements thereto.
2. Copy of the Trustee's Notice of Resignation.
3. File of closing documents.
4. Copies of the most recent of each of the SEC reports delivered
by the Company pursuant to the Indenture.
5. Copies of any official notices sent by the Trustee to all of
the Holders of the Notes pursuant to the terms of any Indenture during the past
twelve months and a copy of the most recent Trustee's Annual Report to Holders
if any.
6. Certified List of Holders as of the date of Trustee's
resignation, certificate detail, and all "stop transfers" and the reason for
such "stop transfers" (or, alternatively, if there are a substantial number of
registered Holders, the computer tape reflecting the identity, address, tax
identification number and detailed holdings of each such Holder.)
7. Debt service records or trust account statements for one-year
period preceding the date of this Agreement and conversion requests, if any.
8. All unissued Notes inventory or DTC FAST held global
certificates.
9. Documents relating to secured interests and all communications
from the Company relating to the sale, transfer etc. of assets.
10. Pledged shares of the Subsidiary Guarantors and the
conditional mortgage on 00 X. 00xx Xx., Xxx Xxxx, Xxx Xxxx.
11. Such other documents as the Successor Trustee may reasonably
require in order to transfer the appointment to it.
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EXHIBIT B
[HSBC Letterhead]
Notice to Holders
To the holders of the 15% Senior Secured Debentures, Series C, due 2004 (the
"Notes") issued by General Media, Inc. (the "Company") under the Indenture (the
"Indenture"); dated as of December 21, 1993, as amended and supplemented, by and
between the Company and The Bank of New York, as Trustee.
NOTICE IS HEREBY GIVEN that, in accordance with the Indenture, The Bank of New
York has resigned as Trustee under the Indenture and Collateral Agent under the
related Collateral Agreements.
In accordance with the Indenture, HSBC Bank USA, a banking corporation and
trust company duly organized and existing under the laws of the State of New
York, has accepted appointment as Trustee, Registrar, Paying Agent and Note
Custodian under the Indenture and as Collateral Agent under the Collateral
Agreements. The address of the Corporate Trust Office of HSBC Bank USA is 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Bank of New York's resignation as Trustee and HSBC Bank USA's appointment
as Successor Trustee shall become effective as of the close of business on
January
__, 2003.
Dated: New York, New York
_____ ___, 2003
HSBC Bank USA, as Successor Trustee and Collateral Agent
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