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EXHIBIT 4.1
_________________________________________________________
LIBERTY GROUP PUBLISHING, INC.
TO
STATE STREET BANK AND TRUST COMPANY
as Trustee
________________
Indenture
Dated as of January 27, 1998
________________
$89,000,000
11 5/8% Senior Discount Debentures due 2009
___________________________________________________________
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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 ................................................. 31
SECTION 103. Form of Documents Delivered to
Trustee .................................................. 32
SECTION 104. Acts of Holders; Record Date ............................. 33
SECTION 105. Notices, Etc., to Trustee
and Company .............................................. 34
SECTION 106. Notice to Holders; Waiver ................................ 35
SECTION 107. Conflict with Trust Indenture Act ........................ 35
SECTION 108. Effect of Headings and Table of Contents ................. 36
SECTION 109. Successors and Assigns ................................... 36
SECTION 110. Separability Clause ...................................... 36
SECTION 111. Benefits of Indenture .................................... 36
SECTION 112. Governing Law ............................................ 36
SECTION 113. Legal Holidays ........................................... 36
SECTION 114. No Personal Liability of Partners, Stockholders,
Officers, Directors ...................................... 37
ARTICLE TWO
Debenture Forms
SECTION 201. Forms Generally .......................................... 37
ARTICLE THREE
The Debentures
SECTION 301. Title and Terms .......................................... 39
SECTION 302. Denominations ............................................ 40
SECTION 303. Execution, Authentication,
Delivery and Dating ...................................... 40
SECTION 304. Temporary Debentures ..................................... 41
SECTION 305. Registration, Registration of
Transfer and Exchange .................................... 42
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SECTION 306. Mutilated, Destroyed, Lost and
Stolen Debentures ........................................ 53
SECTION 307. Payment of Interest; Interest Rights Preserved ........... 54
SECTION 308. Persons Deemed Owners .................................... 55
SECTION 309. Cancellation ............................................. 56
SECTION 310. Computation of Accretion
and Interest ............................................. 56
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge
of Indenture ............................................. 56
SECTION 402. Application of Trust Money ............................... 58
ARTICLE FIVE
Remedies
SECTION 501. Events of Default ........................................ 58
SECTION 502. Acceleration of Maturity; Rescission
and Annulment ............................................ 61
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee ............................... 61
SECTION 504. Trustee May File Proofs of Claim ......................... 63
SECTION 505. Trustee May Enforce Claims Without Possession of
Debentures ............................................... 63
SECTION 506. Application of Money Collected ........................... 64
SECTION 507. Limitation on Suits ...................................... 64
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ..................................... 65
SECTION 509. Restoration of Rights and Remedies ....................... 65
SECTION 510. Rights and Remedies Cumulative ........................... 66
SECTION 511. Delay or Omission Not Waiver ............................. 66
SECTION 512. Control by Holders ....................................... 66
SECTION 513. Waiver of Past Defaults .................................. 67
SECTION 514. Undertaking for Costs .................................... 67
SECTION 515. Waiver of Usury, Stay or Extension Laws .................. 68
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities ......................................... 68
SECTION 602. Notice of Defaults ....................................... 68
SECTION 603. Certain Rights of Trustee ................................ 69
SECTION 604. Not Responsible for Recitals or
Issuance of Debentures ................................... 70
SECTION 605. May Hold Debentures ...................................... 70
SECTION 606. Money Held in Trust ...................................... 71
SECTION 607. Compensation and Reimbursement ........................... 71
SECTION 608. Disqualification;
Conflicting Interests .................................... 71
SECTION 609. Corporate Trustee Required;
Eligibility .............................................. 72
SECTION 610. Resignation and Removal;
Appointment of Successor ................................. 72
SECTION 611. Acceptance of Appointment
by Successor ............................................. 74
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business ................................ 74
SECTION 613. Preferential Collection of Claims
Against Company .......................................... 75
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders ........................... 75
SECTION 702. Preservation of Information;
Communications to Holders ................................ 76
SECTION 703. Reports by Trustee ....................................... 76
SECTION 704. Reports by Company ....................................... 76
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Limitation on Merger, Sale or Consolidation .............. 77
SECTION 802. Successor Substituted .................................... 78
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SECTION 803. Transfer of Subsidiary Assets ........................... 78
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders ...... 79
SECTION 902. Supplemental Indentures with Consent of Holders ......... 80
SECTION 903. Execution of Supplemental
Indentures .............................................. 81
SECTION 904. Effect of Supplemental Indentures ....................... 81
SECTION 905. Conformity with Trust
Indenture Act ........................................... 81
SECTION 906. Reference in Debentures to
Supplemental Indentures ................................. 81
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest .............. 82
SECTION 1002. Maintenance of Office or Agency ......................... 82
SECTION 1003. Money for Debenture Payments to be Held in Trust ........ 83
SECTION 1004. Existence ............................................... 85
SECTION 1005. Maintenance of Properties ............................... 85
SECTION 1006. Payment of Taxes and Other Claims ....................... 85
SECTION 1007. Maintenance of Insurance ................................ 86
SECTION 1008. Limitation on Incurrence of
Additional Indebtedness and
Disqualified Capital Stock .............................. 86
SECTION 1009. Limitation on Restricted Payments ....................... 88
SECTION 1010. Limitations on Dividends and Other
Payment Restrictions Affecting Subsidiaries ............. 89
SECTION 1011. Limitation on Liens Securing Indebtedness ............... 91
SECTION 1012. Limitation on Transactions with Affiliates .............. 91
SECTION 1013. Limitation on Sale of Assets and Subsidiary Stock ....... 92
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SECTION 1014. Limitation on Issuances and Sales
of Capital Stock of Wholly Owned Subsidiaries ........... 97
SECTION 1015. Repurchase of Debentures at the
Option of the Holder Upon a Change
of Control .............................................. 97
SECTION 1016. Investment Company ...................................... 100
SECTION 1017. Limitation on Lines of Business ......................... 100
SECTION 1018. Statement by Officers as to Default; Compliance
Certificates ............................................ 101
SECTION 1019. Waiver of Certain Covenants ............................. 101
ARTICLE ELEVEN
Redemption of Debentures
SECTION 1101. Right of Redemption ..................................... 102
SECTION 1102. Applicability of Article ................................ 102
SECTION 1103. Election to Redeem; Notice
to Trustee .............................................. 103
SECTION 1104. Selection by Trustee of Debentures
to Be Redeemed .......................................... 103
SECTION 1105. Notice of Redemption .................................... 103
SECTION 1106. Deposit of Redemption Price ............................. 104
SECTION 1107. Debentures Payable on Redemption
Date .................................................... 104
SECTION 1108. Debentures Redeemed in Part ............................. 105
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect
Defeasance or Covenant Defeasance ....................... 105
SECTION 1202. Defeasance and Discharge ................................ 106
SECTION 1203. Covenant Defeasance ..................................... 106
SECTION 1204. Conditions to Defeasance or Covenant Defeasance ......... 107
SECTION 1205. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions ........... 110
SECTION 1206. Reinstatement ........................................... 000
Xxxxx X XXXX XX XXXXXXXXX ............................................ A-1
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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 for the benefit of each other and for
the equal and ratable benefit of the Holders of the Company's 11 5/8% Series A
Senior Discount Debentures due 2009 and the class of 11 5/8% Series B Senior
Discount Debentures due 2009 to be exchanged for the 11 5/8% Series A Senior
Discount Debentures due 2009 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
(5) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
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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.
"40-day restricted period" has the meaning set forth in Section 201.
"Accreted Value" means, as of any date of determination, the sum
(rounded to the nearest whole dollar) of (a) the Issue Price and (b) the
portion of the excess of the principal amount at maturity of the Debentures
over the Issue Price which shall have been accreted thereon through such date,
such amount to be so accreted on a daily basis at the rate of 11 5/8% per annum
compounded semi-annually on each February 1 and August 1, commencing on August
1, 1998, from the Issue Date through the date of determination. On and after
February 1, 2003, the Accreted Value of the Debentures shall be equal to the
principal amount at maturity.
"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
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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
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
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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.
"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.
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"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.
"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
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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 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 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 or the
Debentures.
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"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 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 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
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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.
"Corporate Trust Office" means the principal office of the Trustee in at
Xxxxxxx 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
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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.
"Debenture Register" and "Debentures Registrar" have the respective
meanings specified in Section 305.
"Debentures" means, collectively, the Initial Debentures and, when and if
issued as provided in the Registration Rights Agreement, the Exchange
Debentures.
"Debentures Custodian" means the Trustee, as custodian with respect to the
Debentures in global form, or any successor entity thereto.
"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
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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.
"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 Debentures" means the 11 5/8% Senior Discount Debentures due
2009, 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
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
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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 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.
"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.
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"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
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
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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.
"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 11 5/8% Senior Discount Debentures due
2009, 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.
"Initial Purchasers" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Citicorp Securities, Inc., BT Alex.Xxxxx and Xxxxx Securities Inc.
(each an "Initial Purchaser").
"Interest Payment Date" means each February 1 and August 1, commencing
August 1, 2003.
"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.
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"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, 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.
"Issue Price" means $50,521,740.
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"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.
"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.
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"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
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
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26
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.
"Offering Memorandum" means the offering memorandum, dated January 15,
1998, as supplemented on 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;
(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
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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.
"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 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.
"Permitted Indebtedness" means any of the following:
(a) that the Company may incur Indebtedness evidenced 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
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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 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
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(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; (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
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
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30
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 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
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31
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 with the Indenture; (n) Liens securing Indebtedness incurred under
the Credit Agreement 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 orga-
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32
nization or government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a 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
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33
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
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
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preceding any date upon which any determination is to be made pursuant to
the terms of the Debenture or the Indenture; provided that "Reference Period"
with regard to 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 (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
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of clarification and greater certainty, if Indebtedness 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 among the Company and the Initial
Purchasers.
"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 Debenture" 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.
"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.
"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, 2009.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Subsidiary that is subordinated in right of payment by its terms or the terms
of any document or
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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 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
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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 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
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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;
(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
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may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record 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
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the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of 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
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(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 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
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or excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the 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 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
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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.
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.
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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 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").
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 "40-day
restricted period" (within the meaning of Rule 903(c)(3) of Regulation S under
the Securities Act) (the "40-day 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 40-day
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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 40-day restricted period, (i)
beneficial interests in the 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.
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 $89,000,000, except for
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 "11 5/8% Senior
Discount Debentures due 2009" of the Company. Their Stated Maturity shall be
February 1, 2009 and they shall bear interest at 11 5/8% from February 1, 2003
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 August 1, 2003, until the principal thereof is
paid or made available for payment. Until February 1, 2003, no cash interest
will accrue on the Debentures, but the Accreted Value will increase
(representing amortization of original issue discount) between the Issue Date
and February 1, 2003, on a semi-annual bond equivalent basis using a 360-day
year comprised of twelve 30-day months, such
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that the Accreted Value shall be equal to the full principal amount at
maturity of the Debentures on February 1, 2003.
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.
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.
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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.
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.
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 upon receipt of a Company
Order 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
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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
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 obligations 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
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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 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
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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 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
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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 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
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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 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
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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 40-day 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 40-day restricted period,
beneficial interests in Regulation S Permanent Global Debentures may be
transferred to a Person 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 at maturity of the Regulation S Global Debenture
to be decreased and the aggregate principal amount at maturity of the Rule 000X
Xxxxxx Xxxxxxxxx to be increased by the principal amount at maturity 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 at maturity 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 40-day restricted period, beneficial
interests in the Rule 000X Xxxxxx Xxxxxxxxx may not be transferred to any
Person that takes
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delivery thereof in the form of an interest in the Regulation S Temporary
Global Debenture. After the expiration of the 40-day 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 at maturity of the Rule 000X Xxxxxx Xxxxxxxxx to be decreased
and the aggregate principal amount at maturity of the Regulation S Global
Debenture to be increased by the principal amount at maturity 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 equal to the reduction in the aggregate principal
amount at maturity 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
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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 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 (ii), (iii),
(iv) and (v), each Debenture certificate evidencing the Global Debentures
and the
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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 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
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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 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).
(iv) Any Exchange Debentures issued in connection with the
Exchange Offer 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.
(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
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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.
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.
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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 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
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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 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
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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 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
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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.
SECTION 310. Computation of Accretion and Interest.
Accretion and 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
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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 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
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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.
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
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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 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 Significant 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
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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 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.
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Upon any acceleration of maturity of the Debentures, all principal of and
accrued interest and Liquidated Damages, if any, on (if on or after February 1,
2003) or Accreted Value of and accrued Liquidated Damages, if any, on (if prior
to February 1, 2003) the Debentures shall be due and payable immediately.
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 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 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
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(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 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
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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.
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
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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 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.
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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 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.
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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.
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
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(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.
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
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SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
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;
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(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 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.
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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.
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
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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 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.
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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.
(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.
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(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 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.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any 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 July
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15, 2003, 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.
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.
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(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 Holder and to prospective purchasers of Debentures
identified to the Company by an Initial Purchaser 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:
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(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;
(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
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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 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; or
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(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.
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 (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 modify the calculation on the Accreted Value
so as to reduce the amount of Accreted Value of the Debentures or the
rate of accretion on the Debentures, or reduce 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
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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 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.
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Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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
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Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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
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Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(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
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each Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. 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
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or imposed upon the Company or any of its Subsidiaries or upon the income,
profits or property of the Company or any of its Subsidiaries, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any of its Subsidiaries;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 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.
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In addition, the foregoing limitations will not apply to:
(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
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that is contractually subordinate to any other Indebtedness of the Company
unless such Indebtedness is at least as subordinate to the Debentures.
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 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.
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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 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,
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(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 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
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Subsidiary to transfer such agreement or assets, as the case may be.
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
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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 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,
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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 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 with
in 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 other Indebtedness ranking on a parity
with either of the foregoing Indebtedness or other
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
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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, 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;
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(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 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;
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(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, 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
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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 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
Accreted Value thereof plus accrued and unpaid Liquidated Damages, if any, to
the Change
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of Control Purchase Date in the case of any such purchase prior to February 1,
2003, or 101% of the principal amount at Maturity thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to the Change of
Control Purchase Date in the case of any such purchase on or after February 1,
2003 (the "Change of Control Purchase Price"). 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
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
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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.
(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.
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(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 and the
Principal Subsidiary Notes to permit the making of the Change of Control Offer
and the purchase of Debentures pursuant to this 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
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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.
(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, 2003 (other than out of the Net Cash Proceeds of a Public Equity
Offering, as described below). The Debentures will be redeemable at the option
of the Company, in whole or in part, at any time on or after February 1, 2003,
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. At any time on or prior to February 1,
2001, the Company may redeem, on one or more occasions, up to an aggregate of
35% of the aggregate principal amount at Maturity of the Debentures originally
outstanding at a redemption price equal to 111.625% of the Accreted Value
thereof, together with accrued and unpaid Liquidated Damages, if any, to the
date of redemption, with cash from the Net Cash Proceeds to the Company of one
or more Public Equity Offerings; provided, that at least 65% of the aggregate
principal amount of the Debentures originally outstanding remain outstanding
immediately after the occurrence of each such redemption; provided, further,
that such notice of redemption shall be sent within 30 days after the date of
closing of any such Public Equity Offering, and such redemption shall occur
within 60 days after the date such notice is sent.
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
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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 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
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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.
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,
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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.
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
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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 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:
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(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 (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
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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 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.
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(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 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
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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.
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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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)
FOR PURPOSES OF SECTIONS 1272, 1273 and 0000 XX XXX XXXXXX XXXXXX INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND PURSUANT TO SECTION 1.1275-3(b), THIS
DEBENTURE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, THE ISSUE PRICE OF THIS
DEBENTURE IS 56.766% OF ITS PRINCIPAL AMOUNT, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT ON THIS DEBENTURE IS $1129.84 PER $1,000 OF STATED FACE AMOUNT, THE
ISSUE DATE IS JANUARY 27, 1998 AND THE YIELD TO MATURITY IS 11.625%.
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
_____________________
(1) This paragraph should only be added if the Debenture is issued in global
form.
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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 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 40-DAY
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.
__________________
(2) This paragraph 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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LIBERTY GROUP PUBLISHING, INC.
11 5/8% SENIOR DISCOUNT DEBENTURES DUE 2009
CUSIP No. 000000XX0
No. $89,000,000
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 received, hereby promises to pay to ____________________, or registered
assigns, the principal sum of eighty-nine million dollars on February 1, 2009,
and to pay interest thereon from February 1, 2003 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 August 1,
2003, at 11 5/8% 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 13 5/8% 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. Until February 1, 2003, no
cash interest will accrue on the Debentures, but the Accreted Value will
increase (representing amortization of original issue discount) between the
Issue Date and February 1, 2003, on a semi-annual bond equivalent basis using a
360-day year compromised of twelve 30-day months, such that the Accreted Value
shall be equal to the full principal amount at maturity of the Debentures on
February 1, 2003.
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
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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.
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.
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.
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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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This [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 11 5/8% Senior Discount Debentures due 2009 (herein
called the "Debentures"), limited in aggregate principal amount at maturity to
$89,000,000, 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 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, 2003, 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, 2003 is equal to
105.813% of the principal amount of this Debenture; if during the twelve month
period beginning February 1, 2004 is equal to 103.875% of the principal amount
of this Debenture; if during the twelve month period beginning February 1, 2005
is equal to 101.938% 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 February 1, 2003 or the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 11 5/8% 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
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
Notwithstanding the foregoing, at any time prior to February 1, 2001,
the Company may give notice of redemption, on one or more occasions, for up to
an aggregate of 35% of the aggregate principal amount at Maturity of this
Debenture at a Redemption Price equal to 111.625% of the Accreted Value of this
Debenture plus accrued and unpaid Liquidated Damages, if any, to the date of
redemption, with cash from the Net cash Proceeds to the Company of one or more
Public Equity Offerings; provided, that at least 65% of the aggregate
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principal amount of the Debentures originally outstanding remain outstanding
immediately after the occurrence of each such redemption; provided, further,
that such notice of redemption shall be sent within 30 days after the date of
closing of any such Public Equity Offering, and such redemption shall occur
within 60 days after the date such notice is sent.
The Debentures do not have the benefit of any sinking fund obligations.
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.
If an Event of Default shall occur and be continuing, there may be
declared due and payable 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 (if on
or after February 1, 2003) or Accreted Value of and accrued Liquidated Damages,
if any, on (if prior to February 1, 2003) 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
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percentages in aggregate principal amount of the Debentures at the time
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.
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Prior to due presentment of this 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 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.
Accretion and 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 Signature of
Amount of increase in this Global authorized
decrease in Principal Debenture officer of
Principal Amount of following Trustee or
Date of Amount of this this Global such decrease Debentures
Exchange Global 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: 11 5/8% SENIOR DISCOUNT DEBENTURES DUE 2009 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):
[ ] 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.
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: 11 5/8% SENIOR DISCOUNT DEBENTURES DUE 2009 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.
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Annex B
[FORM OF REGULATION S CERTIFICATE FOR HOLDER]
CERTIFICATE TO BE DELIVERED BY THE HOLDER 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: 11 5/8% SENIOR DISCOUNT DEBENTURES DUE 2009 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 its
beneficial interest in the 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 not a 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:_____________________
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[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: 11 5/8% SENIOR DISCOUNT DEBENTURES DUE 2009 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 Note is a U.S. Person (as defined in Section 305); or
[ ] Each of the holders of beneficial interests in the Regulation S
Temporary Global Note has purchased its interest in a transaction that is
exempt from the registration requirements under the Securities Act.
______________________________________
[XXXXXX XXXXXXX TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, AS OPERATOR OF
THE EUROCLEAR CLEARANCE SYSTEM]
[CEDEL BANK, SOCIETE ANONYME
By:___________________________
Date:_____________________
B-2
