INDENTURE Dated as of March 1, 2010
XXXXXX
PUBLISHING GROUP, LLC
and
XXXXXX
PUBLISHING FINANCE CO.,
as
Issuers,
THE
GUARANTORS PARTY HERETO,
as
Guarantors
Floating
Rate Secured Notes due 2014
_________________________
Dated
as of March 1, 2010
_________________________
Wilmington
Trust FSB,
as
Trustee and Collateral Agent
CROSS-REFERENCE TABLE*
|
Trust
Indenture Act Section
|
Indenture
Section
|
|
|
310
|
(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
N.A.
|
|
|
(a)(5)
|
7.10
|
|
|
(b)
|
7.3,7.8,
7.10
|
|
|
(c)
|
N.A.
|
|
|
311
|
(a)
|
7.11
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
|
312
|
(a)
|
2.5
|
|
(b)
|
14.3
|
|
|
(c)
|
14.3
|
|
|
313
|
(a)
|
7.6
|
|
(b)(1)
|
N.A.
|
|
|
(b)(2)
|
7.6
|
|
|
(c)
|
7.6,
14.2
|
|
|
(d)
|
7.6
|
|
|
314
|
(a)(1)
|
N.A.
|
|
(a)(2)
|
N.A.
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
14.5
|
|
|
(b)
|
12.2
|
|
|
(c)(1)
|
14.4
|
|
|
(c)(2)
|
14.4
|
|
|
(c)(3)
|
14.4
|
|
|
(d)
|
12.2,
12.5
|
|
|
(e)
|
14.5
|
|
|
(f)
|
N.A.
|
|
|
315
|
(a)
|
7.2
|
|
(b)
|
7.5,14.2
|
|
|
(c)
|
7.1
|
|
|
(d)
|
7.1
|
|
|
(e)
|
6.12
|
|
|
316
|
(a)(last
sentence)
|
2.9
|
|
(a)(1)(A)
|
6.5
|
|
|
(a)(1)(B)
|
6.4
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
6.7
|
|
|
(c)
|
N.A.
|
|
|
317
|
(a)(1)
|
6.8
|
|
(a)(2)
|
6.10
|
|
|
(b)
|
2.4
|
|
|
318
|
(a)
|
14.1
|
|
(b)
|
N.A.
|
|
|
(c)
|
14.1
|
|
N.A.
means not applicable.
Page
DEFINITIONS
AND INCORPORATION BY REFERENCE
THE
NOTES
REDEMPTION
AND REPURCHASE
|
Section
3.8.
|
[Intentionally
Omitted].
|
44
|
COVENANTS
|
55
|
SUCCESSORS
|
Section
6.9.
|
[Intentionally
Omitted].
|
76
|
TRUSTEE
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
|
86
|
SUBORDINATION
GUARANTEE
COLLATERAL
AND SECURITY
|
102
|
|
103
|
|
Conflicts Between Indenture and Security
Documents.
|
104
|
SATISFACTION
AND DISCHARGE
MISCELLANEOUS
|
104
|
|
107
|
SCHEDULES
|
Guarantors
|
|
|
List of Acceptable Financial
Institutions
|
|
Properties subject to a
Mortgage
|
EXHIBITS
INDENTURE
dated as of March 1, 2010 among Xxxxxx Publishing Group, LLC, a Georgia limited
liability company (the “Company”
or “Xxxxxx
Publishing”), and Xxxxxx Publishing Finance Co., a Georgia corporation,
(“Xxxxxx
Finance,” each an “Issuer”
and together, the “Issuers”)
as joint and several obligors, the Guarantors (as defined herein) listed on
Schedule A hereto, and Wilmington Trust FSB, a Delaware banking corporation, as
trustee (the “Trustee”).
Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders (as defined below) of the Issuers’ Floating
Rate Secured Notes due 2014:
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
Definitions.
|
“Acceptable
Financial Institution” means (a) each of the financial institutions
listed in Schedule B attached hereto and (b) any financial institution organized
under the laws of the United States or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having combined capital and
surplus of not less than $250.0 million.
“Acquired
Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary of Xxxxxx
Publishing or at the time it merges or consolidates with or into Xxxxxx
Publishing or any of its Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of Xxxxxx Publishing or such acquisition,
merger or consolidation.
“Affiliate”
means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such specified Person. For so long as
any individual or entity that is a Permitted Holder is an Affiliate of such
Person, all Permitted Holders shall be deemed to be Affiliates of such
Person. The term “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled”
have meanings correlative of the foregoing.
“Agent”
means any Registrar, Paying Agent or co-registrar.
“Applicable
Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such transfer or exchange.
“Asset
Sale” means any direct or indirect sale, issuance, conveyance, transfer,
lease (other than operating leases entered into in the ordinary course of
business), assignment or other transfer or disposition for value by Xxxxxx
Publishing or any of its Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than Xxxxxx Publishing or a Wholly
Owned Restricted Subsidiary of Xxxxxx Publishing of:
(1) any
Capital Stock of any Restricted Subsidiary of Xxxxxx Publishing; or
(2) any
other property or assets of Xxxxxx Publishing or any Restricted Subsidiary of
Xxxxxx Publishing other than in the ordinary course of business; provided,
however,
that an Asset Sale shall not include:
(a) a
transaction or series of related transactions for which Xxxxxx Publishing or its
Restricted Subsidiaries receive aggregate consideration of less than $1.0
million;
(b) the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of Xxxxxx Publishing as permitted under Section
5.1;
(c) any
Restricted Payment permitted by Section 4.7 or that constitutes a Permitted
Investment;
(d) the
sale or discount, in each case without recourse, of accounts receivable arising
in the ordinary course of business, but only in connection with the compromise
or collection thereof;
(e) disposals
or replacements of obsolete or worn out equipment; or
(f) an
Asset Swap permitted by Section 4.10.
“Asset
Swap” means a concurrent purchase and sale or exchange of Permitted
Business Assets between Xxxxxx Publishing or any of its Restricted Subsidiaries
and another Person; provided,
however,
that any cash received must be applied in accordance with Section
4.10.
“Average
Availability Balance” means the amount that is determined by an Officer
of the Company by dividing
the sum of the “excess availability” under the Working Capital Facility, if any,
at the close of the Business Day on each Business Day during the applicable
calendar month by
the number of Business Days in such calendar month.
“Average
Cash Balance” means the amount that is determined by an Officer of the
Company by dividing
the sum of the Working Capital Balance at the close of the business day on each
Business Day during the applicable calendar month by
the number of Business Days in such calendar month.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for
the relief of debtors.
“Board
of Directors” means, as to any Person, the board of directors (or similar
governing body) of such Person or any duly authorized committee
thereof.
“Board
Resolution” means, with respect to any Person, a copy of a resolution
certified by the Secretary or an Assistant Secretary of such Person to have been
duly adopted by the Board of Directors of such Person and to be in full force
and effect on the date of such certification, and delivered to the
Trustee.
“Business
Day” means any day other than a Saturday, a Sunday or a day on which
banking institutions in the City of New York or Atlanta are authorized or
required by law, regulation or executive order to remain closed. If a
payment date is not on a Business Day at the place where such payment is to be
made, payment may be made at that place on the next succeeding day that is a
Business Day, and no interest shall accrue for the intervening
period.
“Capital
Expenditures” means, with respect to any Person, all expenditures (by the
expenditure of cash or the incurrence of Indebtedness) by such Person during any
measuring period for any fixed assets or improvements or for replacements,
substitutions or additions thereto that have a useful life of more than one year
and that are required to be capitalized under GAAP.
“Capital
Stock” means:
(1) with
respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred
Stock of such Person, and all options, warrants or other rights to purchase or
acquire any of the foregoing; and
(2) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person, and all options, warrants
or other rights to purchase or acquire any of the foregoing.
“Capitalized
Lease Obligation” means, as to any Person, the obligations of such Person
under a lease that are required to be classified and accounted for as capital
lease obligations under GAAP and, for purposes of this definition, the amount of
such obligations at any date shall be the capitalized amount of such obligations
at such date, determined in accordance with GAAP; provided,
that for purposes of this definition, references to “GAAP” shall mean GAAP as in
effect on the Issue Date
“Cash
Equivalents” means:
(1) marketable
direct obligations issued by, or unconditionally guaranteed by, the United
States government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year from the
date of acquisition thereof;
(2) marketable
direct obligations issued by any state of the United States 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, having one of the two highest ratings obtainable from either
S&P, Xxxxx’x or Xxxxx, Inc. (“Fitch”);
(3) commercial
paper maturing no more than one year from the date of creation thereof and, at
the time of acquisition, having a rating of at least A-1 from S&P, at least
P-1 from Xxxxx’x or at least F1 from Fitch;
(4) certificates
of deposit or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States or any state thereof or the District of Columbia or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $250.0 million;
(5) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (1) above entered into with any bank meeting the
qualifications specified in clause (4) above; and
(6) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (1) through (5) above; provided,
however,
that for purposes of the subordination provisions, the term “Cash
Equivalents” shall not include obligations of the type referred to in
clause (5).
“Cash
Flow Adjustments” means the sum of the following for the Issuers and
their Subsidiaries during or for any applicable period and solely to the extent
not accounted for in the Company’s net cash provided by operating activities in
the consolidated cash flow statements for the applicable period: (i)
Capital Expenditures (net of any proceeds of any related financings) permitted
pursuant to this Indenture, (ii) cash payments made in respect of any
acquisitions of any businesses by the Company or any of its Restricted
Subsidiaries permitted by this Indenture (including related fees and expenses
and any earn-out, purchase price adjustment, non-competition, and other
customary cash payments required to be made in respect of such acquisitions),
(iii) cash amounts paid in respect of Permitted Investments (other than all or
any portion of any Permitted Investments held in the form of Cash or Cash
Equivalents), (iv) scheduled principal payments and mandatory and voluntary
prepayments, including prepayment premiums or penalties, of funded Indebtedness
(including Capital Lease Obligations) permitted to be incurred pursuant to this
Indenture, provided that payments or prepayments in respect of any revolving
credit Indebtedness under any revolving credit facility shall not be included in
this clause (iv) to the extent of the amounts borrowed on such revolving credit
facility during the applicable period, (v) Net Cash Proceeds, (vi) Net Loss
Proceeds and (vii) cash interest payments on the Notes (regardless of whether
GAAP would treat such payments as interest expense).
“Cash
Interest Coverage Ratio” means, as at any date of determination, the
ratio of Consolidated EBITDA during the preceding four fiscal quarters to the
Consolidated Interest Expense required to be paid in cash during the preceding
four fiscal quarters; provided,
however,
that interest accrued on any of the Issuers’ 7% Senior Subordinated Notes due
2013 that are not outstanding on the date of determination shall be
disregarded.
“Cash
on Hand” means for any day, the balance of cash and Cash Equivalents held
by the Company and its Subsidiaries.
“Certificated
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.1(d), in substantially the form
of Exhibit A hereto except that such Note shall not bear the Global Note Legend
and shall not have the “Schedule of Exchanges of Interests in the Global Note”
attached thereto.
“Change
of Control” means the occurrence of one or more of the following
events:
(1) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of Xxxxxx
Publishing to any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of the Indenture), other than to the Permitted
Holders;
(2) the
approval by the holders of Capital Stock of Xxxxxx Publishing of any plan or
proposal for the liquidation or dissolution of Xxxxxx Publishing (whether or not
otherwise in compliance with the provisions of this Indenture);
(3) any
Person or Group (other than the Permitted Holders and any entity formed solely
for the purpose of owning Capital Stock of Xxxxxx Publishing) shall become the
owner, directly or indirectly, beneficially or of record, of shares representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of Xxxxxx Publishing;
(4) the
replacement of a majority of the Board of Directors of Xxxxxx Publishing
over a two-year period from the directors who constituted the Board of Directors
of Xxxxxx Publishing at the beginning of such period, and such replacement shall
not have been approved by a vote of at least a majority of the Board of
Directors of Xxxxxx Publishing then still in office who either were members of
such Board of Directors at the beginning of such period or whose election as a
member of such Board of Directors was previously so approved; or
(5) Permitted
Holders shall cease to own, directly or indirectly, beneficially or of record,
shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of Xxxxxx
Publishing.
“Collateral”
has the meaning given to such term in the Security Agreement.
“Collateral
Agent” means Wilmington Trust FSB solely in its capacity as collateral
agent for the Holders and the Tranche B Lender or any other collateral agent for
the Holders and the Tranche B Lender under the Security Documents.
“Commission”
means the Securities and Exchange Commission.
“Common
Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person’s common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
“Company”
means Xxxxxx Publishing Group, LLC, a limited liability company organized under
the laws of the State of Georgia, until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
means such successor Person.
“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum
(without duplication) of:
(1) Consolidated
Net Income; and
(2) to
the extent Consolidated Net Income has been reduced thereby:
(a) all
income taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business);
(b) Consolidated
Interest Expense;
(c) Consolidated
Non-cash Charges less
any non-cash items increasing Consolidated Net Income for such period, all as
determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP; and
(d) non-recurring
cash restructuring charges for such Person and its Restricted Subsidiaries
incurred during calendar years 2009 and 2010 and in connection with (i) this
Indenture, (ii) the Senior Debt Credit Agreement, (iii) the Restructuring
Support Agreement, (iv) the JPM Facility, (v) the Refinanced Debt and (vi) all
negotiations and transactions directly related to (i) through (v)
above.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the
sum of, without duplication:
(1) the
aggregate of the interest expense of such Person and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP,
including without limitation: (a) any amortization of debt discount
and amortization or write-off of deferred financing costs; (b) the net costs
under Interest Swap Obligations; (c) all capitalized interest; and (d) the
interest portion of any deferred payment obligation;
(2) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP; and
(3) an
amount equal to the product of (i) the aggregate dividends paid on Disqualified
Capital Stock during such period and (ii) a fraction, the numerator of which is
one and the denominator of which is one minus such Person’s then effective
combined tax rate, to the extent paid.
“Consolidated
Net Income” means, with respect to any Person, for any period, the
aggregate net income (or loss) of such Person and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided,
however,
that there shall be excluded therefrom (to the extent otherwise not excluded
therefrom):
(1) after-tax
gains from Asset Sales (without regard to the $1.0 million limitation set forth
in the definition thereof) or abandonments or reserves relating
thereto;
(2) after-tax
items classified as extraordinary gains or losses;
(3) the
net income (but not loss) of any Restricted Subsidiary of the referent Person to
the extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by a contract, operation of
law or otherwise;
(4) the
net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a Wholly Owned Restricted Subsidiary of the referent
Person by such Person;
(5) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date;
(6) income
or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued);
(7) in
the case of a successor to the referent Person by consolidation or merger or as
a transferee of the referent Person’s assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets;
and
(8) Permitted
Tax Distributions.
“Consolidated
Net Worth” of any Person means the consolidated stockholders’ or members’
equity of such Person, determined on a consolidated basis in accordance with
GAAP, less (without duplication) amounts attributable to Disqualified Capital
Stock of such Person.
“Consolidated
Non-cash Charges” means, with respect to any Person, for any period, the
aggregate depreciation, amortization and other non-cash expenses of such Person
and its Restricted Subsidiaries reducing Consolidated Net Income of such Person
and its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP
(excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
“Currency
Agreement” means any foreign exchange contract, currency swap agreement
or other similar agreement or arrangement designed to protect Xxxxxx Publishing
or any Restricted Subsidiary of Xxxxxx Publishing against fluctuations in
currency values.
“Default”
means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.
“Depositary”
means, with respect to the Notes issuable in whole or in part in global form,
the Person specified in Section 2.6(b) as the Depositary with respect to the
Notes, until a successor shall have been appointed and become such pursuant to
the applicable provisions of this Indenture, and, thereafter, “Depositary” shall
mean or include such successor.
“Designated
Senior Debt” means (1) Indebtedness under or in respect of the
Refinanced Debt, if applicable, and (2) Indebtedness under or in respect of
the Working Capital Facility.
“Disqualified
Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening
of any event (other than an event which would constitute a Change of Control),
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof (except, in
each case, upon the occurrence of a Change of Control) on or prior to the final
maturity date of the Notes.
“Domestic
Restricted Subsidiary” means a Restricted Subsidiary incorporated or
otherwise organized or existing under the laws of the United States, any state
thereof or any territory or possession of the United States.
“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the pollution
or protection of the environment or the preservation or reclamation of natural
resources, including those relating to the management, release or threatened
release of, or exposure to, any Hazardous Material.
“Event
of Loss” means, with respect to any property, any (i) loss, destruction
or damage of such property, (ii) condemnation, seizure or taking, by exercise of
the power of eminent domain or otherwise, of such property, or confiscation or
requisition of the use of such property or (iii) settlement in lieu of clause
(ii) above.
“Event
of Loss Trigger Date” means the later of (i) the 181st day after receipt
of Net Loss Proceeds from an Event of Loss, or (ii) the 361st day after receipt
of Net Loss Proceeds from an Event of Loss, if Xxxxxx Publishing or the
Restricted Subsidiary, as applicable, has entered into a definitive, binding
agreement on commercially reasonable terms negotiated on an arms-length basis to
apply Net Loss Proceeds to the purchase or construction of assets permitted in
Section 4.21(a).
“Excess
Free Cash Flow” means, for any Excess Cash Flow Period, an amount, if
positive, equal to (i) the amount of net cash provided by operating activities
as shown on Xxxxxx Publishing’s consolidated cash flow statements for such
period plus
(ii) any Working Capital Balance on the relevant Cash Flow Determination Date
resulting from any drawdown under any revolving credit facility, including the
Working Capital Facility, to the extent such Working Capital Balance is not
either included in clause (i) of this definition or used in compliance with the
provisions of this Indenture prior to the delivery of the Officers’ Certificate
required under Section 3.11(b) with respect such Excess Cash Flow Period less
(iii) the Cash Flow Adjustments during such Excess Cash Flow
Period.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto and the rules and regulations promulgated
thereunder.
“Fair
market value” means, with respect to any asset or property, the price
which could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of Xxxxxx Publishing acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of Xxxxxx Publishing delivered to the Trustee.
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, which are in effect as of the Issue Date.
“Global
Notes” means the global Notes substantially in the form of Exhibit A
hereto issued in accordance with Article II hereof.
“Governmental
Authority” means the government of the United States, any other nation or
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee”
means each guarantee of the Notes by each Guarantor.
“Guarantor”
means: (1) each Domestic Restricted Subsidiary of Xxxxxx Publishing
(other than Xxxxxx Finance) as of the Issue Date; and (2) each of Xxxxxx
Publishing’s Restricted Subsidiaries that in the future executes a supplemental
indenture in which such Restricted Subsidiary agrees to be bound by the terms of
this Indenture as a Guarantor; provided,
however,
that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of this Indenture.
“Guarantor
Senior Debt” means, with respect to any Guarantor: the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of, or
guaranteed
by, a Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantee of such Guarantor. Without limiting
the generality of the foregoing, “Guarantor Senior Debt” shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of (including guarantees of the foregoing obligations):
(x) all
monetary obligations of every nature of such Guarantor under, or with respect
to, the Designated Senior Debt, including, without limitation, obligations to
pay principal, premium and interest, reimbursement obligations under letters of
credit, fees, expenses and indemnities (and guarantees thereof);
(y) all
Interest Swap Obligations (and guarantees thereof); and
(z) all
obligations under Currency Agreements (and guarantees thereof);
in each
case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding
the foregoing, “Guarantor Senior Debt” shall not include:
(1) any
Indebtedness of such Guarantor to a Subsidiary of such Guarantor;
(2) Indebtedness
to, or guaranteed on behalf of, any shareholder, director, officer or employee
of such Guarantor or any Subsidiary of such Guarantor (including, without
limitation, amounts owed for compensation) other than a shareholder who is also
a lender (or an Affiliate of a lender) under the Designated Senior
Debt;
(3) Indebtedness
to trade creditors and other amounts incurred in connection with obtaining
goods, materials or services;
(4) Indebtedness
represented by Disqualified Capital Stock;
(5) any
liability for federal, state, local or other taxes owed or owing by such
Guarantor;
(6) that
portion of any Indebtedness incurred in violation of this Indenture provisions
set forth under Section 4.9 (but, as to any such obligation, no such violation
shall be deemed to exist for purposes of this clause (6) if the holder(s) of
such obligation or their representative shall have received an Officers’
Certificate of Xxxxxx Publishing to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness, that
the incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made would not) violate such provisions of this
Indenture);
(7) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to Xxxxxx Publishing;
and
(8) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of such Guarantor.
“Hazardous
Material” means any substance, material or waste in such form or amount
that is classified, regulated or otherwise characterized under any Environmental
Law as hazardous, toxic, a contaminant or a pollutant or by other words of
similar meaning or regulatory effect, including, without limitation, petroleum
or any fraction thereof, asbestos, polychlorinated biphenyls and radioactive
substances in the applicable forms and amounts.
“Holder”
means a Person in whose name a Note is registered on the Registrar’s
books.
“Indebtedness”
means with respect to any Person, without duplication:
(1) all
Obligations of such Person for borrowed money;
(2) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all
Capitalized Lease Obligations of such Person;
(4) all
Obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all Obligations under any title
retention agreement (but excluding trade accounts payable and other accrued
liabilities arising in the ordinary course of business that are not overdue by
90 days or more or are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted);
(5) all
Obligations of such Person for the reimbursement of any obligor on any letter of
credit, banker’s acceptance or similar credit transaction;
(6) guarantees
and other contingent obligations of such Person in respect of Indebtedness
referred to in clauses (1) through (5) above and clause (8) below;
(7) all
Obligations of any other Person of the type referred to in clauses (1) through
(6) which are secured by any lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the fair market value
of such property or asset or the amount of the Obligation so
secured;
(8) all
Obligations under any Currency Agreement and Interest Swap Obligations of such
Person; and
(9) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any.
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 this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Indenture
Documents” means this Indenture, the Notes and the Security
Documents.
“Independent
Director” of any Person means a member of the Board of Directors of such
Person that is “Independent” within the meaning of the New York Stock Exchange
Listed Company Manual.
“Independent
Financial Advisor” means a firm of national status:
(1) which
does not, and whose directors, officers and employees or Affiliates do not, have
a direct or indirect financial interest in Xxxxxx Publishing; and
(2) which,
in the judgment of the Board of Directors of Xxxxxx Publishing, is otherwise
independent and qualified to perform the task for which it is to be
engaged.
“Indirect
Participant” means a Person who holds a beneficial interest in a Global
Note through a Participant.
“Intercreditor
Agreement” means an Intercreditor Agreement, meeting the criteria set
forth in Section 10.1 (b), to be entered into between the Collateral Agent
and agent for the lenders parties to the Refinanced Debt and/or Working Capital
Facility, as amended, supplemented or otherwise modified from time to time in
accordance with the provisions thereof.
“Interest
Swap Obligations” means the obligations of any Person pursuant to any
arrangement with any other Person, whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
“Investment”
means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by,
any
other
Person. “Investment” shall exclude extensions of trade credit by
Xxxxxx Publishing and its Restricted Subsidiaries (to Persons who are not
otherwise Affiliates) on commercially reasonable terms in accordance with normal
trade practices of Xxxxxx Publishing or such Restricted Subsidiary, as the case
may be. If Xxxxxx Publishing or any Restricted Subsidiary of Xxxxxx
Publishing sells or otherwise disposes of any Common Stock of any direct or
indirect Restricted Subsidiary of Xxxxxx Publishing such that, after giving
effect to any such sale or disposition, Xxxxxx Publishing no longer owns,
directly or indirectly, 50% of the outstanding Common Stock of such Restricted
Subsidiary, Xxxxxx Publishing shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the
Common Stock of such Restricted Subsidiary not sold or disposed of.
“Issue
Date” means the date of original issuance of the Notes.
“Issuers”
means the Persons named as Issuers in the introductory paragraph to this
Indenture until a successor Person or Persons shall have become such in
accordance with the applicable provisions of this Indenture, and thereafter
means such successor Person or Persons.
“JPM
Facility” means the Credit Agreement dated as of December 14, 2005 as
amended and supplemented among Xxxxxx Publishing, Xxxxxx Communications, the
lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative
agent.
“LIBOR”
means the rate for deposits in U.S. Dollars for a period comparable to the
relevant interest period which appears on Reuters Screen LIBOR01 Page as of
11:00 a.m., London, England time.
“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof and any agreement to give any
security interest).
“Moody’s”
means Xxxxx’x Investors Service, Inc.
“Xxxxxx
Communications” means Xxxxxx Communications Company, LLC, a Georgia
limited liability company.
“Xxxxxx
Communications Fee” shall have the meaning given such term in the
Services Agreement.
“Mortgages”
means, collectively, one or more instruments of mortgage, deeds of trust,
assignment of rents, security agreement and fixture filing executed by an
Obligor in favor of the Collateral Agent, for the benefit of the Holders and the
Tranche B Lender, and covering the properties and leasehold interests identified
in Schedule C hereto that are to be subject to the Lien of a
mortgage.
“MSTAR
Solutions Fee” shall have the meaning given such term in the Services
Agreement.
“Net
Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the
form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when
received
in the form of cash or Cash Equivalents (other than the portion of any such
deferred payment constituting interest) received by Xxxxxx Publishing or any of
its Restricted Subsidiaries from such Asset Sale net of:
(1) reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions);
(2) taxes
paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing
arrangements;
(3) repayment
of Indebtedness that is secured by the property or assets that are the subject
of such Asset Sale; and
(4) appropriate
amounts to be provided by Xxxxxx Publishing or any Restricted Subsidiary, as the
case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by Xxxxxx Publishing or any
Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
“Net
Cash Proceeds Amount” means the aggregate amount of Net Cash Proceeds
applied to repurchase Notes in a Net Proceeds Offer.
“Net
Loss Proceeds” means the aggregate cash proceeds received by an Issuer or
any of its Restricted Subsidiaries in respect of any Event of Loss, including,
without limitation, insurance proceeds, condemnation awards or damages awarded
by any judgment, net of the direct costs in recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and insurance
adjuster fees and any relocation expenses incurred as a result thereof), and any
taxes attributable to such Event of Loss paid or payable by an Issuer or any
Restricted Subsidiary as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing
arrangements).
“Net
Proceeds Offer Trigger Date” means, with respect to Net Cash Proceeds
that will be applied to a Net Proceeds Offer, the date of the first Business Day
that is 100 days after the consummation of the applicable Asset Sale yielding
such Net Cash Proceeds, or such other earlier date, if any, as the Board of
Directors of Xxxxxx Publishing or of a Restricted Subsidiary determines to apply
such Net Cash Proceeds to a Net Proceeds Offer.
“Note
Custodian” means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
“Notes”
means up to $100,000,000 in aggregate principal amount of the Issuers’ Floating
Rate Secured Notes due 2014, originally issued on the Issue Date, which amount
may be increased to reflect the payments of PIK Interest, as amended or
supplemented from time to time, substantially in the form set forth in Exhibit
A. For purposes of this Indenture, all references to “principal
amount” of the Notes shall include any increase in the principal amount of the
Notes as a result of the payment of PIK Interest.
“Obligations”
means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
“Obligors”
means, collectively, the Issuers and the Guarantors.
“Officer”
means (a) with respect to any Person that is a corporation, the Chairman of its
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
any Vice President, the Chief Financial Officer, the Treasurer, the Controller,
the Secretary or any Assistant Treasurer or Assistant Secretary of such Person
and (b) with respect to any other Person, the individuals selected by such
Person to perform functions similar to those of the officers listed in clause
(a).
“Officers’
Certificate” means, with respect to any Person, a certificate signed by
two Officers of such Person, one of whom must be the Chairman of the Board, the
Chief Executive Officer, the Chief Financial Officer, the Treasurer or any
principal accounting officer of such Person, that meets the requirements of
Sections 14.4 and 14.5.
“Opinion
of Counsel” means an opinion from legal counsel that meets the
requirements of Sections 14.4 and 14.5. The counsel may be an
employee of or in-house counsel to an Issuer or any Subsidiary of Xxxxxx
Publishing and who shall be acceptable to the Trustee.
“Pari
Passu Indebtedness” means any Indebtedness of Xxxxxx Publishing or any
Guarantor that ranks equal in right of payment with the Notes or the Guarantee
of such Guarantor, as the case may be.
“Participant”
means, with respect to the Depositary, a Person who has an account with the
Depositary.
“Permitted
Business” means (i) the ownership and operation of regional, local and
other newspapers and other businesses directly related to the newspaper
operations of Xxxxxx Publishing and its Restricted Subsidiaries, including the
gathering and dissemination of news and information; and (ii) broadcast,
electronic media and other businesses deriving a majority of revenue from
advertising or subscriptions.
“Permitted
Business Assets” means assets used or useful in a Permitted
Business.
“Permitted
Holders” means as of the date of determination (1) Xxxxxxx X. Xxxxxx III,
Xxxxxxx X. Xxxxxx XX, Xxxx X. Xxxxxx, J. Xxxxx Xxxxxx and Xxxxx Xxxxxx Xxxxx;
(2) immediate family members (including spouses and direct descendants) of the
Persons described in clause (1); (3) any trusts created for the benefit of the
Persons described in clauses (1), (2) or (4) or any trust for the benefit of any
such trust; or (4) in the event of the incompetence or death of any of the
Persons described in clauses (1) and (2), such Person’s estate, executor,
administrator, committee or other personal representative or beneficiaries, in
each case who at any particular date shall beneficially own or have the right to
acquire, directly or indirectly, Capital Stock of Xxxxxx
Publishing.
“Permitted
Indebtedness” means, without duplication, each of the
following:
(1) Indebtedness
under the Notes in an aggregate principal amount not to exceed $100.0 million
(plus
the amount of any PIK Interest), pursuant to this Indenture and the Guarantees
(plus any amounts in respect of potential interest payments, including payments
with respect to PIK Interest added to principal, under the Notes that may be
treated as indebtedness in accordance with GAAP);
(2) Indebtedness
incurred pursuant to the Tranche B Loan, the Refinanced Debt, and the Working
Capital Facility;
(3) other
Indebtedness of Xxxxxx Publishing and its Restricted Subsidiaries outstanding on
the Issue Date less the amount of any scheduled amortization payments or
mandatory prepayments, in each case, when actually paid, or permanent reductions
thereon;
(4) Interest
Swap Obligations of Xxxxxx Publishing or any Restricted Subsidiary of Xxxxxx
Publishing covering Indebtedness of Xxxxxx Publishing or any of its Restricted
Subsidiaries; provided,
however,
that such Interest Swap Obligations are entered into to protect Xxxxxx
Publishing and its Restricted Subsidiaries from fluctuations in interest
rates;
(5) Indebtedness
under Currency Agreements; provided,
however,
that (a) in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of Xxxxxx Publishing and
its Restricted Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder and (b) such Currency Agreements are designed to
protect Xxxxxx Publishing or any Restricted Subsidiary of Xxxxxx Publishing
against fluctuations in currency values;
(6) Indebtedness
of a Restricted Subsidiary of Xxxxxx Publishing to Xxxxxx Publishing or to a
Wholly Owned Restricted Subsidiary of Xxxxxx Publishing for so long as such
Indebtedness is held by Xxxxxx Publishing or a Wholly Owned Restricted
Subsidiary of Xxxxxx Publishing or the holder of a Lien permitted under this
Indenture, in each case subject to no Lien held by a Person other than Xxxxxx
Publishing or a Wholly Owned Restricted Subsidiary of Xxxxxx Publishing or the
holder of a Lien permitted under this Indenture; provided,
however,
that if as of any date any Person other than Xxxxxx Publishing or a Wholly Owned
Restricted Subsidiary of Xxxxxx Publishing or the holder of a Lien permitted
under this Indenture owns or holds any such Indebtedness or holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness under this clause (6) by
the issuer of such Indebtedness;
(7) Indebtedness
of Xxxxxx Publishing to a Wholly Owned Restricted Subsidiary of Xxxxxx
Publishing for so long as such Indebtedness is held by a Wholly
Owned
Restricted Subsidiary of Xxxxxx Publishing or the holder of a Lien permitted
under this Indenture, in each case subject to no Lien other than a Lien
permitted under this Indenture; provided,
however,
that (a) any Indebtedness of Xxxxxx Publishing to any Wholly Owned Restricted
Subsidiary of Xxxxxx Publishing that is not a Guarantor is unsecured and
subordinated, pursuant to a written agreement, to Xxxxxx Publishing’s
obligations under this Indenture and the Notes and (b) if as of any date any
Person other than a Wholly Owned Restricted Subsidiary of Xxxxxx Publishing or
the holder of a Lien permitted under this Indenture owns or holds any such
Indebtedness or any Person holds a Lien in respect of such Indebtedness, such
date shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness under this clause (7) by Xxxxxx Publishing;
(8) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business;
provided,
however,
that such Indebtedness is extinguished within two Business Days of
incurrence;
(9) Indebtedness
of Xxxxxx Publishing or any of its Restricted Subsidiaries in respect of
performance bonds, bankers’ acceptances, workers’ compensation claims, surety or
appeal bonds, payment obligations in connection with self-insurance or similar
obligations, and bank overdrafts (and letters of credit in respect thereof) in
the ordinary course of business;
(10) Indebtedness
represented by Capitalized Lease Obligations and Purchase Money Indebtedness of
Xxxxxx Publishing and its Restricted Subsidiaries incurred in the ordinary
course of business not to exceed in the aggregate $5.0 million at any one time
outstanding;
(11) Refinancing
Indebtedness;
(12) Indebtedness
represented by guarantees by Xxxxxx Publishing or its Restricted Subsidiaries of
Indebtedness otherwise permitted to be incurred under this Indenture;
and
(13) Indebtedness
of Xxxxxx Publishing or any Restricted Subsidiary consisting of guarantees,
indemnities or obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets permitted under this
Indenture.
For
purposes of determining compliance with Section 4.9, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of
Permitted Indebtedness described in clauses (1) through (13) above, Xxxxxx
Publishing shall, in its sole discretion, classify (or later reclassify) such
item of Indebtedness in any manner that complies with Section
4.9. Accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Capital Stock in the form of additional shares of the same class of Disqualified
Capital Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of Section 4.9.
“Permitted
Investments” means:
(1) Investments
by Xxxxxx Publishing or any Restricted Subsidiary of Xxxxxx Publishing in any
Person that is or will become immediately after such Investment a Restricted
Subsidiary of Xxxxxx Publishing or that will merge or consolidate into Xxxxxx
Publishing or a Restricted Subsidiary of Xxxxxx Publishing;
(2) Investments
in Xxxxxx Publishing by any Restricted Subsidiary of Xxxxxx Publishing; provided,
however,
that any Indebtedness evidencing such Investment and held by a Restricted
Subsidiary that is not a Guarantor is unsecured and subordinated, pursuant to a
written agreement, to Xxxxxx Publishing’s obligations under the Notes and this
Indenture;
(3) investments
in cash and Cash Equivalents;
(4) loans
and advances to employees, directors and officers of Xxxxxx Publishing and its
Restricted Subsidiaries (other than employees, directors and officers that are
Permitted Holders or Affiliates thereof) in the ordinary course of business for
bona
fide
business purposes not in excess of $100,000 in the aggregate at any one time
outstanding;
(5) Currency
Agreements and Interest Swap Obligations entered into in the ordinary course of
Xxxxxx Publishing’s or its Restricted Subsidiaries’ businesses and otherwise in
compliance with this Indenture;
(6) Investments
in securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers;
(7) Investments
represented by guarantees that are otherwise permitted under this
Indenture;
(8) Investments
the payment for which is Qualified Capital Stock of Xxxxxx Publishing;
and
(9) any
Asset Swap made in accordance with Section 4.10.
“Permitted
Liens” means the following types of Liens:
(1) Liens
for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and as to
which Xxxxxx Publishing or its Restricted Subsidiaries shall have set aside on
its books such reserves as may be required pursuant to GAAP;
(2) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith,
if such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money);
(4) judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately
bonded (if required under applicable law) and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment shall not
have been finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(5) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of Xxxxxx Publishing or any of its Restricted
Subsidiaries;
(6) any
interest or title of a lessor under any Capitalized Lease Obligation; provided,
however,
that such Liens do not extend to any property or assets which is not leased
property subject to such Capitalized Lease Obligation;
(7) Liens
securing Purchase Money Indebtedness incurred or in the ordinary course of
business; provided,
however,
that (a) such Purchase Money Indebtedness shall not exceed the purchase price or
other cost of such property or equipment and shall not be secured by any
property or equipment of Xxxxxx Publishing or any Restricted Subsidiary of
Xxxxxx Publishing other than the property and equipment so acquired and (b) the
Lien securing such Purchase Money Indebtedness shall be created within 90 days
of such acquisition;
(8) Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(9) Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;
(10) Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of Xxxxxx Publishing or any of
its Restricted Subsidiaries, including rights of offset and
set-off;
(11) Liens
securing Interest Swap Obligations which Interest Swap Obligations relate to
Indebtedness that is otherwise permitted under this Indenture;
(12) Liens
securing Indebtedness under Currency Agreements;
(13) Liens
securing Acquired Indebtedness incurred in accordance with Section 4.9; provided,
however,
that:
(a) such
Liens secured such Acquired Indebtedness at the time of and prior to the
incurrence of such Acquired Indebtedness by Xxxxxx Publishing or a Restricted
Subsidiary of Xxxxxx Publishing and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Indebtedness by Xxxxxx
Publishing or a Restricted Subsidiary of Xxxxxx Publishing; and
(b) such
Liens do not extend to or cover any property or assets of Xxxxxx Publishing or
of any of its Restricted Subsidiaries other than the property or assets that
secured the Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of Xxxxxx Publishing or a Restricted Subsidiary of Xxxxxx
Publishing and are no more favorable to the lienholders than those securing the
Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by
Xxxxxx Publishing or a Restricted Subsidiary of Xxxxxx Publishing;
(14) Liens
on assets of a Restricted Subsidiary of Xxxxxx Publishing that is not a
Guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise
permitted under this Indenture;
(15) leases,
subleases, licenses and sublicenses granted to others that do not materially
interfere with the ordinary course of business of Xxxxxx Publishing and its
Restricted Subsidiaries;
(16) banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash
Equivalents on deposit in one or more bank accounts in the ordinary course of
business;
(17) Liens
arising from filing Uniform Commercial Code financing statements regarding
leases; and
(18) Liens
in favor of customs and revenue authorities arising as a matter of law to secure
payments of custom duties in connection with the importation of
goods.
“Permitted
Tax Distributions” means the payment of any dividend or distribution to
the direct or indirect beneficial owners of shares of Capital Stock of Xxxxxx
Publishing in an amount not to exceed the then maximum federal, state and local
income tax liabilities arising from income of Xxxxxx Publishing and its
Restricted Subsidiaries and attributable to them solely as a
result of
Xxxxxx Publishing (and any intermediate entity through which the holder owns
such shares of Capital Stock) being a disregarded limited liability company,
partnership or similar entity for federal income tax purposes.
“Person”
means an individual, partnership, limited liability company, corporation,
unincorporated organization, trust or joint venture, any other business entity
or a governmental agency or political subdivision thereof.
“PIK
Interest” means interest paid on the Notes in the form of increasing the
outstanding principal amount of the Notes or issuing additional
Notes.
“Preferred
Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.
“Purchase
Date” means, with respect to any Note to be repurchased, the date fixed
for such repurchase by or pursuant to this Indenture.
“Purchase
Money Indebtedness” means Indebtedness of Xxxxxx Publishing or its
Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property or
equipment.
“Purchase
Price” means the amount payable for the repurchase of any Note on a
Purchase Date, exclusive of accrued and unpaid interest thereon to the Purchase
Date, unless otherwise specifically provided herein.
“Qualified
Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.
“Redemption
Date” means, with respect to any Note to be redeemed, the date fixed for
such redemption by or pursuant to this Indenture.
“Redemption
Price” means the amount payable for the redemption of any Note on a
Redemption Date, exclusive of accrued and unpaid interest thereon to the
Redemption Date, unless otherwise specifically provided herein.
“Refinance”
means, in respect of any security or Indebtedness, to refinance, extend, renew,
refund, or replace or to issue a security or Indebtedness in exchange or
replacement for, such security or Indebtedness in whole or in
part. “Refinanced”
and “Refinancing”
shall have correlative meanings.
“Refinanced
Debt” means the credit facility or credit facilities entered into by the
Issuers or their Affiliates to effect the Required Refinancing which credit
facility or credit facilities shall be entered into with a commercial bank that
is not an Affiliate of any of the Obligors.
“Refinancing
Indebtedness” means any Refinancing by Xxxxxx Publishing or any
Restricted Subsidiary of Xxxxxx Publishing of Indebtedness incurred in
accordance with Section
4.9
(other than pursuant to clauses (2), (4), (5), (6), (7), (8), (9), (10), (12) or
(13) of the definition of Permitted Indebtedness), in each case that does
not:
(1) result
in an increase in the aggregate principal amount of Indebtedness of such Person
as of the date of such proposed Refinancing (plus the amount of any premium
required to be paid under the terms of the instrument governing such
Indebtedness and plus the amount of reasonable expenses incurred by Xxxxxx
Publishing in connection with such Refinancing); or
(2) create
Indebtedness with: (a) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced; or (b) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided,
however,
that (x) if such Indebtedness being Refinanced is Indebtedness solely of Xxxxxx
Publishing (and is not otherwise guaranteed by a Restricted Subsidiary of Xxxxxx
Publishing), then such Refinancing Indebtedness shall be Indebtedness solely of
Xxxxxx Publishing and (y) if such Indebtedness being Refinanced is subordinate
or junior to the Notes or any Guarantee, then such Refinancing Indebtedness
shall be subordinate to the Notes or such Guarantee, as the case may be, at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.
“Representative”
means the indenture trustee or other trustee, agent or representative in respect
of any Designated Senior Debt; provided,
however,
that if, and for so long as, any Designated Senior Debt lacks such a
representative, then the Representative for such Designated Senior Debt shall at
all times constitute the holders of a majority in outstanding principal amount
of such Designated Senior Debt in respect of any Designated Senior
Debt.
“Required
Noteholders” means Holders of more than 50% of the principal amount of
Notes then outstanding.
“Required
Refinancing” means the Refinancing of the full amount of the Tranche B
Loan that is required within 150 days from the date of this Indenture pursuant
to the terms of this Indenture and the Restructuring Support
Agreement.
“Responsible
Officer” means, when used with respect to the Trustee or the Collateral
Agent, any officer within the corporate trust department of the Trustee or the
Collateral Agent, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Trustee or the Collateral Agent who customarily performs functions similar
to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this
Indenture.
“Restricted
Subsidiary” of any Person means any Subsidiary of such Person which at
the time of determination is not an Unrestricted Subsidiary.
“Restructuring
Support Agreement” means the Restructuring Support Agreement, dated as of
October 30, 2009, entered into by and among the Issuers, the Guarantors and
certain holders of the 7% Senior Subordinated Notes due 2013 signatory
thereto.
“S&P”
means Standard & Poor’s Ratings Group.
“Sale
and Leaseback Transaction” means any direct or indirect arrangement with
any Person or to which any such Person is a party, providing for the leasing to
Xxxxxx Publishing or a Restricted Subsidiary of any property, whether owned by
Xxxxxx Publishing or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by Xxxxxx Publishing or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such
Property.
“Securities
Act” means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto and the rules and regulations promulgated
thereunder.
“Security
Agreement” means a Security and Collateral Agency Agreement, dated the
date hereof, by and among each Obligor, the Tranche B Lender and the Collateral
Agent, in favor of the Collateral Agent, for the benefit of the Holders and the
Tranche B Lender, as amended, supplemented or otherwise modified from time to
time in accordance with the provisions thereof.
“Security
Documents” means, collectively, the Security Agreement, the Mortgages and
all Uniform Commercial Code financing statements, pledge agreements, collateral
assignments, control agreements and other instruments evidencing or creating a
Lien in favor of the Collateral Agent, for the benefit of the Holders and the
Tranche B Lender, in each case, as amended, restated, extended, renewed,
supplemented, or otherwise modified from time to time, in accordance with the
terms thereof.
“Senior
Debt” means the principal of, premium, if any, and interest (including
interest accruing after the commencement of any bankruptcy or other like
proceeding at the rate specified in the applicable Senior Debt whether or not
such interest is an allowed claim in any such proceeding) on any Indebtedness of
Xxxxxx Publishing, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, pursuant to which Obligations under the Indenture, the
Notes and the Indenture Documents are expressly subordinated pursuant to the
Indenture, Intercreditor Agreement or the Security Documents. Without
limiting the generality of the foregoing, “Senior Debt” shall also include the
principal of, premium, if any, interest (including interest accruing after the
commencement of any bankruptcy or other like proceeding at the rate specified in
the applicable Senior Debt whether or not such interest is an allowed claim in
any such proceeding) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):
(1) all
monetary obligations of every nature of Xxxxxx Publishing under, or with respect
to, the Refinanced Debt, and the Working Capital Facility, including, without
limitation, obligations to pay principal, premium and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof);
(2) all
Interest Swap Obligations (and guarantees thereof); and
(3) all
obligations under Currency Agreements (and guarantees thereof); in each
case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding
the foregoing, “Senior Debt” shall not include:
(1) any
Indebtedness of Xxxxxx Publishing to a Subsidiary of Xxxxxx
Publishing;
(2) Indebtedness
to, or guaranteed on behalf of, any shareholder, director, officer or employee
of Xxxxxx Publishing or any Subsidiary of Xxxxxx Publishing (including, without
limitation, amounts owed for compensation);
(3) Indebtedness
to trade creditors and other amounts incurred in connection with obtaining
goods, materials or services;
(4) Indebtedness
represented by Disqualified Capital Stock;
(5) any
liability for federal, state, local or other taxes owed or owing by Xxxxxx
Publishing;
(6) that
portion of any Indebtedness incurred in violation of Section 4.9 (but, as to any
such obligation, no such violation shall be deemed to exist for purposes of this
clause (6) if the holder(s) of such obligation or their representative shall
have received an Officers’ Certificate of Xxxxxx Publishing to the effect that
the incurrence of such Indebtedness does not (or, in the case of revolving
credit indebtedness, that the incurrence of the entire committed amount thereof
at the date on which the initial borrowing thereunder is made would not) violate
such provisions of this Indenture);
(7) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to Xxxxxx
Publishing;
(8) any
Indebtedness which, by its express terms, is subordinated in right of payment to
any other Indebtedness of Xxxxxx Publishing; or
(9) the
Tranche B Loan.
“Senior
Debt Credit Agreement” means that certain Amended and Restated Credit
Agreement, dated as of October 15, 2009, by and among Xxxxxx Publishing, Xxxxxx
Communications, Tranche Manager, LLC, as administrative agent, and the lenders
party thereto, as amended, restated, supplemented, or otherwise modified from
time to time in accordance with the Intercreditor Agreement.
“Services
Agreement” means the Management and Services Agreement, dated as of
August 7, 2003, among Xxxxxx Communications, MSTAR Solutions, LLC and the
Company, as such Services Agreement, as it may be amended or supplemented from
time to time.
“Significant
Subsidiary”, with respect to any Person, means any Restricted Subsidiary
of such Person that satisfies the criteria for a “significant subsidiary” set
forth in Rule 1.02(w) of Regulation S-X under the Exchange Act.
“Subsidiary”,
with respect to any Person, means:
(1) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person; or
(2) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such
Person.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as
in effect on the date on which this Indenture is qualified under the TIA; provided
that in the event the Trust Indenture Act of 1939 is amended after such date,
“TIA” means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
“Total
Leverage Ratio” means, as of any date of determination, with respect to
any Person, the ratio of (a) the sum of (i) the aggregate outstanding
consolidated Indebtedness of such Person for borrowed money (exclusive of trade
payables), net of cash and Cash Equivalents and (ii) except to the extent
included in the previous clause (i), the aggregate liquidation preference of any
Preferred Stock of the Restricted Subsidiaries of such Person (exclusive of such
Preferred Stock, if any, held by such Person), on a consolidated basis in
accordance with GAAP to (b) the Consolidated EBITDA of such Person during the
last four full fiscal quarters ending on or prior to such determination date for
which financial statements are available.
“Tranche
A Loan” means the Tranche A Loan as defined in the Senior Debt Credit
Agreement.
“Tranche
B Lender” means the lender or lenders holding the Tranche B Loan, and
their successors and assigns.
“Tranche
B Loan” means the Tranche B Loan as defined in the Senior Debt Credit
Agreement.
“Trustee”
means the party named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture, and thereafter means the
successor serving hereunder.
“Unrestricted
Subsidiary” of any Person means:
(1) any
Subsidiary of such Person that at the time of determination shall be or continue
to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
The Board
of Directors may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, Xxxxxx
Publishing or any other
Restricted
Subsidiary of Xxxxxx Publishing that is not a Subsidiary of the Subsidiary to be
so designated; provided,
however,
that:
(1) Xxxxxx
Publishing certifies to the Trustee that such designation complies with Section
4.7;
(2) each
Subsidiary to be so designated and each of its Subsidiaries has not at the time
of designation created, incurred, issued, assumed, guaranteed or otherwise
become, and will not after the time of designation take any such action to
become, directly or indirectly liable with respect to any Indebtedness pursuant
to which any lender has recourse to any of the assets of Xxxxxx Publishing or
any of its Restricted Subsidiaries; and
(3) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing.
For
purposes of making the determination of whether any such designation of a
Subsidiary as an Unrestricted Subsidiary complies with Section 4.7, the portion
of the fair market value of the net assets of such Subsidiary of Xxxxxx
Publishing at the time that such Subsidiary is designated as an Unrestricted
Subsidiary that is represented by the interest of Xxxxxx Publishing and its
Restricted Subsidiaries in such Subsidiary, in each case as determined in good
faith by the Board of Directors of Xxxxxx Publishing, shall be deemed to be an
Investment. Such designation will be permitted only if such
Investment would be permitted at such time under Section 4.7.
The Board
of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if:
(1) immediately
after giving effect to such designation, Xxxxxx Publishing is able to incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.9; and
(2) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing.
Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers’ Certificate certifying that such designation
complied with the foregoing provisions.
Xxxxxx
Publishing may not designate Xxxxxx Finance as an Unrestricted
Subsidiary.
“U.S.
Government Securities” means securities which are (i) direct obligations
of the United States for the payment of which its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, 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
or trust company as custodian with respect to any such U.S. Government
Securities or a specific payment of interest
on or
principal of any such U.S. Government Securities held by such custodian for the
account of the holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Securities or the specific payment of interest on or principal of the U.S.
Government Securities evidenced by such depository receipt.
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the sum of the total of
the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
“Wholly
Owned Restricted Subsidiary” of any Person means any Wholly Owned
Subsidiary of such Person which at the time of determination is a Restricted
Subsidiary of such Person.
“Wholly
Owned Subsidiary” of any Person means any Subsidiary of such Person of
which all the outstanding voting securities (other than in the case of a foreign
Subsidiary, directors’ qualifying shares or an immaterial amount of shares
required to be owned by other Persons pursuant to applicable law) are owned by
such Person or any other Wholly Owned Subsidiary of such Person.
“Working
Capital Balance” means, for any day, the aggregate balance of cash and
Cash Equivalents of the Company and its Subsidiaries; provided,
however,
that amounts of Net Cash Proceeds (plus amounts described in causes (2) and (4)
of the definition of Net Cash Proceeds pending their use as contemplated) or Net
Loss Proceeds shall be excluded from the Working Capital Balance.
“Working
Capital Facility” means a secured working capital revolving credit
facility to be entered into by the Company with a commercial bank that is not an
Affiliate of any of the Obligors with a maximum available amount of up to $10.0
million.
|
Other
Definitions.
|
|
Term
|
Defined
in Section
|
|
“Acceleration
Notice”
|
6.2
|
|
“Action”
|
12.8
|
|
“Affiliate
Transaction”
|
4.11
|
|
“Agent
Members”
|
2.6
|
|
“Audited
Adjustment”
|
3.11
|
|
“Cause”
|
4.30
|
|
“Change
of Control
Offer”
|
3.9
|
|
“Change
of Control Payment
Date”
|
3.9
|
-27-
Exhibit
T3C
|
“Covenant
Defeasance”
|
8.3
|
|
“Event
of
Default”
|
6.1
|
|
“Event
of Loss
Offer”
|
4.21
|
|
“Excess
Cash Flow Determination
Date”
|
3.11
|
|
“Excess
Cash Flow Payment
Date”
|
3.11
|
|
“Excess
Cash Flow
Period”
|
3.11
|
|
“Excess
Loss
Amount”
|
4.21
|
|
“Foreign
Person”
|
2.6
|
|
“Funding
Guarantor”
|
11.5
|
|
“incur”
|
4.9
|
|
“Institutional
Accredited
Investors”
|
2.1
|
| "Intercreditor Agreement Form" | 10.1 |
|
“Legal
Defeasance”
|
8.2
|
|
“Net Proceeds
Offer”
|
4.10
|
|
“Notice of
Acceleration”
|
6.2
|
|
“Observer”
|
4.30
|
|
“Offer
to
Purchase”
|
3.10
|
|
“Optional
Redemption”
|
3.7
|
|
“Paying
Agent”
|
2.3
|
|
“Reference
Date”
|
4.7
|
|
“Registrar”
|
2.3
|
|
“Relevant
Meetings”
|
4.30
|
|
“Replacement
Assets”
|
4.10
|
|
“Restricted
Payment”
|
4.7
|
|
“Subject
Property”
|
4.21
|
|
“Surviving
Entity”
|
5.1
|
|
Incorporation
by Reference of Trust Indenture
Act.
|
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture
trustee” means the Trustee;
“obligor”
on the Notes means the Issuers and any successor obligor upon the
Notes.
All other
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA have
the meanings so assigned to them.
|
Rules
of Construction.
|
Unless
the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the
singular;
(e) provisions
apply to successive events and transactions; and
(f) references
to sections of or rules under the Securities Act, the Exchange Act and the TIA
shall be deemed to include substitute, replacement and successor sections or
rules adopted by the Commission from time to time.
|
Acts
of Holders.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an 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 Issuers. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act”
of 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 7.1)
conclusive in favor of the Trustee and the Issuers, 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 the
certificate of any 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 or her the execution thereof. Where
such execution is by an officer of a corporation, a partner of a partnership, or
any other duly authorized individual of another business entity on behalf of
such corporation, partnership or other business entity, such certificate or
affidavit shall also constitute sufficient proof of his or her
authority.
(c) The
ownership of Notes shall be proved by the register maintained by the
Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Note shall bind every future Holder of the same Note and
the Holder of every Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee or the Issuers in reliance thereon, whether or not
notation of such action is made upon such Note.
THE
NOTES
|
Form
and Dating.
|
(a) General. The
aggregate principal amount of Notes that may be authenticated and delivered and
outstanding under this Indenture is limited to $100,000,000 (plus the principal
amount of any additional Notes issued in payment of PIK Interest pursuant to the
terms of the Notes). The Notes shall mature on September 1,
2014. The Notes and the Trustee’s certificate of authentication
relating thereto shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage (but which do not affect the
rights, duties and obligations of the Trustee) in addition to those set forth in
Exhibit A hereto. The notation on each Note relating to the
Guarantees shall be substantially in the form set forth on Exhibit B
hereto. Each Note shall be dated the date of its
authentication. The terms and provisions contained in the Notes and
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture, and the Issuers, the Guarantors, the Holders and the Trustee, upon
the execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. To the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Form
of Notes. Notes issued in global form shall be substantially
in the form of Exhibit A hereto (including the Global Note Legend thereon and
the “Schedule of Exchanges of Interests in the Global Note” attached
thereto). Notes issued in definitive form shall be substantially in
the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto). Each Global Note shall represent such aggregate
principal amount of the outstanding Notes as shall be specified therein, and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions
thereof, transfers of interests therein and payments of PIK
Interest. Any endorsement of a Global Note to reflect the amount of
any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee, in accordance with written
instructions given by the Holder thereof as required by Section 2.6(f)
hereof.
(c) Book-Entry
Provisions. With respect only to Global Notes deposited with
the Trustee, as custodian for the Depositary, Participants and
Indirect Participants shall have no rights under this Indenture or any Global
Note with respect to any Global Note held on their behalf by the Depositary or
by the Trustee as custodian for the Depositary, and the Depositary shall be
treated by the Issuers, the Trustee and any agent of the Issuers or the Trustee
as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
(d) Certificated
Securities.
(i) The
Issuers shall issue Certificated Notes to all owners of beneficial interests in
Global Notes if: (1) at any time the Depositary notifies the Issuers
that it is unwilling or unable to continue to act as Depositary for the Global
Notes or if at any time the Depositary shall no longer be eligible to act as
such because it ceases to be a clearing agency registered under the Exchange
Act, and, in either case, the Issuers shall not have appointed a successor
Depositary within 120 days after the Issuers receive such notice or become aware
of such ineligibility or (2) the Issuers, at their option, determine that the
Global Notes shall be exchanged for Certificated Notes and deliver a written
notice to such effect to the Trustee. Upon the occurrence of any of
the events set forth in clauses (1) or (2) above, the Issuers shall execute,
and, upon receipt of an authentication order in accordance with Section 2.2, the
Trustee shall authenticate and deliver, Certificated Notes, in authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Notes in exchange for such Global Notes. Upon the exchange
of a Global Note for Certificated Notes, such Global Note shall be cancelled by
the Trustee or an agent of the Trustee.
(ii) The
Issuers shall issue Certificated Notes to a Holder of a Global Note (or such
party designated by such Holder) in exchange for such Global Note, upon written
request from a Holder of a Global Note if a Default or Event of Default shall
have occurred and be continuing. Upon the occurrence of the
foregoing, the Issuers shall execute, and, upon receipt of an authentication
order in accordance with Section 2.2, the Trustee shall authenticate and
deliver, Certificated Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Note or portion of
a Global Note being exchanged. Upon the exchange of all or a portion
of a Global Note for Certificated Notes, such Global Note shall be cancelled or
correspondingly reduced by the Trustee or an agent of the Issuers or the
Trustee. In the event that the Certificated Notes are not issued to a
party designated by such Holder promptly after the Issuers have received a
request from such Holder, the Issuers expressly acknowledge, with respect to the
right of any Holder to pursue a remedy pursuant to this Indenture, the right of
any such party designated by such Holder to pursue such remedy with respect to
the portion of the Global Note that represents such party’s beneficial interest
as if such Certificated Notes had been issued.
(iii) Certificated
Notes issued in exchange for a Global Note pursuant to this Section
2.1(h) shall be registered in such names and in such authorized
denominations as the Depositary shall instruct the Trustee. The
Issuers shall, or shall cause the Trustee to, deliver such Certificated Notes to
or as directed by the Persons in whose names such Certificated Notes are so
registered or to the Depositary.
Two
Officers of each of the Issuers shall sign the Notes for the Issuers by manual
or facsimile signature.
If an
Officer whose signature is on a Note was an Officer at the time of such
execution but no longer holds that office or position at the time a Note is
authenticated, the Note shall nevertheless be valid. Each Guarantor
shall execute a Guarantee in the manner set forth in Section 11.7.
A Note
shall not be valid until authenticated by the manual signature of the
Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The
Trustee, upon a written order of the Issuers signed by two Officers of each of
the Issuers, together with the other documents required by Sections 14.4 and
14.5, shall authenticate Notes for original issue on the Issue Date in the
aggregate principal amount not to exceed $100.0 million. Such written
order of the Issuers shall specify the amount of Notes to be authenticated and
the date on which the original issue of Notes is to be
authenticated. The Trustee shall authenticate and deliver any
additional Notes (or increases in the principal amount of any Notes) as a result
of a payment of PIK Interest, for an aggregate principal amount specified in
such authentication order for such additional Notes (or increases in the
principal amount of any Notes) issued or increased hereunder, for original issue
upon receipt of an authentication order.
The
Trustee may appoint an authenticating agent acceptable to the Issuers to
authenticate Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has
the same rights as the Trustee to deal with the Issuers or with any Affiliate of
the Issuers.
On any
interest payment date on which the Issuers pay PIK Interest with respect to a
Global Note in accordance with the terms of the Notes, the Company shall cause
the principal amount of the Global Note to be increased by an amount
equal to the interest payable, rounded up to the nearest $1.00, for the relevant
interest period on the principal amount of such Global Note as of the relevant
record date for such interest payment date, to the credit of the Holders on such
record date, pro
rata
in accordance with their interests, and an adjustment shall be made on the books
and records of the Trustee (if it is then the Note Custodian for such Global
Note) with respect to such Global Note, by the Trustee or the Note Custodian, to
reflect such increase. On any interest payment date on which the
Issuers pay PIK Interest by issuing additional Notes, the principal amount of
any such Notes issued to any Holder, for the relevant interest period as of the
relevant record date for such interest payment date, shall be rounded up to the
nearest $1.00. Each additional Note shall be an additional obligation
of the Issuers and the Guarantors and shall be governed by, and entitled to the
benefits of, this Indenture and shall be subject to the terms of this Indenture
(including the Guarantees), shall rank pari
passu
with and be subject to the same terms (including the rate of interest from time
to time payable thereon) as all other Notes (except, as the case may be, with
respect to the issuance date and aggregate principal amount), and shall have the
benefit of the Liens securing the Notes.
The Notes
shall be issued in integral multiples of $1.00 (in each case with a minimum
denomination of at least $1.00).
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Registrar
and Paying Agent.
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The
Issuers shall maintain an office or agency where Notes may be presented or
surrendered for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Notes may be presented for payment (the “Paying
Agent”). The Registrar shall keep or cause to be kept a
register of the Notes and of their transfer and exchange. At the
option of the Issuers, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, provided
that payment by wire transfer of immediately available funds will be required
with respect to principal, Redemption Price and Purchase Price of, and interest
on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Trustee or the Paying
Agent. The Issuers may appoint one or more co-registrars and one or
more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying
agent. The Issuers may change any Paying Agent or Registrar without
notice to any Holder. The Issuers shall notify the Trustee in writing
of the name and address of any Paying Agent not a party to this
Indenture. If the Issuers fail to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The
Issuers may act as Paying Agent or Registrar so long as no Event of Default has
occurred and is continuing. The Depositary shall, by acceptance of a
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book-entry system maintained by the Depositary
(or its agent), and that ownership of a beneficial interest in the Note shall be
required to be reflected in a book entry.
The
Issuers initially appoint the Trustee to act as the Registrar and Paying Agent
and to act as Note Custodian with respect to the Global Notes, until such time
as the Trustee has resigned or a successor has been appointed.
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Paying
Agents To Hold Money in Trust.
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The
Issuers shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of any
default by the Issuers in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it relating to the Notes to the Trustee. The Issuers at any time
may require a Paying Agent to pay all money held by it relating to the Notes to
the Trustee and account for any such money disbursed. Upon payment
over to the Trustee, the Paying Agent (if other than an Issuer) shall have no
further liability for such money. If an Issuer acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of the
Holders all money relating to the Notes held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to
an Issuer, the Trustee shall serve as Paying Agent for the Notes.
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Holder
Lists
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The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with TIA § 312(a). If the Trustee is not
the Registrar, the Issuers shall furnish or cause to be furnished to the Trustee
at least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes, and the Issuers shall otherwise comply with TIA
§ 312(a).
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Section 2.6.
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Transfer
and Exchange.
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(a) Transfer
and Exchange Generally: Book Entry Provisions. Upon
surrender for registration of transfer of any Note to the Registrar, and
satisfaction of the requirements for such transfer set forth in this Section
2.6, the Issuers shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Notes
of any authorized denominations and of a like aggregate principal amount and
bearing such restrictive legends as may be required by this
Indenture.
Notes may
be exchanged for other Notes of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at any
such office or agency maintained by the Issuers pursuant to Section
4.2. Whenever any Notes are so surrendered for exchange, the Issuers
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Holder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Issuers and the Registrar, and the Notes shall be
duly executed by the Holder thereof or his attorney duly authorized in
writing.
(b) The
Depositary. The Depositary shall be a clearing agency
registered under the Exchange Act. The Issuers initially appoint The
Depository Trust Company to act as Depositary with respect to the Global
Note. Notes in certificated form issued in exchange for all or a part
of a Global Note pursuant to this Section 2.6 shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to instructions
from its Participants or Indirect Participants or otherwise, shall instruct the
Trustee. Upon execution and authentication, the Trustee shall deliver
such Certificated Notes to the persons in whose names such Notes in certificated
form are so registered.
(c) Transfer
and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Issuers for Certificated Notes as provided in Section
2.1(d)(i). Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.7 and Section 2.10. Except as
otherwise provided herein, every Note authenticated
and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.6 or Sections 2.7 or Section 2.10, shall be
authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than
as provided in Section 2.1(d)(i) and this Section 2.6(c), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.6(d) or (e). Neither the Issuers nor the Trustee will be
liable for any delay by a Holder of a Global Note or the Depositary in
identifying the beneficial owners of Notes, except as a result of the Issuers’
or Trustee’s own negligent action, negligent failure to act or own willful
misconduct, as the case may be. In the absence of bad faith on their
part, the Issuers and the Trustee may conclusively rely on, and will be
authorized and protected in relying on written instructions from the Holder of a
Global Note or the Depositary for all purposes under this
Indenture.
(d) Transfer
and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in
Global Notes may be subject to restrictions on transfer to the extent required
by the Securities Act.
Beneficial
interests in any Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in a Global Note, in accordance
with the Applicable Procedures. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.6(d).
(e) Transfer
or Exchange of Beneficial Interests for Certificated Notes. The
holder of a beneficial interest in a Global Note may exchange such beneficial
interest for a Certificated Note or transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Certificated Note only upon
the occurrence of the events described in Section 2.1(d)(ii), in which event
such owner of such beneficial interest shall instruct the Depositary (or shall
cause the appropriate Participant to direct the Depositary) in accordance with
the Applicable Procedures to instruct the Trustee to reduce the aggregate
principal amount of the Global Note by the applicable amount of such exchange or
transfer and to issue in exchange therefore a Certificated Note or Notes in such
aggregate amount and registered as provided in such instruction; and upon the
Trustee’s receipt of such instruction from the Depositary (or from the
applicable Participant or beneficial owner pursuant to the Depositary’s proxy
procedures), the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.6(i), and
the Issuers shall execute and the Trustee shall authenticate and deliver, in
both cases in accordance with Section 2.2, to the Person designated in such
instruction a Certificated Note in the appropriate principal
amount. Any Certificated Note issued in exchange for a beneficial
interest pursuant to this Section 2.6(e) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee
shall mail or deliver such Certificated Notes to the Persons in whose names such
Notes are so registered.
(f) Transfer
and Exchange of Certificated Notes for Beneficial Interests. A Holder
of a Certificated Note may exchange such Note for a beneficial interest in a
Global Note or transfer such Certificated Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Global Note at any
time. Upon receipt of a request for such an exchange or transfer
together with surrender of the Certificated Note to be exchanged or transferred
(and, accompanied by a written instrument or instruments of transfer as provided
in Section 2.6(g), and subject to the Applicable Procedures), the Trustee shall
cancel the applicable Certificated Note and increase or cause to be increased
the aggregate principal amount of one of the Global Notes pursuant to Section
2.6(i).
(g) Transfer
and Exchange of Certificated Notes for Certificated
Notes. Upon request by a Holder of Certificated Notes and such
Holder’s compliance with the provisions of this Section 2.6(g), the Registrar
shall register the transfer or exchange of Certificated Notes. Prior
to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Certificated Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder must provide any
additional certifications, documents and information, as applicable, reasonably
requested by the Issuers to demonstrate compliance by such Holder with
applicable law.
(h) Legends. Each
Global Note shall bear the following legend on the face thereof:
THIS NOTE
IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE
BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
(i) Cancellation
and/or Adjustment of Global Notes. At such time as all
beneficial interests in Global Notes have been exchanged for Certificated Notes,
redeemed, repurchased or cancelled, all Global Notes shall be returned to, or
retained and cancelled by, the Trustee in accordance with Section
2.11. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for Certificated Notes, redeemed,
repurchased or cancelled, the principal amount of Notes represented by such
Global Notes shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or the Note Custodian, at the direction of the
Trustee, to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee upon its receipt of instructions from the Holder thereof or
by the Depositary at the direction of the Trustee to reflect such
increase.
(j) General
Provisions Relating to Transfers and Exchanges.
(i) To
permit registrations of transfers and exchanges, the Issuers shall execute and
the Trustee shall authenticate Certificated Notes and Global Notes upon the
Issuers’ order or at the Registrar’s request.
(ii) No
service charge shall be made to a Holder for any registration of transfer, fee
or exchange, but the Issuers may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.6 and 9.5).
(iii) The
Registrar shall not be required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(iv) All
Certificated Notes and Global Notes issued upon any registration of transfer or
exchange of Certificated Notes or Global Notes shall be the valid obligations of
the Issuers, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Certificated Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The
Issuers shall not be required:
(a) to
issue, to register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.2 and ending at the close of business on
the day of selection; or
(b) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part; or
(c) to
register the transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.
(vi) Prior
to due presentment of the registration of a transfer of any Note, the Trustee,
any Agent and the Issuers may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of all payments
with respect to such Notes, and none of the Trustee, any Agent or the Issuers
shall be affected by notice to the contrary.
(vii) The
Trustee shall authenticate Certificated Notes and Global Notes in accordance
with the provisions of Section 2.2.
(viii) Each
Holder of a Note agrees to indemnify the Issuers and the Trustee against any
liability that may result from the transfer, exchange or assignment of such
Holder’s Note in violation of any provision of this Indenture and/or applicable
United States federal or state securities law.
(ix) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among agent members or beneficial owners of
interests in any global security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
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Replacement
Notes.
|
If any
mutilated Note is surrendered to the Trustee or either of the Issuers or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Issuers shall issue and the Trustee, upon receipt of an
authentication order in accordance with Section 2.2, shall authenticate a
replacement Note if the Trustee’s requirements for replacement of Notes are
met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Trustee and the
Issuers each may charge such Holder for their expenses in replacing such
Note.
Every
replacement Note is an additional Obligation of the Issuer and shall be entitled
to all of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
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Outstanding
Notes
|
The Notes
outstanding at any time are all the Notes that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected in
accordance with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.9, a Note does not
cease to be outstanding because an Issuer or any of its Affiliates holds the
Note.
If a Note
is replaced pursuant to Section 2.7, it shall cease to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser for value.
If the
principal amount of any Note is considered paid under Section 4.1, it ceases to
be outstanding and interest on it ceases to accrue.
If the
Paying Agent (other than an Issuer, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes shall be deemed to
be no longer outstanding and shall cease to accrue interest.
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Treasury
Notes.
|
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuers, the
Guarantors or by any Affiliate thereof shall be considered not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. The Issuers agree to notify the Trustee of the existence
of any such treasury Notes or Notes owned by an Issuer, any Guarantor or an
Affiliate thereof.
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Temporary
Notes.
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Until
Certificated Notes are ready for delivery, the Issuers may prepare and the
Trustee, upon receipt of an authentication order in accordance with Section 2.2,
shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Certificated Notes, but may have such variations as
the Issuers consider appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate Global Notes or Certificated
Notes in exchange for temporary Notes, as applicable.
Holders
of temporary Notes shall be entitled to all of the benefits of this
Indenture.
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Cancellation.
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The
Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the
Registrar or Paying Agent, and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of all cancelled Notes in accordance with the Trustee’s usual
procedures.
The
Trustee shall maintain a record of all cancelled Notes. All cancelled
Notes shall be delivered to the Issuers. Subject to Section 2.7, the
Issuers may not issue new Notes to replace Notes that have been paid or that
have been delivered to the Trustee for cancellation.
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Section 2.12.
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Defaulted
Interest.
|
If the
Issuers default in a payment of interest on the Notes, the Issuers shall pay the
defaulted interest in any lawful manner plus,
to the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.1. The Issuers shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Issuers shall
fix or cause to be fixed each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the related
interest payment date for such defaulted interest. At least 15 days
before the special record date, the Issuers (or, upon the written request of the
Issuers, the Trustee in the name and at the expense of the Issuers) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related interest payment date and the amount of such interest to be
paid.
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Persons
Deemed Owners.
|
Prior to
due presentment of a Note for registration of transfer and subject to Section
2.12, the Issuers, the Trustee, any Paying Agent, any co-registrar and any
Registrar may deem and treat the person in whose name any Note shall be
registered upon the register of Notes kept by the Registrar as the absolute
owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Issuers, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Issuers, the Trustee, any Paying Agent, any
co-registrar or any Registrar shall be affected by any notice to the
contrary.
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CUSIP
Numbers.
|
The
Issuers in issuing the Notes may use a “CUSIP” number, and if so, the Trustee
shall use the CUSIP number in notices of redemption or exchange as a convenience
to Holders; provided
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Issuers shall promptly
notify the Trustee of any change to the CUSIP numbers.
REDEMPTION
AND REPURCHASE
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Notices
to Trustee.
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If the
Issuers elect to redeem Notes pursuant to the provisions of Section 3.7, they
shall furnish to the Trustee, at least 30 days but not more than 60 days before
the Redemption Date (unless a shorter notice period shall be satisfactory to the
Trustee), an Officers’ Certificate setting forth the Redemption Date, the
principal amount of Notes to be redeemed and the Redemption Price.
If the
Issuers are required to offer to repurchase Notes pursuant to the provisions of
Section 3.9, 4.10, or 4.21, they shall notify the Trustee in writing, at least
45 days but not more than 60 days before the Purchase Date, of the Section of
this Indenture pursuant to which the repurchase shall occur, the Purchase Date,
the principal amount of Notes required to be repurchased and the Purchase Price
and shall furnish to the Trustee an Officers’ Certificate to the effect that (a)
the Issuers are required to make or have made a Change of Control Offer, an
Event of Loss Offer or a Net Proceeds Offer, as the case may be, and
(b) the conditions set forth in Section 3.9, 4.10 or 4.21 as the case may
be, have been satisfied.
If the
Registrar is not the Trustee, the Issuers shall, concurrently with each notice
of redemption or repurchase, cause the Registrar to deliver to the Trustee a
certificate (upon which the Trustee may rely) setting forth the principal
amounts of Notes held by each Holder.
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Selection
of Notes.
|
Except as
set forth below, if less than all of the Notes are to be redeemed or
repurchased, the Trustee shall select the Notes or portions thereof to be
redeemed or repurchased either in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed;
or on a pro
rata basis, by lot or by such method as the Trustee shall deem fair and
appropriate. In the event of partial redemption by lot, the
particular Notes or portions thereof to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
Redemption Date by the Trustee from the outstanding Notes not previously called
for redemption.
If less
than all of the Notes tendered are to be repurchased pursuant to the provisions
of Section 3.10, the Trustee shall select the Notes or portions thereof to be
repurchased in compliance with Section 3.10. In the event of partial
repurchase by lot, the particular Notes or portions thereof to be repurchased
shall be selected at the close of business of the last Business Day prior to the
Purchase Date.
The
Trustee shall promptly notify the Issuers in writing of the Notes or portions
thereof selected for redemption or repurchase and, in the case of any Note
selected for partial redemption or repurchase, the principal amount thereof to
be redeemed or repurchased. Notes and portions thereof selected shall
be in amounts of $1,000 or integral multiples of $1,000; except that if all of
the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be
redeemed. No Notes of a principal amount of $1,000 or less shall be
redeemed in part; provided,
that in the case of a redemption pursuant to Section 3.11, the principal amount
of Notes to be redeemed or repurchased shall be in amounts of $1.00
or integral multiples of $1.00.
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Notice
of Optional Redemption.
|
In the
event Notes are to be redeemed pursuant to Section 3.7, at least 30 days but not
more than 60 days before the Redemption Date, the Issuers shall mail a notice of
redemption to each Holder by first-class mail at its registered address, whose
Notes are to be redeemed in whole or in part, with a copy to the
Trustee. In the event Notes are to be redeemed pursuant to Section
3.11, as soon as practicable following the delivery to the Trustee of the
Officers’ Certificate required by Section 3.11(b), the Issuers shall mail a
notice of redemption to each Holder by first-class mail at its registered
address, whose Notes are to be redeemed in whole or in part, with a copy to the
Trustee.
The
notice shall identify the Notes or portions thereof to be redeemed (including
the CUSIP number, if any) and shall state:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) if
any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the Redemption Date, upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed portion
will be issued in the name of the Holder thereof upon cancellation of the
original Note;
(d) the
name and address of the Paying Agent;
(e) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price, and, unless the Redemption Date is after a record date and
or before the succeeding interest payment date, accrued interest thereon to the
Redemption Date;
(f) that,
unless the Issuers default in making the redemption payment, interest on Notes
called for redemption will cease to accrue on and after the Redemption Date, and
the only remaining right of the Holders of such Notes is to receive payment of
the Redemption Price and, unless the Redemption Date is after a record date and
on or before the succeeding interest payment date, accrued interest thereon to
the Redemption Date upon surrender to the Paying Agent of the Notes
redeemed;
(g) if
fewer than all the Notes are to be redeemed, the identification of the
particular Notes (or portions thereof) to be redeemed, as well as the aggregate
principal amount of the Notes to be redeemed and the aggregate principal amount
of Notes to be outstanding after such partial redemption;
(h) the
paragraph of the Notes pursuant to which the Notes called for redemption are
being redeemed; and
(i) that
no representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Notes and that reliance may be
placed only on the other identification numbers printed on the
Notes.
At the
Issuers’ request, the Trustee shall give the notice of redemption in the
Issuers’ name and at their expense; provided
that the Issuers shall deliver to the Trustee, at least 40 days prior to the
Redemption Date (or as soon as practicable in the event of a redemption under
Section 3.11), an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
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Effect
of Notice of Redemption.
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Once
notice of redemption is mailed, Notes or portions thereof called for redemption
become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Notes or portions
thereof shall be paid at the Redemption Price, plus
accrued interest to the Redemption Date; provided,
however,
that installments of interest which are due and payable on or prior to the
Redemption Date shall be payable to the Holders of such Notes, registered as
such, at the close of business on the relevant record date for the payment of
such installment of interest. On or after the Redemption Date,
interest will cease to accrue on Notes or portions thereof called for redemption
as long as the Issuers have deposited with the Paying Agent funds in
satisfaction of the applicable redemption price.
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Deposit
of Redemption Price or Purchase
Price.
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On or
before 10:00 a.m. Eastern Time on each Redemption Date or Purchase Date, the
Issuers shall irrevocably deposit with the Trustee or with the Paying Agent
money sufficient to pay the aggregate amount due on all Notes to be redeemed or
repurchased on that date, including, without limitation, any accrued and unpaid
interest to the Redemption Date or Repurchase Date. Upon written
request by the Issuers, the Trustee or the Paying Agent shall promptly return to
the Issuers any money not required for that purpose.
Unless
the Issuers default in making such payment, interest on the Notes to be redeemed
or repurchased will cease to accrue on the applicable Redemption Date or
Purchase Date, whether or not such Notes are presented for
payment. If any Note called for redemption shall not be so paid upon
surrender because of the failure of the Issuers to comply with the preceding
paragraph, interest will be paid on the unpaid principal, from the applicable
Redemption Date or Purchase Date until such principal is paid, and on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.1.
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Notes
Redeemed or Repurchased in Part.
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Upon
surrender of a Note that is redeemed or repurchased in part, the Issuers shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Issuers a new Note equal in principal amount to the portion of the Note
surrendered that is not to be redeemed or repurchased; provided, however, that
in lieu of issuing a new Global Note, the Issuers may authorize the Trustee or
the Note Custodian to reduce the aggregate principal amount of the Global Note
by endorsement in accordance with Section 2.1(b).
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Optional
Redemption.
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The
Issuers may redeem the Notes at their option, in whole or in part (an “Optional
Redemption”), upon not less than 30 nor more than 60 days’ notice, at the
redemption prices set forth in the Notes.
In
addition, the Issuers must pay accrued and unpaid interest on the Notes redeemed
to the date of redemption. Any redemption pursuant to this Section
3.7 shall be made pursuant to the provisions of Sections 3.1 through
3.6.
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[Intentionally
Omitted].
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Repurchase
upon Change of Control Offer.
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If a
Change of Control occurs, the Issuers shall make a binding offer (the “Change
of Control Offer”) to each Holder to repurchase all or any part (equal to
$1,000 or an integral multiple of $1,000) of that Holder’s Notes pursuant to the
Change of Control Offer at a purchase price, in cash, equal to 101% of the
aggregate principal amount of Notes repurchased, plus accrued and unpaid
interest on the Notes repurchased, to the Purchase Date (subject to the right of
Holders of record on the relevant regular record date to receive interest due on
the relevant interest payment date).
The
Change of Control Offer shall remain open for a period from the date of the
mailing of the notice of the Change of Control Offer described in the next
paragraph until a date determined by the Issuers which is at least 30 but no
more than 60 days from the date of mailing of such notice, except to the extent
that a longer period is required by applicable law (such date, or the date of
the last day of any such required longer period, the “Change
of Control Payment Date”). On the Purchase Date, which shall
be no later than the latest permissible Change of Control Payment Date, the
Issuers shall purchase the principal amount of Notes properly tendered in
response to the Change of Control Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are
made.
Within 30
days following any Change of Control, the Issuers must send, by first class
mail, a notice to each of the Holders, with a copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. The Change of
Control Offer shall be made to all Holders. The notice shall
state:
(a) the
transaction or transactions that constitute the Change of Control, providing
information, to the extent publicly available, regarding the Person or Persons
acquiring control, and stating that the Change of Control Offer is being made
pursuant to this Section 3.9 and that, to the extent lawful, all Notes tendered
will be accepted for payment;
(b) the
Purchase Price, the Change of Control Payment Date, and the Purchase
Date;
(c) that
any Note not properly tendered or otherwise not accepted for repurchase will
continue to accrue interest;
(d) that,
unless the Issuers default in the payment of the amount due on the Purchase
Date, all Notes or portions thereof accepted for repurchase pursuant to the
Change of Control Offer shall cease to accrue interest after the Purchase
Date;
(e) that
Holders electing to have a Note purchased pursuant to the Change of Control
Offer will be required to surrender the Note, with the form entitled “Option of
Holder To Elect Purchase” on the reverse of the Notes completed, or transfer by
book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers,
or a Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment
Date;
(f) that
Holders will be entitled to withdraw their election if the Issuers, the
Depositary or the Paying Agent, as the case may be, receives, not later than the
Purchase Date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for repurchase, and a statement
that such Holder is withdrawing his election to have the Notes redeemed in whole
or in part; and
(g) that
Holders whose Notes are being repurchased only in part will be issued new Notes
equal in principal amount to the portion of the Notes tendered (or transferred
by book-entry transfer) that is not to be repurchased, which portion must be
equal to $1,000 in principal amount or an integral multiple
thereof.
Prior to
the mailing of the notice referred to above, but in any event within 30 days
following any Change of Control, the Issuers covenant to:
(1) repay
in full and terminate all commitments under all Indebtedness constituting Senior
Debt the terms of which require repayment upon a Change of Control, or offer to
repay in full and terminate all commitments under all Indebtedness constituting
Senior Debt and to repay the Indebtedness owed to (and terminate the commitments
of) each lender which has accepted such offer; or
(2) obtain
the requisite consents under the Senior Debt to permit the repurchase of the
Notes as provided above.
The
Issuers shall first comply with the covenant in the immediately preceding
paragraph before they shall be required to either repurchase Notes or send the
notice pursuant to the provisions described above. The Issuers’
failure to comply with the covenant described in the immediately preceding
paragraph (and any failure to send the notice referred to in the second
preceding paragraph as a result of the prohibition in the preceding paragraph)
may (with notice and lapse of time) constitute an Event of Default described in
clause (3) but shall not constitute an Event of Default described in clause (2)
in Section 6.1.
On or
before the Purchase Date, the Issuers shall to the extent lawful, (i) accept for
payment all Notes or portions thereof properly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent an amount equal to the
Purchase Price, together with accrued and unpaid interest thereon to the
Purchase Date in respect of all Notes or portions thereof
so
tendered and accepted for repurchase and (iii) deliver or cause to be delivered
to the Trustee the Notes so accepted together with an Officers’ Certificate
stating the aggregate principal amount of Notes or portions thereof being
repurchased by the Issuers. The Paying Agent shall promptly (but in
any case not later than five days after the Purchase Date) mail to each Holder
of Notes so repurchased the amount due in connection with such Notes, and the
Issuers shall promptly issue a new Note, and the Trustee, upon written request
from the Issuers in the form of an Officers’ Certificate and authentication
order shall authenticate and mail or deliver (or cause to transfer by book
entry) to each relevant Holder a new Note, in a principal amount equal to any
unpurchased portion of the Notes surrendered to the Holder thereof; provided,
that each such new Note shall be in a principal amount of $l,000 or an integral
multiple thereof. The Issuers shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Purchase
Date.
If the
Purchase Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest to the Purchase
Date, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date.
Notwithstanding
anything to the contrary in this Section 3.9, the Issuers shall not be required
to make a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 3.9 and purchases all
Notes validly tendered and not withdrawn under the Change of Control
Offer. A Change of Control Offer may be made in advance of a Change
of Control, conditional upon such Change of Control, if, at the time of making
such Change of Control Offer, a definitive, binding agreement has been executed
by all the parties thereto that specifically contemplates a Change of
Control.
The
Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations to the extent such laws and
regulations are applicable in connection with the repurchase of Notes pursuant
to a Change of Control Offer. To the extent that the provisions of
any securities laws or regulations conflict with this Section 3.9, the Issuers
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached their obligations under this Section 3.9 by virtue
thereof.
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Repurchase
upon Application of Excess
Proceeds.
|
In the
event that, pursuant to Section 4.10 or 4.21, the Issuers shall be required to
commence a Net Proceeds Offer or an Event of Loss Offer (each, an “Offer
to Purchase”), it shall follow the procedures specified
below.
The
Issuers shall commence the Offer to Purchase by sending, by first-class mail,
with a copy to the Trustee, to each record Holder as shown on the register of
Holders, a notice the terms of which shall govern the Offer to Purchase
containing all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer to Purchase.
The Offer
to Purchase shall be made to all Holders. Each Offer to Purchase will
be mailed to the record Holders as shown on the register of Holders within 25
days following the
Net
Proceeds Offer Trigger Date or the Event of Loss Trigger Date, or, if earlier,
within 30 days of a determination not to apply the Net Loss Proceeds as
specified in Section 4.21, as applicable, with a copy to the Trustee, and shall
comply with the procedures set forth in this Indenture. Upon
receiving notice of an Offer to Purchase, Holders may elect to tender their
Notes in whole or in part in integral multiples of $1,000 in exchange for
cash. An Offer to Purchase shall remain open for a period of 20
Business Days or such longer period as may be required by law. The
notice, which shall govern the terms of the Offer to Purchase, shall
state:
(a) that
the Offer to Purchase is being made pursuant to Section 4.10 or Section
4.21;
(b) the
Net Cash Proceeds Amount or the Excess Loss Amount, as applicable, the Purchase
Price and the Purchase Date;
(c) that
any Note not properly tendered or otherwise not accepted for repurchase shall
continue to accrue interest;
(d) that,
unless the Issuers default in the payment of the amount due on the Purchase
Date, all Notes or portions thereof accepted for repurchase pursuant to the
Offer to Purchase shall cease to accrue interest after the Purchase
Date;
(e) that
Holders electing to have any Notes repurchased pursuant to any Offer to Purchase
shall be required to tender the Notes, with the form entitled “Option of Holder
To Elect Purchase” on the reverse of the Notes completed, or transfer by
book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers,
or a Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Purchase Date;
(f) that
Holders will be entitled to withdraw their election if the Issuers, the
Depositary or the Paying Agent, as the case may be, receives, not later than the
Purchase Date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes delivered for repurchase and a
statement that such Holder is withdrawing his election to have such Notes
repurchased in whole or in part;
(g) that,
to the extent Holders properly tender Notes and holders of Pari Passu
Indebtedness properly tender such Indebtedness in an amount exceeding the Net
Cash Proceeds Amount or Excess Loss Amount, as applicable, the tendered Notes
and Pari Passu Indebtedness will be purchased on a pro
rata basis based on the aggregate amounts of Notes and Pari Passu
Indebtedness tendered (and the Trustee shall select the tendered Notes of
tendering Holders on a pro
rata basis based on the amount of Notes tendered); and
(h) that
Holders whose Notes are being repurchased only in part will be issued new Notes
equal in principal amount to the portion of the Notes tendered (or transferred
by book-entry transfer) that is not to be repurchased, which portion must be
equal to $1,000 in principal amount or an integral multiple
thereof.
On or
before the Purchase Date, the Issuers shall to the extent lawful, (i) accept for
payment, on a pro
rata basis in accordance with this Indenture to the extent necessary, the
Net Cash Proceeds Amount or the Excess Loss Amount, as applicable, of (A) Notes
or portions thereof properly tendered pursuant to the Offer to Purchase and (B)
properly tendered Pari Passu Indebtedness, or if less than the Net Cash Proceeds
Amount or the Excess Loss Amount, as applicable, has been tendered, all Notes
and Pari Passu Indebtedness properly tendered, (ii) deposit with the Paying
Agent an amount equal to the Purchase Price, plus
accrued and unpaid interest thereon to the Purchase Date in respect of all Notes
or portions thereof so tendered and accepted for repurchase and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers’ Certificate stating the aggregate principal amount of Notes or
portions thereof being repurchased by the Issuers. The Paying Agent
shall promptly (but in any case not later than five days after the Purchase
Date) mail to each Holder of Notes so repurchased the amount due in connection
with such Notes, and the Issuers shall promptly issue a new Note, and the
Trustee, upon written request from the Issuers in the form of an Officers’
Certificate and authentication order shall authenticate and mail or deliver such
new Note to such Holder, in a principal amount equal to any unpurchased portion
to the Holder thereof; provided,
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Issuers shall publicly announce the results of
each Offer to Purchase on or as soon as practicable after the applicable
Purchase Date.
If the
Purchase Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest to the Purchase
Date, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date.
The
Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
or regulations are applicable in connection with the repurchase of the Notes
pursuant to an Offer to Purchase. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of the
Indenture, the Issuers will comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations described
in the Indenture by virtue thereof.
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Mandatory
Redemption with Excess Free Cash
Flow.
|
(a) Subject
to the terms of the Intercreditor Agreement and Section 3.11(c), not later than
the 17th Business Day of each month (each an “Excess
Cash Flow Payment Date”), commencing on the first full calendar month
following the Issue Date, if the Issuers have Excess Free Cash Flow for the
one-month period ended on the last day of the previous month (each such period,
an “Excess
Cash Flow Period” and each such day, an “Excess
Cash Flow Determination Date”), the Issuers shall apply an amount equal
to 100% of the amount of such Excess Free Cash Flow to amortize outstanding
Indebtedness, including accrued interest, fees and all other amounts owing
thereon, in the following priority:
(i) Indebtedness
under the Working Capital Facility;
(ii) Indebtedness
under the Refinanced Debt (if applicable); and
(iii) Indebtedness
under the Tranche B Loan (if applicable) and to redeem the Notes, on a pro
rata
basis.
Notwithstanding
the foregoing sentence, (y) if the terms of the Working Capital Facility or the
Refinanced Debt provide for a different order of priority as between the Working
Capital Facility or the Refinanced Debt, then the priority of payment as between
such loans shall be governed in accordance with such terms, and (z) net payments
made on the Working Capital Facility or the Refinanced Facility after the Excess
Cash Flow Determination Date and before the Excess Cash Flow Payment Date shall
be credited under clause (i) and (ii) above as payments on the Excess Cash Flow
Payment Date.
(b) The
Notes shall be redeemed at a redemption price of 100% of the aggregate principal
amount of Notes redeemed plus accrued and unpaid interest to the date of
redemption. At least 2 Business Days prior to each Excess Cash Flow
Payment Date, the Issuers shall deliver to the Trustee an Officers’ Certificate
stating the amount of Excess Free Cash Flow, if any, for the preceding Excess
Cash Flow Period ending on the immediately preceding Excess Cash Flow
Determination Date, each of the Cash Flow Adjustments, if any, made in
determining the Excess Free Cash Flow, the amount that the Excess Cash Flow to
be applied pursuant to Section 3.11(a) has been reduced, if any, pursuant to
Section 3.11(c), the amount of such Excess Free Cash Flow applied to reduce
amounts outstanding under the Working Capital Facility or Refinanced Debt (if
applicable) and the Tranche B Loan (if applicable) and the net amount of Excess
Free Cash Flow to be applied to redeem Notes. The Redemption Date for
redemptions under this Section 3.11 shall be the Excess Cash Flow Payment Date
immediately following the applicable Excess Cash Flow Determination
Date. Any redemption pursuant to this Section 3.11 shall be made
pursuant to the provisions of Sections 3.2 through 3.6, provided,
that, if less than all of the Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof to be redeemed on a pro
rata basis.
(c) The
Issuers will not be required to make any payments or mandatory redemptions with
respect to an Excess Cash Flow Period under this Section 3.11 (i) unless the
Excess Free Cash Flow for such period is equal to or in excess of $250,000 as of
the applicable Excess Cash Flow Determination Date or (ii) if Xxxxxx Publishing
does not have in effect a Working Capital Facility, if the Working Capital
Balance on the Excess Cash Flow Determination Date for such Excess Cash Flow
Period is less than $7,000,000. If Xxxxxx Publishing does not have a
Working Capital Facility in effect on any Excess Cash Flow Determination Date
and the Working Capital Balance is more than $7,000,000, the Issuers will only
be required to apply an amount of Excess Free Cash Flow pursuant to Section
3.11(a) equal to the amount that, if applied, would reduce the Working Capital
Balance on the Excess Cash Flow Determination Date to $7,000,000 and such amount
to be applied shall be deemed the “Excess Free Cash Flow” for such Excess Cash
Flow Period for purposes of this Section 3.11. With respect to the
Excess Cash Flow Period containing the Issue Date, the Issuers will only be
required to apply an amount of Excess Free Cash Flow for such period equal to
the product of (A) (i) the amount of Excess Free Cash Flow for such calendar
month divided
by (ii) the number of days in such period multiplied
by (B) the number of days from the Issue Date to the end of the calendar
month in such period and such amount to be applied shall be deemed the “Excess
Free Cash Flow” for such Excess Cash Flow Period for purposes of this Section
3.11. The Issuers shall, in any case, be required to deliver the
Officers’ Certificate required by this Section 3.11.
(d) To
the extent that, in connection with the preparation of consolidated audited
financial statements of the Company and its Subsidiaries, it is determined that
the amount of Excess Free Cash Flow for any Excess Cash Flow Period was higher
than the amount of Excess Free Cash Flow previously reported in the Officers’
Certificate delivered pursuant to Section 3.11 for such Excess Cash Flow Period,
the amount of the difference between the amount of the audited Excess Free Cash
Flow and the amount of Excess Free Cash Flow that was reported for such Excess
Cash Flow Period (such difference, the “Audited
Adjustment”) shall be added to the Excess Free Cash Flow for the Excess
Cash Flow Period next following the determination that the Excess Free Cash Flow
for such prior Excess Cash Flow Period requires an Audited
Adjustment. If the Excess Free Cash Flow for such prior Excess Cash
Flow Period was determined in good faith by the Issuers, the occurrence of an
Audited Adjustment shall not be deemed a Default or Event of Default under this
Section 3.11 if the Audited Adjustment is applied to the subsequent calculation
of Excess Free Cash Flow pursuant to this paragraph (d).
(e) Subject
to the following sentence, on the Issue Date, the Issuers shall apply an amount
equal to 100% of the amount of the Cash on Hand as of the Issue Date to amortize
outstanding Indebtedness, including accrued interest, fees and all other amounts
owing thereon in accordance with the priority set forth in Section
3.11(a). If Xxxxxx Publishing has not entered into a Working Capital
Facility on the Issue Date, the Issuers shall apply an amount of cash equal to
an amount that, if applied, would reduce the Cash on Hand as of the Issue Date
to $7,000,000, to amortize outstanding Indebtedness, including accrued interest,
fees and all other amounts owing thereon in accordance with the priority set
forth in Section 3.11(a).
(f) On
the date that the Company enters into the Working Capital Facility, the Company
shall apply an amount equal to 100% of the outstanding amount of the Working
Capital Balance as of such date to amortize outstanding Indebtedness, including
accrued interest, fees and all other amounts owing thereon in accordance with
the priority set forth in Section 3.11(a).
COVENANTS
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Payment
of Principal and Interest.
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The
Issuers shall pay or cause to be paid the principal, Redemption Price and
Purchase Price of, and interest on the Notes on the dates, in the amounts and in
the manner provided herein and in the Notes. Principal, Redemption
Price, Purchase Price and interest shall be considered paid on the date due if
the Paying Agent, if other than an Issuer, holds as of 10:00 a.m. Eastern Time
on the due date money deposited by the Issuers in immediately available funds
and designated for and sufficient to pay the aggregate amount then
due.
The
Issuers shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) during any period in which an Event of Default has
occurred and is continuing (including any interest on overdue principal,
Redemption Price and Purchase Price and on overdue installments of interest
(without regard to any applicable grace period)) at the rate equal to 2% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful, which excess rate shall be paid in cash; the Issuers shall also pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
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Maintenance
of Office or Agency.
|
The
Issuers shall maintain an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuers in respect of the Notes and this
Indenture may be served. The Issuers shall 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 Issuers 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 office of the Trustee.
The
Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The
Issuers shall 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.
The
Issuers hereby designate the office of the Trustee as one such office or agency
of the Issuers in accordance with Section 2.3. The Trustee may resign
such agency at any time by giving written notice to the Issuers no later than 30
days prior to the effective date of such resignation.
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Reports.
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Whether
or not required by the rules and regulations of the Commission, so long as any
Notes are outstanding Xxxxxx Publishing will furnish the Holders of Notes (which
may be furnished by making publicly available filings with the
Commission):
(a) beginning
with reports for the first quarter ending after the Issue Date, all quarterly
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if Xxxxxx Publishing were
required to file such Forms, including a “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” that describes the financial
condition and results of operations of Xxxxxx Publishing and its consolidated
Subsidiaries (showing in reasonable detail, either on the face of the financial
statements or in the footnotes thereto and in Management’s Discussion and
Analysis of Financial Condition and Results of Operations, the financial
condition and results of operations of Xxxxxx Publishing and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of Xxxxxx Publishing, if any) and, with respect to
the annual information only, a report thereon by Xxxxxx Publishing’s independent
public accountants;
(b) all
current reports that would be required to be filed with the Commission on Form
8-K if Xxxxxx Publishing were required to file such reports, and
(c) the
certifications that would be required to be filed with the Commission pursuant
to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002, if Xxxxxx Publishing were
required to file such certifications.
in each
case, within the time periods specified in the Commission’s rules and
regulations. In addition, whether or not required by the rules and
regulations of the Commission, Xxxxxx Publishing will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission’s rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
In
addition, Xxxxxx Publishing agrees to furnish the Trustee within 50 days after
the end of each of the first three fiscal quarters and 105 days after the end of
the fourth fiscal quarter, and beginning with the fiscal quarter ended December
31, 2009, (x) an Officers’ Certificate certifying that no Default or Event of
Default under the Indenture exists, or if any Default or Event of Default under
the Indenture exists, specifying the nature and extent thereof, which
certificate shall also certify the Total Leverage Ratio and the Cash Interest
Coverage Ratio as of the last day of such quarter as well as the calculations
performed to establish such ratios (and provide such calculations) and
(y) a certificate providing, in reasonable detail, information about the
costs incurred by it and being charged to it under the Services Agreement during
such fiscal quarter.
The
portions of each Officers’ Certificate in clause (x) in the preceding sentence
which certify the Total Leverage Ratio and the Cash Interest Coverage Ratio as
of the last day of such quarter as well as the calculations performed to
establish such ratios (and provide such calculations), and the Officers’
Certificates in clause (y) in the preceding sentence shall be treated as
confidential material nonpublic information and shall not be disclosed or used
as a basis to purchase or sell the Notes or other securities of the Issuers,
unless and until the Issuers publicly disclose such information, and shall not
be used to the competitive advantage of any other business. If a
Holder enters into a confidentiality agreement with the Issuers to maintain the
confidentiality of such information and not to use such information as a basis
to purchase or sell the Notes or other securities of the Issuers, unless and
until the Issuers publicly disclose such information, and not to use such
information for the competitive advantage of any other business, then the
Issuers shall promptly deliver a copy of such certificate(s) to such Holder that
makes a written request therefor.
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Compliance
Certificate.
|
The
Issuers shall deliver to the Trustee, within 120 days after the end of each
fiscal year (which on the date hereof ends on December 31), a certificate from
its principal executive officer, principal financial officer or principal
accounting officer stating that a review of the activities of the Issuers and
the Guarantors during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Issuers and the
Guarantors
have kept, observed, performed and fulfilled their respective obligations under
this Indenture and the Security Documents in all material respects, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Issuers and the Guarantors have kept, observed,
performed and fulfilled each and every covenant contained in this Indenture in
all material respects and are not in Default in the performance or observance of
any of the terms, provisions and conditions of this Indenture and the Security
Documents (and, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default) of which he or she may have knowledge,
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which, payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event, and that to the best of his or her knowledge each of
the Issuers and the Guarantors has complied in all material respects with all
applicable laws and Environmental Laws (and if any material violation of law or
Environmental Laws shall have occurred, describing all such
violations).
So long
as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.3 above shall be accompanied by a written statement of the
Company’s independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that any of the Issuers or Guarantors has violated any
provisions of Article IV or Article V or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
The
Issuers shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith upon any Officer of an Issuer becoming aware of any Default
or Event of Default an Officers’ Certificate specifying such Default or Event of
Default; provided
that the Issuers shall provide such Officers’ Certificate at least annually
whether or not any Officer knows of any Default or Event of
Default.
The
Issuers shall promptly notify the Trustee in writing upon the incurrence of the
Refinanced Debt, including a statement of the interest rate payable on the
Refinanced Debt and whether such interest rate constitutes an Event of Default
under clause (11) of Section 6.1.
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Taxes.
|
The
Issuers shall pay or discharge, and shall cause each of its Subsidiaries to pay
or discharge, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
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Stay,
Extension and Usury Laws.
|
Each of
the Issuers covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and each of the Issuers
(to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants it shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee or the Collateral Agent, but shall suffer and permit the execution of
every such power as though such law has not been enacted.
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Limitation
on Restricted Payments.
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Xxxxxx
Publishing will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare
or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of Xxxxxx Publishing) on or in
respect of shares of Xxxxxx Publishing’s Capital Stock to holders of such
Capital Stock;
(2) purchase,
redeem or otherwise acquire or retire for value any Capital Stock of Xxxxxx
Publishing; or
(3) make
any Investment (other than Permitted Investments)
(each of
the foregoing actions set forth in clauses (1), (2) and (3) being referred to as
a “Restricted
Payment”).
Notwithstanding
the foregoing, the provisions set forth in the immediately preceding paragraph
do not prohibit:
(1) if
no Default or Event of Default shall have occurred and be continuing, the
acquisition of any shares of Capital Stock of Xxxxxx Publishing, either (i)
solely in exchange for shares of Qualified Capital Stock of Xxxxxx Publishing or
(ii) through the application of net proceeds of a substantially concurrent sale
for cash (other than to a Subsidiary of Xxxxxx Publishing) of shares of
Qualified Capital Stock of Xxxxxx Publishing;
(2) so
long as no Default or Event of Default shall have occurred and be continuing,
repurchases by Xxxxxx Publishing of Common Stock of Xxxxxx Publishing from
officers, directors and employees of Xxxxxx Publishing or any of its
Subsidiaries (other than officers, directors and employees that are Permitted
Holders or any Affiliates thereof) or their authorized representatives upon the
death, disability or termination of employment of such officers, directors or
employees or termination of such director’s seat on the board of Xxxxxx
Publishing, in an aggregate amount not to exceed $2.0 million in any calendar
year; and
(3) Permitted
Tax Distributions.
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Limitation
on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
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Xxxxxx
Publishing will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of Xxxxxx Publishing to:
(1) pay
dividends or make any other distributions on or in respect of its Capital
Stock;
(2) make
loans or advances to Xxxxxx Publishing or any other Restricted Subsidiary or to
pay any Indebtedness or other obligation owed to Xxxxxx Publishing or any other
Restricted Subsidiary of Xxxxxx Publishing; or
(3) transfer
any of its property or assets to Xxxxxx Publishing or any other Restricted
Subsidiary of Xxxxxx Publishing, except in each case for such encumbrances or
restrictions existing under or by reason of:
(a) applicable
law;
(b) the
Indenture Documents;
(c) customary
non-assignment provisions of any contract or any lease governing a leasehold
interest of any Restricted Subsidiary of Xxxxxx Publishing;
(d) any
instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so
acquired;
(e) the
Tranche B Loan, the Refinanced Debt and the Working Capital
Facility;
(f) an
agreement governing other Senior Debt or Guarantor Senior Debt permitted to be
incurred under this Indenture; provided,
however,
that, with respect to any agreement governing such other Senior Debt or
Guarantor Senior Debt, the provisions relating to such encumbrance or
restriction are no less favorable to Xxxxxx Publishing in any material respect
as determined by the Board of Directors of Xxxxxx Publishing in its reasonable
and good faith judgment than the provisions contained in the Tranche A Loan as
in effect immediately prior to the Issue Date;
(g) restrictions
on the transfer of assets subject to any Lien permitted under this Indenture
imposed by the holder of such Lien;
(h) restrictions
imposed by any agreement to sell assets or Capital Stock permitted under this
Indenture to any Person pending the closing of such sale;
(i) customary
provisions in joint venture agreements and other similar agreements (in each
case relating solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of business;
and
(j) an
agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clauses (b), (d),
(e), (f) and (g) above; provided,
however,
that the provisions relating to such encumbrance or restriction contained in any
such Indebtedness are no less favorable to Xxxxxx Publishing in any material
respect as determined by the Board of Directors of Xxxxxx Publishing in their
reasonable and good faith judgment than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such clauses
(b), (d), (e), (f) and (g).
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Limitation
on Incurrence of Additional
Indebtedness.
|
Xxxxxx
Publishing will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for payment of (collectively, “incur”)
any Indebtedness (other than Permitted Indebtedness).
Other
than as expressly contemplated by this Indenture, Xxxxxx Publishing will not,
and will not permit any of its Restricted Subsidiaries to incur any Indebtedness
which represents an extension, modification, refinancing, or renewal of any
Indebtedness in an aggregate amount in excess of $100,000 in any calendar year;
provided,
that this limitation shall not apply to Indebtedness constituting a trade
payable or similar obligation to a trade creditor or to such extensions,
modifications, refinancings or renewals of Indebtedness in the ordinary course
of business.
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Limitation
on Asset Sales.
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Xxxxxx
Publishing will not, and will not cause or permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) Xxxxxx
Publishing or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by Xxxxxx Publishing’s Board of Directors);
(2) at
least 75% of the consideration received by Xxxxxx Publishing or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of
cash, Cash Equivalents and/or assets of the same type having the same general
utility as the subject assets, as determined by Issuer (“Replacement
Assets”) and is received at the time of such disposition; provided,
however,
that the amount of (i) any liabilities (as shown on Xxxxxx Publishing’s or such
Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of
Xxxxxx Publishing or any such Restricted Subsidiary (other than liabilities that
are by their terms subordinated to the Notes or any Guarantee of a Guarantor)
that are assumed by the transferee of any such assets shall be deemed to
be
cash for
purposes of this provision and (ii) any notes or other obligations received by
Xxxxxx Publishing or such Restricted Subsidiary from such transferee that are
immediately converted by Xxxxxx Publishing or such Restricted Subsidiary into
cash (to the extent of the cash received) shall be deemed, to the extent of cash
so received, to be cash for purposes of this provision; and
(3) upon
the consummation of an Asset Sale, Xxxxxx Publishing shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset
Sale within 180 days of receipt thereof:
(a) to
prepay any Senior Debt or Guarantor Senior Debt and, in the case of any Senior
Debt or Guarantor Senior Debt under any revolving credit facility (other than
the Working Capital Facility), effect a permanent reduction in the availability
under such revolving credit facility; and/or
(b) to
make an offer to all Holders and the Tranche B Lender to reduce the balance on
the Tranche B Loan and to repurchase the maximum principal amount of Notes, on a
pro rata basis, that may be reduced and purchased out of the Net Cash Proceeds
(or the portion thereof not applied pursuant to clause (a) above) at a Purchase
Price in cash in an amount equal to 101% of the principal amount thereof,
together with accrued and unpaid interest to the date fixed for the closing of
such offer, in accordance with the procedures set forth in Section 3.10 (a
“Net
Proceeds Offer”).
(4) Notwithstanding
the foregoing, all Net Cash Proceeds of any Collateral in respect of any Asset
Sale shall, pending their application in accordance with this Section 4.10 or
the release thereof in accordance with the provisions of the Security Documents,
be deposited in an account subject to a deposit account control agreement as
provided in the Security Documents.
In the
event of the transfer of substantially all (but not all) of the property and
assets of Xxxxxx Publishing and its Restricted Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.1, which transaction does not
constitute a Change of Control, the successor corporation shall be deemed to
have sold the properties and assets of Xxxxxx Publishing and its Restricted
Subsidiaries not so transferred for purposes of this covenant, and shall comply
with the provisions of this covenant with respect to such deemed sale as if it
were an Asset Sale. In addition, the fair market value of such
properties and assets of Xxxxxx Publishing or its Restricted Subsidiaries deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this
covenant.
Xxxxxx
Publishing will not, and will not cause or permit any of its Restricted
Subsidiaries to, engage in any Asset Swaps, unless:
(1) at
the time of entering into such Asset Swap and immediately after giving effect to
such Asset Swap, no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) in
the event such Asset Swap involves the transfer by Xxxxxx Publishing or any
Restricted Subsidiary of assets having an aggregate fair market value in excess
of $25.0 million, either (i) the terms of such Asset Swap shall be approved by a
majority of the Independent Directors of Xxxxxx Publishing, but in no event
fewer than two Independent Directors of Xxxxxx Publishing, such approval to be
evidenced by a Board Resolution stating that such Independent Directors have
determined that such transaction complies with the foregoing provisions or, (ii)
in the event there are fewer than two such Independent Directors, Xxxxxx
Publishing shall, prior to the consummation thereof, obtain a favorable opinion
as to the fairness of such Asset Swap to Xxxxxx Publishing or such Restricted
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee;
and
(3) in
the event such Asset Swap involves the transfer by Xxxxxx Publishing or any
Restricted Subsidiary of assets having an aggregate fair market value in excess
of $50.0 million, Xxxxxx Publishing shall, prior to the consummation thereof,
obtain a favorable opinion as to the fairness of such Asset Swap to Xxxxxx
Publishing or such Restricted Subsidiary, as the case may be, from a financial
point of view, from an Independent Financial Advisor and file the same with the
Trustee.
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Limitations
on Transactions with Affiliates.
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(a) Xxxxxx
Publishing will not, and will not permit any of its Restricted Subsidiaries to,
(i) directly or indirectly, enter into or permit to exist any transaction
or series of related transactions (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with,
or for the benefit of, any of its Affiliates (each, an “Affiliate
Transaction”), other than (x) Affiliate Transactions specifically
permitted under subsections (1) through (6) of clause (d) of this Section 4.11
and (y) Affiliate Transactions in the ordinary course of business on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm’s-length basis from a Person that
is not an Affiliate of Xxxxxx Publishing or such Restricted Subsidiary or
(ii) materially amend, modify or waive any provisions of any agreement,
whether written or oral, respecting an Affiliate Transaction in effect on the
date hereof; provided,
that the Services Agreement may be amended as provided for in Section
4.24.
(b) So
long as any Notes are outstanding, and notwithstanding anything to the contrary
herein, Xxxxxx Publishing will not, and will not permit any of its Restricted
Subsidiaries to, make or permit to exist any intercompany loans from any Obligor
to any Affiliate thereof that is not an Obligor other than (i) the Tranche B
Loan and (ii) short term intercompany payables between Xxxxxx Publishing and
Xxxxxx Communications incurred in the ordinary course of business on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm’s-length basis from a Person that
is not an Affiliate of Xxxxxx Publishing or such Restricted Subsidiary
consistent with past practices which are settled monthly.
(c) All
Affiliate Transactions (and each series of related Affiliate Transactions which
are similar or part of a common plan) involving aggregate payments or other
property with a fair market value in excess of $1.0 million shall either (i) be
approved by a majority of the
Independent
Directors of Xxxxxx Publishing, but in no event fewer than two Independent
Directors of Xxxxxx Publishing, such approval to be evidenced by a Board
Resolution stating that such Independent Directors have determined that such
transaction complies with the foregoing provisions or, (ii) in the event there
are fewer than two such Independent Directors, Xxxxxx Publishing shall, prior to
the consummation thereof, obtain a favorable opinion as to the fairness of such
Affiliate Transaction to Xxxxxx Publishing or such Restricted Subsidiary, as the
case may be, from a financial point of view, from an Independent Financial
Advisor and file the same with the Trustee. If Xxxxxx Publishing or
any Restricted Subsidiary of Xxxxxx Publishing enters into an Affiliate
Transaction (or a series of related Affiliate Transactions related to a common
plan) that involves an aggregate fair market value of more than $5.0 million,
Xxxxxx Publishing shall, prior to the consummation thereof, obtain a favorable
opinion as to the fairness of such transaction or series of related transactions
to Xxxxxx Publishing or the relevant Restricted Subsidiary, as the case may be,
from a financial point of view, from an Independent Financial Advisor and file
the same with the Trustee.
(d) Except
as expressly permitted below and subject at all times to the restrictions set
forth in clause (b) of this Section, the restrictions set forth in clause (a) of
this Section shall not apply to:
(1) reasonable
fees and compensation paid to and indemnity provided on behalf of, officers,
directors, employees or consultants of Xxxxxx Publishing or any Restricted
Subsidiary of Xxxxxx Publishing as determined in good faith by Xxxxxx
Publishing’s Board of Directors or senior management;
(2) Affiliate
Transactions between or among Xxxxxx Publishing, any of its Restricted
Subsidiaries that are Guarantors or exclusively between or among such Restricted
Subsidiaries, provided such transactions are not otherwise prohibited by this
Indenture;
(3) The
Services Agreement or, an amendment or replacement agreement thereto so long as
any such amendment or replacement thereto is not more disadvantageous to the
Holders in any material respect than the Services Agreement, as amended in
accordance with Section 4.24 as in effect on the Issue Date;
(4) Restricted
Payments permitted by this Indenture;
(5) transactions
in the ordinary course of business and conducted on an arm’s length basis,
exclusively between Xxxxxx Publishing or any of its Restricted Subsidiaries and
a joint venture to which Xxxxxx Publishing or any of its Restricted Subsidiaries
is a party; provided,
however,
that the other party or parties to such joint venture are not Affiliates of
Xxxxxx Publishing, any of its Restricted Subsidiaries or any Permitted Holder;
and
(6) the
Loan Documents (as defined in the Senior Debt Credit Agreement) as in effect on
the Issue Date, as such documents may be amended, restated, supplemented, or
otherwise modified from time to time in accordance with the Intercreditor
Agreement, if applicable.
Xxxxxx
Publishing will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Liens of any kind against or upon any property or assets of
Xxxxxx Publishing or any of its Restricted Subsidiaries (including pledging any
Common Stock of any Restricted Subsidiary) whether owned on the Issue Date or
acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise
convey any right to receive income or profits therefrom except for:
(1) Liens
securing the Refinanced Debt, the Working Capital Facility or the Tranche B
Loan;
(2) Liens
securing the Notes and the Guarantees;
(3) Liens
of Xxxxxx Publishing or a Wholly Owned Restricted Subsidiary of Xxxxxx
Publishing on assets of any Restricted Subsidiary of Xxxxxx
Publishing;
(4) Liens
securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this Indenture and
which has been incurred in accordance with the provisions of this Indenture;
provided,
however,
that such Liens: (i) are no less favorable to the Holders in any
material respect and are not more favorable to the lienholders in any material
respect with respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced; and (ii) do not extend to or cover any property or assets of
Xxxxxx Publishing or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; and
(5) Permitted
Liens.
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Continued
Existence.
|
Subject
to Article V, each of the Issuers and the Guarantors shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate or other existence in accordance with the organizational documents (as
the same may be amended from time to time) of the Issuers or such Guarantor and
(ii) the material rights (charter and statutory), licenses, permits, privileges
and franchises of the Issuers or such Guarantor, except to the extent that the
applicable Board of Directors determines in good faith that the preservation of
such right, license or franchise is no longer necessary or desirable in the
conduct of the business of the Issuers or such Guarantor.
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Insurance
Matters.
|
Xxxxxx
Publishing shall provide or cause to be provided, for itself and each of its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of Xxxxxx Publishing, are adequate and appropriate for the conduct of the
business of Xxxxxx Publishing and its Restricted Subsidiaries in a prudent
manner, with reputable insurers or with the government of the United States or
an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be either (i) consistent with past practices of
Xxxxxx Publishing or the applicable Restricted Subsidiary or (ii) customary, in
the reasonable, good faith opinion
of Xxxxxx
Publishing, for corporations similarly situated in the industry, unless the
failure to provide such insurance (together with all other such failures) would
not have a material adverse effect on the financial condition or results of
operations of Xxxxxx Publishing and its Restricted Subsidiaries, taken as a
whole.
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Working
Capital Balance.
|
At times
when there is no Working Capital Facility, Xxxxxx Publishing and its
Subsidiaries may maintain a Working Capital Balance in an aggregate amount equal
to or greater than $5.0 million; provided,
that, at all times (including when there is a Working Capital Facility), the sum
of (i) the Average Cash Balance during any calendar month plus (ii) the Average
Availability Balance during such calendar month under the Working Capital
Facility, if applicable, shall be no less than $2.0 million in the
aggregate. Xxxxxx Publishing and its Subsidiaries shall maintain all
cash, with the exception of no more than $500,000 at any time, in one or more
accounts at Acceptable Financial Institutions.
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Additional
Subsidiaries.
|
If Xxxxxx
Publishing or any of its Restricted Subsidiaries transfers or causes to be
transferred, in one transaction or a series of related transactions, any
property to any Domestic Restricted Subsidiary that is not a Guarantor, or if
Xxxxxx Publishing or any of its Restricted Subsidiaries shall organize, acquire
or otherwise invest in another Domestic Restricted Subsidiary having total
assets with a book value in excess of $500,000, then Xxxxxx Publishing shall
cause such transferee or acquiree or other Restricted Subsidiary
to:
(1) execute
and deliver to the Trustee a supplemental indenture pursuant to which such
Restricted Subsidiary shall unconditionally guarantee all of Xxxxxx Publishing’s
obligations under the Notes and this Indenture on the terms set forth in this
Indenture;
(2) execute
and deliver to the Trustee such instruments and documents (including opinions of
legal counsel) as are appropriate to confirm the obligations of such Restricted
Subsidiary under the Security Documents; and
(3) deliver
to the Trustee an Opinion of Counsel that such supplemental indenture has been
duly authorized, executed and delivered by such Restricted Subsidiary and
constitutes a legal, valid, binding and enforceable obligation of such
Restricted Subsidiary. Thereafter, such Restricted Subsidiary shall
be a Guarantor for all purposes of this Indenture.
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Conduct
of Business.
|
(a) Limitations
on Activities of Xxxxxx Publishing. Xxxxxx Publishing will
not, and will not cause or permit any of its Restricted Subsidiaries to, engage
in any business other than a Permitted Business; provided,
however,
that Xxxxxx Publishing may continue the business of any Restricted Subsidiary
acquired in accordance with the terms of this Indenture.
(b) Limitations
on Activities of Xxxxxx Finance. Xxxxxx Finance will not hold
any material assets, become liable for any material obligations, engage in any
trade or business, or conduct any business activity, other than the issue of
Capital Stock to Xxxxxx Publishing or any Wholly Owned Restricted Subsidiary of
Xxxxxx Publishing, the incurrence of Indebtedness as a co-obligor or guarantor
of the Notes, the Obligations under the Tranche B Loan, the Working Capital
Facility, the Refinanced Debt, and any other Indebtedness that is
permitted to be incurred by Xxxxxx Publishing pursuant to Section 4.9; provided,
however,
that the net proceeds of such Indebtedness are retained by Xxxxxx Publishing or
loaned to or contributed as capital to one or more of the Restricted
Subsidiaries of Xxxxxx Publishing other than Xxxxxx Finance, and activities
incidental thereto. Xxxxxx Publishing will not, and will not cause or
permit any Restricted Subsidiary to, engage in any transactions with Xxxxxx
Finance in violation of the preceding sentence.
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Payments
for Consent.
|
Xxxxxx
Publishing will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of Notes for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of the Indenture or the Notes unless
such consideration is offered to be paid and is paid to all Holders of the Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or
agreement.
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Limitation
on Preferred Stock of Restricted
Subsidiaries.
|
Xxxxxx
Publishing will not permit any of its Restricted Subsidiaries that is not an
Issuer or a Guarantor to issue any Preferred Stock (other than to Xxxxxx
Publishing or to a Wholly Owned Restricted Subsidiary of Xxxxxx Publishing) or
permit any Person (other than Xxxxxx Publishing or a Wholly Owned Restricted
Subsidiary of Xxxxxx Publishing) to own any Preferred Stock of any Restricted
Subsidiary of Xxxxxx Publishing that is not an Issuer or a
Guarantor.
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Prohibition
on Incurrence of Senior Subordinated
Debt.
|
Xxxxxx
Publishing will not, and will not permit any Restricted Subsidiary that is a
Guarantor to, incur or suffer to exist Indebtedness that is senior in right of
payment to the Notes or such Guarantor’s Guarantee, as the case may be, and
subordinate in right of payment to any other Indebtedness of Xxxxxx Publishing
or such Guarantor, as the case may be.
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Events
of Loss.
|
(a) In
the event of an Event of Loss with respect to any Collateral with a fair market
value (or replacement cost, if greater, if insured for their full replacement
cost) equal to or less than $1,000,000, the Issuer or Guarantor, at their
option, may apply the Net Loss Proceeds to purposes determined by Issuer, so
long as such application does not violate this Indenture. In the
event of an Event of Loss with respect to any Collateral with a fair market
value (or replacement cost, if greater, if insured for their full replacement
cost) in excess of $1,000,000, within 180 days after the receipt of the Net Loss
Proceeds of such Event of Loss, the Issuers or such Guarantor, at their option,
may apply the Net Loss Proceeds from such Event of Loss,
(1) to
the rebuilding, repair or construction of improvements to the affected
Collateral (the “Subject
Property”) or to the investment in Replacement Assets, provided,
that if such Event of Loss occurs with respect to Collateral with a fair market
value in excess of $2,000,000, the Issuers deliver (A) a written opinion from a
reputable contractor that the Subject Property can be rebuilt, repaired,
replaced or constructed and operating within 360 days from the receipt of the
Net Loss Proceeds of such Event of Loss; and (B) an Officers’ Certificate
certifying that the Issuers or the affected Guarantor has available from Net
Loss Proceeds (including amounts collectible from the applicable insurance
carrier) or other sources sufficient funds to complete the rebuilding, repair,
replacement or construction described in this clause (1); provided,
also
that any improvements to the Subject Property or Replacement
Assets acquired with any Net Loss Proceeds of Collateral shall be
owned by the Issuers or by a Guarantor and shall not be subject to any Liens
other than Permitted Liens, and the Issuers or such Guarantor, as the case may
be, shall execute and deliver to the Collateral Agent such Security Documents or
other instruments as shall be reasonably necessary to cause such improvements or
Replacement Assets to become subject to a Lien in favor of the Collateral Agent,
for the benefit of the Holders and the Tranche B Lender, securing the
obligations under the Notes or the Guarantees, and the Senior Debt Credit
Agreement, the Refinanced Debt and the Working Capital Facility, as the case may
be, and otherwise shall comply with the terms of this Indenture and the
Intercreditor Agreement; or
(2) if
permitted by the Intercreditor Agreement, to the repayment of any
Senior Debt secured by a Permitted Lien on the Collateral subject to the Event
of Loss in an amount up to the Net Loss Proceeds with respect to such Collateral
and, if such Senior Debt is revolving credit Indebtedness (other than the
Working Capital Facility), to correspondingly reduce commitments with respect
thereto, in each case with no concurrent obligation to make any purchase or
redemption of any Notes;
provided
that if, within such 180-day period, the Company or applicable Restricted
Subsidiary has entered into a definitive, binding agreement on commercially
reasonable terms negotiated on an arms-length basis to apply such Net Loss
Proceeds to the purchase or construction of assets permitted in this paragraph
(a), then the Company may extend such 180-day period for up to an additional 180
days. The Issuers shall promptly notify the Trustee upon entry by the
Company or a Restricted Subsidiary of such an agreement.
(b) Any
Net Loss Proceeds that are not invested or applied within the time period
specified in clause (a) above for the purposes provided in such clause (a) will
be deemed to constitute “Excess
Loss Amount”. Within 25 days following the Event of Loss
Trigger Date, or such earlier date, if any, as the Board of Directors of Xxxxxx
Publishing determines not to apply the Net Loss Proceeds relating to such Event
of Loss as set forth in paragraph (a) of this Section 4.21, then within 30 days
following such determination (but in no event later than 25 days following the
Event of Loss Trigger Date), the Issuers will make an offer to all Holders and
the Tranche B Lender (an “Event
of Loss Offer”), to reduce the balance of the Tranche B Loan and purchase
the maximum principal amount of Notes, on a pro
rata
basis, that may be reduced and purchased out of the Excess Loss Amount at a
Purchase Price in cash in an amount equal to 101% of the principal amount plus
accrued and unpaid interest to the date fixed for the closing of such offer, in
accordance with the procedures set forth in Section 3.10. To the
extent that the offer price for the aggregate amount of Notes
tendered and for the reduction of the Tranche B Loan pursuant to an
Event of Loss Offer is less than the Excess Loss Amount,
such
remaining Excess Loss Amount shall be released to the Issuers for use for any
purposes, subject to any other applicable conditions and covenants in this
Indenture and the Security Documents. If the offer price for the
aggregate principal amount of Notes tendered and for the reduction of the
Tranche B Loan pursuant to an Event of Loss Offer exceeds the amount of Excess
Loss Amount, the Trustee shall select the Notes to be purchased on a pro rata
basis in authorized denominations based on the aggregate principal amount of the
Notes so tendered. Upon completion of any Event of Loss Offer, the
amount of Excess Loss Amount shall be reset at zero.
(c) The
Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
or regulations are applicable in connection with the repurchase of the Notes
pursuant to an Event of Loss Offer. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of the
Indenture, the Issuers will comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations described
in the Indenture by virtue thereof.
(d) In
the event of any conflict between this Section 4.21 and any Security Document,
this Section 4.21 shall control; provided,
that to the extent this Section 4.21 conflicts with the Intercreditor
Agreement, the Intercreditor Agreement shall control.
|
Financial
Covenants.
|
Xxxxxx
Publishing will not permit the Total Leverage Ratio to exceed the following
respective amounts at any time during the following respective
periods:
|
Period
|
Total
Leverage Ratio
|
|
January
1, 2010 to December 31, 2010
|
5.50
to 1
|
|
January
1, 2011 to March 31,
2011
|
5.50
to 1
|
|
April 1,
2011 to June
30, 2011
|
5.50
to 1
|
|
July 1, 2011 to September 30, 2011
|
5.25
to 1
|
|
October 1, 2011 to December 31, 2011
|
5.25
to 1
|
-64-
| Period | Total Leverage Ratio |
|
January 1, 2012 to December 31, 2012
|
5.00
to 1
|
|
January 1, 2013 to December 31, 2013
|
4.75
to 1
|
|
January 1, 2014 to December 31, 2014
|
4.50
to 1
|
Xxxxxx
Publishing will not permit the Cash Interest Coverage Ratio to be less than the
following respective amounts at any time during the following respective
periods:
|
Period
|
Cash
Interest Coverage Ratio
|
|
January 1, 2010 to December 31, 2010
|
1.8
to 1
|
|
January 1, 2011 to December 31, 2011
|
1.8
to 1
|
|
January 1, 2012 to December 31, 2012
|
1.8
to 1
|
|
January 1, 2013 to December 31, 2013
|
1.9
to 1
|
|
January 1, 2014 to December 31, 2014
|
2.1
to 1
|
Xxxxxx
Publishing agrees to test its compliance with this Section 4.22 quarterly, on
March 31, June 30, September 30 and December 31 of each year and report on
its results in compliance with Section 4.3(ii) of this Indenture.
Notwithstanding
any requirements under GAAP that would require an alternative calculation solely
with respect to the matters set forth in clauses (i) and (ii) below, the
financial covenants set forth in this Section 4.22 shall be calculated, where
applicable, such that (i) the aggregate principal amount of the Notes shall in
no event exceed the aggregate principal amount from time to time outstanding
under the terms of the Notes, including, without limitation, any PIK Interest
that has been added to such principal amount, and (ii) interest expense on the
Notes shall be treated as the amount designated as interest under the terms of
the Notes.
|
Capital
Expenditures.
|
Xxxxxx
Publishing will not, and will not permit any Restricted Subsidiary that is a
Guarantor to, make or incur any Capital Expenditures not in the ordinary course
of business, or make such Capital Expenditures in an aggregate amount (for the
Company and all of its Restricted Subsidiaries) in excess of $10.0 million in
any calendar year excluding Capital Expenditures made with Net Loss Proceeds as
permitted under this Indenture.
Notwithstanding
anything to the contrary contained in Section 4.11(b), Xxxxxx Publishing shall,
and shall cause its applicable Affiliates to, amend the Services Agreement to
(a) fix the combined annual payment of the Xxxxxx Communications Fee and
the MSTAR Solutions Fee at actual costs and (b) to provide that the
combined annual payment of the Xxxxxx Communications Fee and the MSTAR Solutions
Fee shall not, under any circumstances, exceed $22.0 million in the aggregate
during any calendar year.
|
Maintenance
of Properties and Intellectual Property
Rights.
|
Xxxxxx
Publishing will, and will cause each Restricted Subsidiary that is a Guarantor
to: (a) keep and maintain all property material to the conduct of its
business in good working order and condition sufficient and advisable for its
ordinary operations (ordinary wear and tear excepted), (b) obtain and
maintain in effect at all times all material franchises, governmental
authorizations, intellectual property rights (including patents, copyrights,
trademarks, trade names), trade secrets, licenses and permits, which are
reasonably necessary for it to own its property and conduct its business as
conducted on the date of this Indenture or as permitted hereafter to be
conducted, (c) consistent with their past practices (i) continue to use each
material trademark in a manner that maintains such material trademark in full
force free from any claim of abandonment for non-use, and (ii) use such material
trademark with the appropriate notice of registration and all other notices and
legends required by applicable law.
|
Compliance
with Laws.
|
Xxxxxx
Publishing will, and will cause each Restricted Subsidiary that is a Guarantor
to, comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, including Environmental Laws, except
where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a material adverse effect on the business,
assets, financial condition, or results of operations of the Company and its
Subsidiaries taken as a whole.
|
Books
and Records; Inspection Rights.
|
Xxxxxx
Publishing will, and will cause each Restricted Subsidiary that is a Guarantor
to, (a) keep proper books of record and account in which full,
true and correct entries are made of all dealings and transactions in relation
to its business and activities in conformity with GAAP and all requirements of
law and (b) permit any representatives or independent contractors designated by
the Holders or the Trustee, upon reasonable prior notice and during normal
business hours, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants (at which conferences
the Company may participate), subject to confidentiality agreements reasonably
acceptable to Xxxxxx Publishing.
|
Security
Documents.
|
On the
date hereof, the Issuers and the Guarantors will enter into each Security
Document and each other instrument and document required thereby.
The
Issuers will, and will cause each of their Subsidiaries to, take such action
from time to time as shall be necessary or desirable to effectuate the purposes
and objectives of the Indenture Documents.
Without
limiting the generality of the foregoing, the Issuers will take such action, and
will cause each of their applicable Subsidiaries to take such action, from time
to time as shall be necessary to ensure that each Subsidiary of the Issuers is a
“Subsidiary Guarantor” under the Security Agreement. Accordingly, in
the event that any new Subsidiary meeting such conditions is formed or acquired
by Xxxxxx Publishing after the date hereof, the Issuers will cause such
Subsidiary to become a “Guarantor” and a “Grantor” under the Security Agreement
pursuant to an instrument of assumption, and to deliver such proof of corporate
action, incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each Obligor upon the date hereof (and each
Issuer hereby instructs such counsel to deliver such opinions to the Trustee and
the Holders).
In
addition, without limiting the generality of the foregoing, the Issuers will,
and will cause each of the other Obligors to, take such action from time to time
(including filing appropriate Uniform Commercial Code financing statements and
executing and delivering such assignments, security agreements, mortgages and
other instruments) as shall be necessary or desirable to create, in favor of the
Collateral Agent for the benefit of the Holders, perfected security interests
and Liens in substantially all of the property of the Obligors of the type
required to be collateral under the Senior Debt Credit Agreement as collateral
security for their Obligations hereunder and under the Security Documents; provided
that any such security interest or Lien shall be subject to the relevant
requirements of the Security Documents and the Intercreditor
Agreement.
|
Board
Observer.
|
Holders
of a majority in aggregate principal amount of the outstanding Notes shall have
the right to designate one representative (the “Observer”)
to attend all meetings of the Board of Directors of the Company, the Board of
Directors of each of the Company’s material subsidiaries and each committee of
such Board of Directors of the Company or material subsidiary (collectively, the
“Relevant
Meetings”) as a non-voting observer by notifying the Company in writing
or by directing the Trustee in writing to notify the Company in writing of such
designation; provided
that such Observer shall have the same duties of confidentiality and
non-disclosure as the other members of the Board of Directors. The
Observer shall be entitled to (i) prior written notice of all Relevant
Meetings in the same manner and with the same amount of advance notice, which
shall be at least five (5) Business Days’ advance notice where practicable, that
is provided to all other members of the Board of Directors of the Company, its
material subsidiaries and any committees of such Board of Directors in
connection with such Relevant Meetings, (ii) receive all materials provided to
members (contemporaneously with other members’ receipt of such materials) of the
Board of Directors of the Company, its material subsidiaries and any committees
of such Board of Directors in connection with such Relevant Meetings, (iii)
attend (whether in person, by telephone, or otherwise) all Relevant Meetings as
a non-voting observer, and (iv) receive reimbursement for reasonable fees and
expenses incurred in connection with attending such Relevant Meetings; provided,
however,
that the Company reserves the right to exclude such Observer from access to any
material or meeting or portion thereof (only if the Observer is
notified of such withholding) if the Board votes in good faith after advice of
counsel, that such exclusion is necessary (taking into account any
confidentiality agreements that such Observer has executed or is willing to
execute): (a) to preserve the attorney-client privilege; or (b) to
avoid the impairment of the Company’s ability to enforce its rights under this
Agreement in any bona fide dispute with the Observer. The Company
will provide reasonable advance notice if it intends to exclude the Observer
from attending any portion of any meeting or from receiving any particular
materials, describing the basis for such exclusion, and shall cooperate with the
Observer in good faith to limit to the maximum extent reasonably possible the
degree to which the Observer will be excluded from such portions of such
meetings or receiving such materials. Such Observer shall be
removable only by (A) the Required Noteholders (i) by providing written notice
to the Company or (ii) by directing the Trustee in writing to notify the Company
in writing, or (B) the Company for Cause. For purposes of this
Indenture, “Cause”
shall mean that the Observer: (x) has been convicted of an act
constituting a misdemeanor involving moral turpitude or a felony under the laws
of the United States or any state or political subdivision thereof, (y) has
committed an act constituting gross negligence or willful misconduct that is
detrimental to the business, reputation, character or standing of the Company,
or (z) has committed an act of fraud, self-dealing, conflict of interest,
material dishonesty or misrepresentation that is detrimental to the business,
reputation, character or standing of the Company.
SUCCESSORS
|
Merger,
Consolidation and/or Sale of
Assets.
|
(a) Xxxxxx
Publishing will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease,
convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of
Xxxxxx Publishing to sell, assign, transfer, lease, convey or otherwise dispose
of) all or substantially all of Xxxxxx Publishing’s assets (determined on a
consolidated basis for Xxxxxx Publishing and Xxxxxx Publishing’s Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(1) either:
(a) Xxxxxx
Publishing shall be the surviving or continuing corporation; or
(b) the
Person (if other than Xxxxxx Publishing) formed by such consolidation or into
which Xxxxxx Publishing is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other disposition the properties and
assets of Xxxxxx Publishing and of Xxxxxx Publishing’s Restricted Subsidiaries
substantially as an entirety (the “Surviving
Entity”):
(x) shall
be a corporation, limited liability company or limited partnership organized and
validly existing under the laws of the United States or any State thereof or the
District of Columbia; and
(y) shall
expressly assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest on all of the
Notes and the performance of every covenant of the Notes and the Indenture on
the part of Xxxxxx Publishing to be performed or observed;
(2) immediately
after giving effect to such transaction and, if applicable, the assumption
contemplated by clause (1)(b)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction), Xxxxxx Publishing or such
Surviving Entity, as the case may be, (a) shall have a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of Xxxxxx Publishing
immediately prior to such transaction and (b) shall be able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.22;
(3) immediately
before and immediately after giving effect to such transaction and, if
applicable, the assumption contemplated by clause (1)(b)(y) above (including,
without limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection with
or in respect of the transaction), no Default or Event of Default shall have
occurred or be continuing; and
(4) Xxxxxx
Publishing or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with the applicable
provisions of the Indenture and that all conditions precedent in the Indenture
relating to such transaction have been satisfied.
For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of Xxxxxx Publishing the Capital Stock of which constitutes all or
substantially all of the properties and assets of Xxxxxx Publishing, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of Xxxxxx Publishing.
Notwithstanding
the foregoing clauses (1), (2) and (3), Xxxxxx Publishing may merge with an
Affiliate that is a Person that has no material assets or liabilities and which
was organized solely for the purpose of reorganizing Xxxxxx Publishing in
another jurisdiction.
(b) Each
Guarantor (other than any Guarantor whose Guarantee is to be released in
accordance with the terms of the Guarantee and the Indenture in connection with
any transaction complying with Section 4.10) will not, and Xxxxxx Publishing
will not cause or permit any Guarantor to, consolidate with or merge with or
into any Person other than Xxxxxx Publishing or any other Guarantor
unless:
(1) the
entity formed by or surviving any such consolidation or merger (if other than
the Guarantor) or to which such sale, lease, conveyance or other disposition
shall have been made is a corporation, limited liability company or limited
partnership organized and existing under the laws of the United States or any
State thereof or the District of Columbia;
(2) such
entity assumes all of the obligations of the Guarantor on the
Guarantee;
(3) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and
(4) immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro
forma basis, Xxxxxx Publishing could satisfy the provisions of clause (2)
of the first paragraph of this covenant.
Any
merger or consolidation of a Guarantor with and into Xxxxxx Publishing (with
Xxxxxx Publishing being the surviving entity) or another Guarantor that is a
Wholly Owned Restricted Subsidiary of Xxxxxx Publishing need only comply with
clause (4) of the first paragraph of this covenant.
(c) The
following additional conditions shall apply to each transaction described in the
above paragraphs:
(1) the
Company, such Guarantor or the relevant surviving entity, as applicable, will
cause to be filed and recorded in the relevant jurisdictions (so long as such
jurisdictions are in the United States) such amendments or other instruments, if
any, as may be required by applicable law to preserve and protect the Lien on
the Collateral owned by or transferred to such Person created by the Security
Documents in favor of the Collateral Agent for the benefit of the Holders,
together with such financing statements as may be required to perfect any
security interests in such Collateral which may be perfected by the filing of a
financing statement under the Uniform Commercial Code of the relevant
states;
(2) following
any such transaction, to the extent that any assets constituted Collateral prior
to such transaction, the Collateral owned by or transferred to the Company, such
Guarantor or the relevant surviving entity, as applicable,
shall: (a) continue to constitute Collateral under this
Indenture and the Security Documents; and (b) not be subject to any Lien other
than Liens permitted by this Indenture and created by the Security
Documents;
(3) the
assets of the Person which is merged or consolidated with or into the relevant
surviving entity, to the extent such assets are of the types which would
constitute Collateral under the Security Documents and which would be required
to be pledged thereunder, shall be treated as after-acquired property and such
surviving entity shall take such action as may be reasonably necessary to cause
such assets to be made subject to the Lien created by the Security Documents in
the manner and to the extent required in this Indenture; and
(4) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such transaction and, if a supplemental
indenture or supplemental Security Documents are required in connection with
such transaction, such supplemental indenture and Security Documents comply with
the applicable provisions of this Indenture, that all conditions precedent in
this Indenture relating to such transaction have been satisfied and that such
supplemental indenture and Security Documents are authorized or permitted under
the Indenture and are enforceable, subject to customary
qualifications.
|
Successor
Corporation Substituted.
|
Upon any
consolidation or merger, or any sale, lease, conveyance or other disposition of
all or substantially all of the assets of Xxxxxx Publishing, as the case may be,
in accordance with Section 5.1, the Surviving Entity shall succeed to and be
substituted for, and may exercise every right and power of, Xxxxxx Publishing,
as the case may be, under this Indenture, the Notes and the Security Documents
with the same effect as if such Surviving Entity had been named as Xxxxxx
Publishing, as the case may be, herein; provided,
however,
that the predecessor Company shall not be relieved from the obligation to pay
the principal, Purchase Price or Redemption Price of or interest on the Notes
except in the case of a sale of all of the Company’s assets that meets the
requirements of Section 5.1.
DEFAULTS
AND REMEDIES
|
Events
of Default.
|
Each of
the following constitutes an “Event
of Default”:
(1) the
failure to pay interest on any Notes when the same becomes due and payable and
the default continues for a period of 30 days (whether or not such payment shall
be prohibited by the subordination provisions of the Indenture);
(2) the
failure to pay the principal on any Notes, when such principal becomes due and
payable, at maturity, upon redemption, repurchase or otherwise (including the
failure to make a payment to purchase Notes properly tendered pursuant to a
Change of Control Offer, a Net Proceeds Offer or an Event of Loss Offer)
(whether or not such payment shall be prohibited by the subordination provisions
of this Indenture);
(3) a
default in the observance or performance of any other covenant or agreement
contained in this Indenture which default continues for a period of 30 days
after Xxxxxx Publishing receives written notice specifying the default (and
demanding that such default be remedied) from the Trustee or the Holders of at
least 25% of the outstanding principal amount of the Notes (except in the case
of a default with respect to Sections 3.9, 4.10, 4.21 and 5.1, which will
constitute an Event of Default with such notice requirement but without such
passage of time requirement);
(4) the
failure to pay at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the stated principal amount of any Indebtedness of
Xxxxxx Publishing or any Restricted Subsidiary of Xxxxxx Publishing, or the
acceleration of the final stated maturity of any such Indebtedness (which
acceleration is not rescinded, annulled or otherwise cured within 20 days of
receipt by Xxxxxx Publishing or such Restricted Subsidiary of notice of any such
acceleration) if the aggregate principal amount of such Indebtedness is $5.0
million or more or the aggregate amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at final stated maturity or which has been accelerated (in each case
with respect to which the 20-day period described above has elapsed), aggregates
$10.0 million or more at any time;
(5) one
or more judgments in an aggregate amount in excess of $10.0 million shall have
been rendered against Xxxxxx Publishing or any of its Restricted Subsidiaries
and such judgments remain undischarged, unpaid or unstayed for a period of 60
days after such judgment or judgments become final and
non-appealable;
(6) Xxxxxx
Publishing, Xxxxxx Finance or any Significant Subsidiary of Xxxxxx
Publishing:
(a) commences
a voluntary case under any Bankruptcy Law,
(b) consents
to the entry of an order for relief against it in an involuntary
case,
(c) consents
to the appointment of a custodian or receiver of it or for all or substantially,
all of its property,
(d) makes
a general assignment for the benefit of its creditors, or
(e) generally
is not paying its debts as they become due;
(7) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(a) is
for relief in an involuntary case against Xxxxxx Publishing, Xxxxxx Finance or
any Significant Subsidiary of Xxxxxx Publishing;
(b) appoints
a custodian or receiver of Xxxxxx Publishing, Xxxxxx Finance or any Significant
Subsidiary of Xxxxxx Publishing or for all or substantially all of the property
of any of the foregoing; or
(c) orders
the liquidation of Xxxxxx Publishing, Xxxxxx Finance or any Significant
Subsidiary of Xxxxxx Publishing and the order or decree remains unstayed and in
effect for 60 consecutive days;
(8) any
Guarantee of a Significant Subsidiary ceases to be in full force and effect or
any Guarantee of a Significant Subsidiary is declared to be null and void and
unenforceable or any Guarantee of a Significant Subsidiary is found to be
invalid or any Guarantor that is a Significant Subsidiary denies its liability
under its Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of this Indenture);
(9)
the actual or asserted invalidity or impairment of any material provision in
this Indenture or any other Indenture Document delivered in connection with the
issuance of the Notes or pursuant to this Indenture;
(10) (a)
the Liens created by the Security Documents shall at any time not constitute a
valid and perfected Lien on the Collateral intended to be covered thereby (to
the extent perfection by filing, registration, recordation or possession is
required herein or therein) in favor of the Collateral Agent, free and clear of
all other Liens (other than Liens permitted hereunder and under the respective
Security Documents), (b) except for expiration in accordance with its terms, any
of the Security Documents shall for whatever reason be terminated or cease to be
in full force and effect, or (c) the enforceability thereof shall be contested
by Xxxxxx Publishing, Xxxxxx Finance or any Guarantor;
(11) The
interest rate payable on the Refinanced Debt exceeds LIBOR plus 970 basis
points, as calculated on a per annum basis; provided
that if the Refinanced Debt bears a fixed rate of interest, such determination
shall be made on the date such Refinanced Debt is incurred; or
(12) Any
Obligor or Restricted Subsidiary makes a payment of cash interest on the Tranche
B Loan or makes any principal payment on, purchases, redeems, prepays or
otherwise acquires for cash, any portion of the Tranche B Loan prior to the
payment in full in cash of the Obligations under this Indenture, except as
expressly provided in this Indenture or in connection with the Required
Refinancing.
|
Acceleration.
|
If an
Event of Default (other than an Event of Default specified in clause (6) or (7)
of Section 6.1 with respect to Xxxxxx Publishing) shall occur and be continuing,
the Trustee or the Holders of at least 25% in principal amount of outstanding
Notes may declare the principal of and accrued interest on all the Notes to be
due and payable by notice in writing to Xxxxxx Publishing and the Trustee
specifying the respective Event of Default and that it is a “notice of
acceleration” (the “Acceleration
Notice”), and the same shall become immediately due and payable; provided,
however,
that if there are any amounts outstanding under the Refinanced Debt, if
applicable, the Notes shall not become due and payable until the first to occur
of (i) an acceleration under the Refinanced Debt, if applicable and (ii) five
Business Days after receipt by Xxxxxx Publishing and the Representative under
the Refinanced Debt, if applicable, of such acceleration notice but only if such
Event of Default is then continuing.
If an
Event of Default specified in clause (6) or (7) of Section 6.1 with respect to
Xxxxxx Publishing occurs and is continuing, then all unpaid principal of, and
premium, if any, and
accrued
and unpaid interest on all of the outstanding Notes shall ipso
facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any
time after a declaration of acceleration with respect to the Notes as described
in the first paragraph of this Section 6.2, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences:
(1) if
the rescission would not conflict with any judgment or decree;
(2) if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the
acceleration;
(3) to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid;
(4) if
Xxxxxx Publishing has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its related expenses, disbursements and advances;
and
(5) in
the event of the cure or waiver of an Event of Default of the type described in
clause (6) or (7) of Section 6.1, the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereto.
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Other
Remedies.
|
If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding, and any recovery or 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 Notes. A delay or omission by
the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
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Waiver
of Past Defaults.
|
The
Holders of a majority in principal amount of the Notes may waive any existing or
past Default or Event of Default under this Indenture, and its consequences,
except a default in the payment of the principal of or interest on any
Notes. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent
thereon.
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Control
by Majority.
|
Holders
of a majority in principal amount of the then outstanding Notes may direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture that the Trustee reasonably
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may subject the Trustee to personal liability and shall be entitled to the
benefit of Sections 7.1(c)(iii) and (e).
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Limitation
on Suits.
|
A Holder
of a Note may pursue a remedy with respect to this Indenture or the Notes only
if:
(a) the
Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;
(b) the
Holders of at least 25% in principal amount of the then outstanding Notes make a
written request to the Trustee to pursue the remedy;
(c) such
Holder or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of satisfactory
indemnity; and
(e) during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.
A Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
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Rights
of Holders of Notes To Receive
Payment.
|
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, or premium, if any, and interest on the Note,
on or after the respective due dates thereon (including in connection with an
offer to repurchase), or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
written consent of such Holder.
If an Event
of Default specified in Section 6.l (1) or (2) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Issuers for the whole amount of principal of, premium,
if any, and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest, and such further amounts as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expense, disbursements and advances of the Trustee, its
agents and counsel.
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[Intentionally
Omitted].
|
|
Trustee
May File Proofs of Claim.
|
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee or
the Collateral Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee the Collateral Agent, or
their respective agents (including accountants, experts or such other
professionals as the Trustee or the Collateral Agent deems necessary, advisable
or appropriate) and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Issuers (or any other Obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims, and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the Trustee
or the Collateral Agent or their respective agents and counsel, and any other
amounts due the Trustee or the Collateral Agent under the Indenture Documents,
including without limitation, under Section 7.7. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, the Collateral Agent or their respective agents and counsel, and
any other amounts due the Trustee or the Collateral Agent under the Indenture
Documents, including without limitation under Section 7.7, out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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Priorities.
|
If the
Trustee collects any money pursuant to this Article, it shall, subject to the
requirements of the Intercreditor Agreement, pay out the money in the following
order:
First: to
the Trustee, the Collateral Agent, the Paying Agent, the Registrar and their
agents and attorneys for amounts due under Section 7.7, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Trustee or the Collateral Agent and the costs and expenses of
collection;
Second: to
Holders of Notes for amounts due and unpaid on the Notes for principal, Purchase
Price, Redemption Price and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for principal,
Purchase Price, Redemption Price and interest, respectively;
and
Third: to
the Issuers, the Guarantors or to such party as a court of competent
jurisdiction shall direct.
The
Trustee may fix a special record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.11.
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Undertaking
for Costs.
|
In any
suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as a Trustee, a
court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.7, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
TRUSTEE
|
Duties
of Trustee.
|
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.
(b) Except
during the continuance of an Event of Default:
(i)
the duties of the Trustee shall be determined solely by the express provisions
of this Indenture and the TIA and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture or the TIA against
the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, without
investigation, as to the truth or the statements and the correctness of the
opinions expressed therein, upon and statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture.
However,
in the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
on their face to the requirements of this Indenture.
(c) The
Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section
6.5.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.1.
(e) No
provision of this Indenture or the Security Documents shall require the Trustee
or the Collateral Agent to expend or risk its own funds or incur any
liability. Neither the Trustee nor the Collateral Agent shall be
under any obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5, unless such Holder shall
have offered to the Trustee and/or the Collateral Agent, as the case may be,
security and indemnity satisfactory to it against any loss, liability or expense
which might be incurred by it in compliance with such request or
direction.
(f) The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Anything
to the contrary notwithstanding, in no event shall the Trustee or the Collateral
Agent be liable to any Person for special, punitive, indirect, consequential or
incidental loss or damage of any kind whatsoever (including, but not limited to,
lost profits) even if the Trustee or the Collateral Agent has been apprised of
the likelihood of such loss or damage.
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Rights
of Trustee.
|
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers’ Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its own selection and the written advice of such counsel
and Opinions of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The
Trustee may act through its attorneys, accountants, experts and such other
agents or professionals as the Trustee deems necessary, advisable or appropriate
and shall not be responsible for the misconduct or negligence of any attorney,
accountant, expert or other such agent or professional appointed with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuers shall be sufficiently evidenced by a
written order signed by two Officers of an Issuer.
(f) The
Trustee shall not be charged with knowledge of any Default or Event of Default
under Section 6.1 (other than under Section 6.1(1) or Section 6.1(2)) unless
either (i) a Responsible Officer shall have actual knowledge thereof, or (ii)
the Trustee shall have received notice thereof in accordance with Section 14.2
from the Issuers or any Holder of the Notes.
(g) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
(h) The
Trustee may request that the Issuers deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person specified as so authorized in any such
certificate previously delivered and not superseded.
(i) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(j) 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.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers
with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest within the
meaning of the TIA it must eliminate such conflict within 90 days, apply
(subject to the consent of the Issuers) to the Commission for permission to
continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and
7.11.
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Trustee’s
Disclaimer.
|
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, or the Notes, it shall not be
accountable for the Issuers’ use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers’ direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
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Notice
of Defaults.
|
If a
Default or Event of Default occurs and is continuing, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default known to it within
90 days after it occurs. Except in the case of a Default in payment
on any Note (including the failure to make a mandatory repurchase pursuant
hereto), the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Notes.
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Reports
by Trustee to Holder of the Notes.
|
Within 60
days after each February 15 beginning with the February 15 following the date of
this Indenture, and for so long as Notes remain outstanding, the Trustee shall
mail to the Holders of the Notes a brief report dated as of such reporting date
that complies with TIA § 313(a) (but if no event described in TIA
§ 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply
with TIA § 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA § 313(c).
A copy of
each report at the time of its mailing to the Holders of Notes shall be mailed
to the Issuers and filed with the Commission and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The
Issuers shall promptly notify the Trustee when the Notes are listed on any stock
exchange or delisted therefrom.
|
Section 7.7.
|
Compensation,
Reimbursement and Indemnity.
|
The
Issuers shall pay to the Trustee from time to time such compensation for its
acceptance of this Indenture and the rendering by it of the services required
hereunder as shall be agreed upon in writing by the Issuers and the
Trustee. The Trustee’s compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Issuers shall
reimburse
the
Trustee promptly upon request for all reasonable disbursements, advances
and expenses incurred or made by or on behalf of it in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee’s attorneys,
accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate.
The
Issuers and the Guarantors shall jointly and severally indemnify the Trustee and
any predecessor Trustee against any and all losses, liabilities, claims, damages
or expenses, including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee), incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture (including its duties under Section 9.6), including the costs and
expenses of enforcing this Indenture or any Guarantee against the Issuers or a
Guarantor (including this Section 7.7) and defending itself against or
investigating any claim (whether asserted by the Issuers, any Guarantor, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or willful
misconduct. The Trustee shall notify the Issuers promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so
notify the Issuers shall not relieve the Issuers of their obligations
hereunder. The Issuers shall defend any claim or threatened claim
asserted against the Trustee, and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Issuers shall
pay the reasonable fees and expenses of such counsel. The Issuers
need not pay for any settlement made without their consent, which consent shall
not be unreasonably withheld, conditioned or delayed.
The
obligations of the Issuers under this Section 7.7 shall survive the resignation
or removal of the Trustee, the satisfaction and discharge of this Indenture and
the termination of this Indenture.
The
obligations of the Issuers under this Section 7.7 shall not be subordinated to
the payment of Senior Debt pursuant to Article X of the Intercreditor
Agreement. To secure the Issuers’ payment obligations in this Section
7.7, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal,
Redemption Price or Purchase Price of, or interest on, particular
Notes. Such Lien shall survive the resignation or removal of the
Trustee, the satisfaction and discharge of this Indenture and the termination of
this Indenture.
When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.1(6) or (7) occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy
Law.
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Replacement
of Trustee.
|
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.
The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Issuers. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Issuers in writing. The
Issuers may remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(c) a
custodian, receiver or public officer takes charge of the Trustee or its
property for the purpose of rehabilitation, conversation or liquidation;
or
(d) the
Trustee becomes incapable of acting.
If the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the date on which the successor
Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuers.
If a
successor Trustee does not take office within 30 days after the retiring trustee
resigns or is removed, the retiring Trustee, the Issuers, or the Holders of
Notes of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction, in the case of the Trustee, at the
expense of the Issuers, for the appointment of a successor Trustee.
If the
Trustee, after written request by any Holder of a Note who has been a bona fide
holder of a Note or Notes for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Issuers. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The Issuers shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Issuers’ obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.
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Successor
Trustee by Merger, Etc.
|
If the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another Person that is eligible under
Section 7.10, the successor Person without any further act shall be the
successor Trustee.
There
shall at all times be a Trustee hereunder that is a Person organized and doing
business under the laws of the United States or of any state thereof (including
the District of Columbia) that is authorized under such laws to exercise
corporate trust power, that is subject to supervision or examination by federal
or state authorities and that has a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of
condition.
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§ 310(a)(1), (2) and (5). The Trustee is subject to TIA
§ 310(b).
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Preferential
Collection of Claims Against
Issuers.
|
The
Trustee is subject to TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b). A Trustee who has resigned or been
removed shall be subject to TIA § 311(a) to the extent indicated
therein.
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
|
Option
To Effect Legal Defeasance or Covenant
Defeasance.
|
The
Issuers may, at their option and at any time, elect to have either Section 8.2
or 8.3 be applied to all outstanding Notes upon compliance with the conditions
set forth below in this Article VIII.
|
Legal
Defeasance and Discharge.
|
Upon the
Issuers’ exercise under Section 8.1 of the option applicable to this Section
8.2, the Issuers and the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.4, be deemed to have been discharged from
their obligations with respect to all outstanding Notes (including the
Guarantees) on the date the conditions set forth below are satisfied
(hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that
the Issuers shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes (including the Guarantees), which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.5
and the other Sections of this Indenture referred to in clauses (a) through (d)
below, and to have satisfied all their other obligations under such Notes and
this Indenture (and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:
(a) the
rights of Holders to receive payments in respect of the principal of, premium,
if any, and interest on the Notes when such payments are due;
(b) the
Issuers’ obligations with respect to the Notes concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payments;
(c) the
rights, powers, trust, duties and immunities of the Trustee and the Issuers’
obligations in connection therewith; and
(d) the
Legal Defeasance provisions of this Article VIII.
Subject
to compliance with this Article VIII, the Issuers may exercise their option
under this Section 8.2, notwithstanding the prior exercise of their option under
Section 8.3.
|
Covenant
Defeasance.
|
Upon the
Issuers’ exercise under Section 8.1 of the option applicable to this Section
8.3, the Issuers and the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.4, be released from their obligations under
the covenants contained in Sections 3.9, 3.10, 3.11, 4.3, 4.5, 4.7 through 4.12,
4.13 (except with respect to the existence of each Issuer) and 4.14 through
4.30, both inclusive, and Section 5.1(2) with respect to the outstanding Notes
on and after the date the conditions set forth below are satisfied (hereinafter,
“Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed “outstanding” for all other purposes hereunder
(it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Issuers and the Guarantors may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document, and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1, but, except as specified above
the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Issuers’ exercise under Section 8.1 of
the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4, Sections 6.1(3) through 6.1(13) shall not
constitute Events of Default.
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Conditions
to Legal or Covenant Defeasance.
|
The
following are the conditions precedent to the application of either Section 8.2
or 8.3 to the outstanding Notes:
In order
to exercise either Legal Defeasance or Covenant Defeasance:
(1) Xxxxxx
Publishing must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or
a combination thereof, in such amounts as will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may
be;
(2) in
the case of Legal Defeasance, the Issuers shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that:
(a) the
Issuers have received from, or there has been published by, the Internal Revenue
Service a ruling; or
(b) 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 of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(3) in
the case of Covenant Defeasance, the Issuers shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(4) no
Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or an Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowings);
(5) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under this Indenture (other than a Default
or an Event of Default resulting from the borrowing of funds to be applied to
such deposit and the grant of any Lien securing such borrowings) or any other
material agreement or instrument to which the Issuers or any of their
Subsidiaries is a party or by which Xxxxxx Publishing or any of its Subsidiaries
is bound;
(6) the
Issuers shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Issuers with the intent of preferring the
Holders over any other creditors of the Issuers or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Issuers or
others;
(7) the
Issuers shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with;
(8) the
Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect
that:
(a) the
trust funds will not be subject to any rights of holders of Senior Debt,
including, without limitation, those arising under this Indenture;
and
(b) assuming
no intervening bankruptcy of the Issuers between the date of deposit and the
91st day following the date of deposit and that no Holder
is an
insider of the Issuers, after the 91st day following the date of deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; and
(9) certain
other customary conditions precedent are satisfied.
Notwithstanding
the foregoing, the Opinion of Counsel required by clause (2) above with respect
to a Legal Defeasance need not be delivered if all Notes not theretofore
delivered to the Trustee for cancellation (1) have become due and payable or (2)
will become due and payable on the maturity date 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 Issuers.
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Deposited
Money and U.S. Government Securities To Be Held in Trust; Other
Miscellaneous Provisions.
|
Subject
to Section 8.6, all money and U.S. Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 8.5 only, the “Trustee”) pursuant to Section 8.4 in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (other than an Issuer)
as the Trustee may determine, to the Holders of such Notes of all sums due and
to become due thereon in respect of principal or Redemption Price of, or
interest on, the Notes, that such money need not be segregated from other funds
except to the extent required by law.
The
Issuers shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or U.S. Government Securities deposited
pursuant to Section 8.4 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 Notes.
Anything
in this Article VIII to the contrary notwithstanding, the Trustee shall deliver
or pay to the Issuers from time to time upon the request of the Issuers any
money or U.S. Government Securities held by it as provided in Section 8.4 which,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.4(1)), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
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Repayment
to the Issuers.
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Any money
deposited with the Trustee or any Paying Agent, or then held by the Issuers, in
trust for the payment of the principal, Redemption Price or Purchase Price of,
or interest on any Note and remaining unclaimed for two years after such amount
has become due and payable shall be paid to the Issuers on their written request
or (if then held by an Issuer) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Issuers for payment
thereof as a general creditor, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuers as
trustee thereof, shall thereupon cease; provided,
however,
that the Trustee or such Paying Agent,
before
being required to make any such repayment, at the expense of the Issuers, may
cause to be published once, in The New York Times and The Wall Street Journal
(national editions), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days after the date of
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuers.
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Reinstatement.
|
If the
Trustee or Paying Agent is unable to apply any money or U.S. Government
Securities in accordance with the Issuers’ election to apply either of Section
8.2 or 8.3 to all outstanding Notes, as the case may be, by reason of any order
of judgment of any court or Governmental Authority enjoining, restraining or
otherwise prohibiting such application, then the obligations of the Issuers and
the Guarantors under this Indenture, and the Notes and the Guarantees shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.4
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.5; provided,
however,
that, if the Issuers make any payment with respect to any Note following the
reinstatement of their obligations, the Issuers shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
AMENDMENT,
SUPPLEMENT AND WAIVER
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Without
Consent of Holders of Notes.
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From time
to time, the Issuers, the Guarantors and the Trustee, without the consent of the
Holders, may amend this Indenture for purposes of curing ambiguities, defects or
inconsistencies or adding a Guarantor under the Indenture so long as such change
does not adversely affect the rights of any of the Holders in any material
respect. In formulating its opinion on such matters, the Trustee will
be entitled to rely on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel.
No
amendment of, or supplement or waiver to, this Indenture shall adversely affect
the rights of the holders of any Senior Debt or Guarantor Senior Debt under the
subordination provisions of this Indenture (including any defined terms as used
therein) and the Intercreditor Agreement without the consent of each holder of
Senior Debt or Guarantor Senior Debt affected thereby.
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With
Consent of Holders of Notes.
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Except as
provided below in this Section 9.2, the Issuers and the Trustee may amend or
supplement this Indenture and the Notes may be amended or supplemented, in each
case, with the consent of the Holders of at least a majority in principal amount
of the Notes then outstanding (including, without limitation, consents obtained
in connection with a tender offer or exchange offer for the Notes), and, subject
to Sections 6.2, 6.4 and 6.7, any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes).
Without
the consent of each Holder affected, an amendment, supplement or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(1) reduce
the principal amount of Notes at maturity whose Holders must consent to an
amendment;
(2) reduce
the rate of or change or have the effect of changing the time for payment of
interest, including defaulted interest, on any Notes;
(3) reduce
the principal of or change or have the effect of changing the fixed maturity of
any Notes, or change the date on which any Notes may be subject to redemption or
reduce the redemption price therefor;
(4) make
any Notes payable in money other than that stated in the Notes;
(5) make
any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of and interest on such Holder’s Note or Notes
on or after the due date thereof or to bring suit to enforce such payment, or
permitting Holders of a majority in principal amount of Notes to waive Defaults
or Events of Default;
(6) after
the Issuers’ obligation to purchase Notes arises hereunder, amend, change or
modify in any material respect the obligation of the Issuers to make and
consummate a Change of Control Offer in the event of a Change of Control or make
and consummate an Event of Loss Offer or Net Proceeds Offer after an Event of
Loss Trigger Date or a Net Proceeds Offer Trigger Date, respectively, or, after
such Change of Control, Event of Loss or Asset Sale has occurred, modify any of
the provisions or definitions with respect thereto;
(7) modify
or change any provision of this Indenture or the related definitions affecting
the ranking of the Notes or any Guarantee in a manner which adversely affects
the Holders; or
(8) release
Xxxxxx Publishing or any Guarantor that is a Significant Subsidiary of Xxxxxx
Publishing from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this Indenture.
Upon the
written request of the Issuers accompanied by a resolution of the Board of
Directors (evidenced by an Officers’ Certificate) authorizing the execution of
any such amended or supplemental indenture, and upon the filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of an Officers’ Certificate and an
Opinion of Counsel, the Trustee shall join with the Issuers in the execution of
such amended or supplemental indenture unless such amended or supplemental
Indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental
indenture.
It shall
not be necessary for the consent of the Holders of Notes under this Section 9.2
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an
amendment, supplement or waiver under this Section 9.2 becomes effective, the
Issuers shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental Indenture
or waiver.
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Compliance
with Trust Indenture Act.
|
Every
amendment or supplement to this Indenture or the Notes shall be set forth in a
amended or supplemental indenture that complies with the TIA as then in
effect.
|
Revocation
and Effect of Consents.
|
Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and therefore binds every Holder.
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Notation
on or Exchange of Notes.
|
The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Issuers in exchange
for all Notes may issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
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Trustee
To Sign Amendment, Etc.
|
The
Trustee shall sign any amended or supplemental indenture authorized pursuant to
this Article IX if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Issuers
may not sign an amendment or supplemental Indenture until the Board of Directors
approves such amendment or supplemental indenture. In executing any
amended or supplemental indenture, the Trustee shall receive, in addition to the
documents required by Sections 14.4 and 14.5, and, subject to Section 7.1, shall
be fully protected in relying upon, an Officers’ Certificate and an Opinion of
Counsel stating that (i) the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture, (ii) no Event of Default shall
occur as a result of the execution of such Officers’ Certificate or the delivery
of such Opinion of Counsel and (iii) the amended or supplemental indenture
complies with the terms of this Indenture.
SUBORDINATION
|
Notes
Subordinated.
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The payment of all Obligations on or relating to the Notes
will be subordinated in right of payment to the payment of Obligations under the
Refinanced Debt and/or Working Capital Facility in accordance with the
Intercreditor Agreement, once executed by the parties thereto. If and
when the Issuers enter into an agreement for the Refinanced Debt and/or Working
Capital Facility, the Collateral Agent, upon the request of the Issuers pursuant
to an Officers' Certificate and an Opinion of Counsel (upon which the Collateral
Agent shall be authorized and permitted to rely) certifying that:
(a) such
Refinanced Debt and/or Working Capital Facility is authorized and permitted
under the Indenture,
(b) the
Intercreditor Agreement is either (i) in the form of the Intercreditor Agreement
attached as Exhibit
A to the Security Agreement (the “Intercreditor
Agreement Form”) with only such changes to add the names of the parties
thereto, the dates and the names of the facilities therein or (ii) approved by
the Required Noteholders, such approval not to be unreasonably withheld or
delayed, provided, that, the Required Noteholders shall not object or withhold
consent to any provision in the Intercreditor Agreement that is unchanged from
the Intercreditor Agreement Form, and
(c) the
Intercreditor Agreement would accomplish the subordination contemplated by this
Section 10.1,
shall, and each Holder by its acceptance of a Note hereby
directs the Collateral Agent to, enter into the Intercreditor Agreement and any
other related or ancillary documents or instruments necessary or desirable in
furtherance of the foregoing (including without limitation account control
agreements and other similar agreements and each of which additional
documentation shall be specified in the Opinion of Counsel and Officers’
Certificate referenced above) to provide the lender of the Refinanced Debt
and/or Working Capital Facility the benefits of the status of a holder of Senior
Indebtedness (as defined in the Intercreditor Agreement Form ) and to
subordinate the Obligations on or relating to the Notes to the obligations under
the Refinanced Debt and/or Working Capital Facility to the same extent as the
subordination of the Obligations relating to the Notes to the Senior
Indebtedness (as defined in the Intercreditor Agreement Form) as contemplated
under the Intercreditor Agreement Form.
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Payments May Be Made Prior to
Dissolution.
|
Nothing contained in this Article X or elsewhere in this
Indenture shall prevent (i) the Issuers, except under the conditions
described in the Intercreditor Agreement, from making payments at any time for
the purpose of making payments of principal of, and interest on, the Notes, or
from depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by the Intercreditor Agreement, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments of principal
of, and interest on, the Notes to the Holders entitled thereto unless at least
two Business Days prior to the date upon which such payment would otherwise
become due and payable a Responsible Officer of the Trustee shall have actually
received the written notice provided for in Section 10.3; provided that,
notwithstanding the foregoing, the Holders receiving any payments made in
contravention of the Intercreditor Agreement shall otherwise be subject to the
provisions of the Intercreditor Agreement. The Issuers shall give
prompt written notice to the Trustee of any dissolution, winding-up, liquidation
or reorganization of the Issuers, although any delay or failure to give any such
notice shall have no effect on the subordination provisions contained in the
Intercreditor Agreement.
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Notice
to Trustee.
|
The
Issuers shall give prompt written notice to the Trustee of any fact known to the
Issuers which would prohibit the making of any payment to or by the Trustee in
respect of the
Notes
pursuant to the provisions of the Intercreditor Agreement, although any delay or
failure to give any such notice shall have no effect on the subordination
provisions contained in the Intercreditor Agreement. Regardless of
anything to the contrary contained in this Article X or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment to or by the Trustee unless
and until the Trustee shall have received notice in writing from the Issuers, or
from a holder of Senior Debt or a Representative therefor and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts
exist. The Trustee shall be entitled to rely on the delivery to it of
any notice pursuant to this Section 10.3 to establish that such notice has been
given by a holder of Senior Debt (or a trustee thereof).
In the
event that the Trustee determines in good faith that any evidence is required
with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to the Intercreditor
Agreement, the Trustee may request such Person to furnish evidence to the
satisfaction of the Trustee as to the amounts of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under the Intercreditor Agreement, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
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Reliance
on Judicial Order or Certificate of Liquidating
Agent.
|
Upon any
payment or distribution of assets of the Issuers referred to in the
Intercreditor Agreement, the Trustee, subject to the provisions of Article VII
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered
to the Trustee or the Holders, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the holders of the
Senior Debt and other Indebtedness of the Issuers, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to the Intercreditor Agreement.
|
Trustee’s
Relation to Senior Debt.
|
The
Trustee and the Collateral Agent and any agent of the Issuers or the Trustee or
the Collateral Agent shall be entitled to all the rights set forth in the
Intercreditor Agreement with respect to any Senior Debt which may at any time be
held by it in its individual or any other capacity to the same extent as any
other holder of Senior Debt and nothing in this Indenture shall deprive the
Trustee or the Collateral Agent or any such agent of any of its
rights as such holder.
With
respect to the holders of Senior Debt, the Trustee and the Collateral Agent
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article X and the Intercreditor Agreement,
and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the
Trustee
or the Collateral Agent. Neither the Trustee nor the Collateral Agent
shall be deemed to owe any fiduciary duty to the holders of Senior
Debt.
Whenever
a distribution is to be made or a notice given to holders or owners of Senior
Debt, the distribution may be made and the notice may be given to their
Representative, if any.
|
Noteholders
Authorize Trustee To Effectuate Subordination of
Notes.
|
Each
Holder by its acceptance of a Note authorizes and expressly directs the Trustee
and the Collateral Agent on its behalf to take such action as may be necessary
or appropriate to effectuate, as between the holders of Senior Debt and the
Holders, the subordination provided in the Intercreditor Agreement, and appoints
the Trustee and the Collateral Agent its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Issuer (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
credits or otherwise) tending towards liquidation of the business and assets of
the Issuers, the filing of a claim for the unpaid balance of its Notes and
accrued interest in the form required in those proceedings.
|
The
Intercreditor Agreement Not To Prevent Events of
Default.
|
The
failure to make a payment on account of principal of or interest on the Notes by
reason of any provision of the Intercreditor Agreement will not be construed as
preventing the occurrence of an Event of Default.
|
Trustee’s
Compensation Not Prejudiced.
|
Nothing
in this Article X will apply to amounts due to the Trustee (other than payments
of Obligation owing to Holders in respect of Notes) pursuant to other sections
of this Indenture.
GUARANTEE
|
Unconditional
Guarantee.
|
Each
Guarantor hereby unconditionally guarantees, on a senior subordinated basis
jointly and severally, subordinated to Guarantor Senior Debt on the same basis
as the Notes are subordinated to Senior Debt, to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, the Notes or the obligations of the Issuers hereunder or
thereunder, that: (i) the principal of and interest on the Notes will
be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful, of the
Notes and all other obligations of the Issuers to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (ii) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
11.3. Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuers, and action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuers, any right to require a
proceeding first against the Issuers, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and in
this Guarantee. If any Holder or the Trustee is required by any court
or otherwise to return to the Issuers, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Issuers or any
Guarantor, any amount paid by the Issuers or any Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees
that, as between each Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article VI,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
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Severability.
|
In case
any provision of this Guarantee 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.
|
Limitation
of Guarantor’s Liability.
|
Each
Guarantor and by its acceptance hereof each Holder hereby confirms that it is
the intention of all such parties that the guarantee by such Guarantor pursuant
to its Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law. To
effectuate the foregoing intention, each Guarantor hereby irrevocably agrees
that the obligations of each Guarantor under its Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of each Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of each other Guarantor under its Guarantee or pursuant to Section
11.5, result in the obligations of each Guarantor under the Guarantee not
constituting such fraudulent transfer or conveyance.
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Release
of Guarantor.
|
(a) The
Guarantee of a Guarantor will be automatically and unconditionally released
without any action on the part of the Trustee or the Holders of the
Notes: (1) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including, without
limitation, by way of merger or consolidation),
if the
Issuers apply the Net Cash Proceeds of that sale or other disposition in
accordance with the applicable provisions of this Indenture; (2) in connection
with any sale of all of the Capital Stock of that Guarantor, if the Issuers
apply the Net Cash Proceeds of that sale in accordance with the applicable
provisions of this Indenture; (3) if Xxxxxx Publishing designates that Guarantor
as an Unrestricted Subsidiary in accordance with the applicable provisions of
this Indenture; or (4) upon the payment in full of the Notes.
In
addition, concurrently with any Legal Defeasance or Covenant Defeasance, the
Guarantors shall be released from all of their Obligations under their
respective applicable Guarantees.
(b) The
Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a request by the Issuers accompanied by an Officers’ Certificate and
Opinion of Counsel certifying as to the compliance with this Section
11.4.
|
Contribution.
|
In order
to provide for just and equitable contribution among the Guarantors, the
Guarantors agree, inter
se, that in the event any payment or distribution is made by any
Guarantor (a “Funding
Guarantor”) under its Guarantee, such Funding Guarantor shall be entitled
to a contribution from all other Guarantors in a pro
rata amount based on the Adjusted Net Assets (as defined below) of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Issuers’
obligations with respect to the Notes or any other Guarantor’s obligations with
respect to the Guarantee. “Adjusted
Net Assets” of such Guarantor at any date shall mean the lesser of the
amount by which the sum of (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
the Guarantee, of such Guarantor at such date and (y) the present fair salable
value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date), excluding debt in respect of the Guarantee of such Guarantor, as
they become absolute and matured.
|
Deferral
of Subrogation.
|
Until all
Obligations are paid in full, each Guarantor hereby irrevocably and
unconditionally defers any claims or other rights which it may now or hereafter
acquire against the Issuers that arise from the existence, payment, performance
or enforcement of such Guarantor’s obligations under the Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder against the Issuers, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Issuers,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Guarantor in violation of
the preceding sentence
and the
Notes shall not have been paid in full, such amount shall have been deemed to
have been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders, and shall, forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the deferral set forth in this Section 11.6 is knowingly made
in contemplation of such benefits.
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Execution
of Guarantee.
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To
evidence their Guarantees to the Holders set forth in this Article XI, the
Guarantors hereby agree to execute the Guarantee in substantially the form
attached hereto as Exhibit B, which shall be endorsed on each Note ordered to be
authenticated and delivered by the Trustee. Each Guarantor hereby
agrees that its Guarantee set forth in this Article XI shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Guarantee. Each such Guarantee shall be signed on behalf of
each Guarantor by one of its authorized Officers prior to the authentication of
the Note on which it is endorsed, and the delivery of such Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
such Guarantee on behalf of such Guarantor. Such signatures upon the
Guarantee may be by manual or facsimile signature of such Officers and may be
imprinted or otherwise reproduced on the Guarantee, and in case any such Officer
who shall have signed the Guarantee shall cease to be such Officer before the
Note on which such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Issuers, such Note nevertheless
may be authenticated and delivered or disposed of as though the Person who
signed the Guarantee had not ceased to be such Officer of the
Guarantor.
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Waiver
of Stay, Extension or Usury Laws.
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Each
Guarantor covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive each such Guarantor from performing its Guarantee
as contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) each such Guarantor 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.
COLLATERAL
AND SECURITY
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Security
Documents; Intercreditor Agreement.
|
(a) The
due and punctual payment of the principal of and interest on the Notes when and
as the same shall be due and payable, whether on an interest payment date, at
maturity,
by acceleration, repurchase, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes and performance of all other
obligations of the Obligors to the Holders or the Trustee under this Indenture,
the Notes and the Guarantees, according to the terms hereunder or thereunder,
shall be secured as provided in the Security Documents which the Obligors shall
enter into on the Issue Date. The Obligors shall deliver to the
Collateral Agent copies of all documents executed pursuant to this Indenture or
the Security Documents and shall do or cause to be done all such acts and things
as may be required by the provisions of the Security Documents, or reasonably
necessary or advisable to establish, perfect and maintain the security interest
in the Collateral contemplated hereby, by the Security Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes and the
Guarantees secured hereby and thereby, according to the intent and purposes
herein and therein expressed. The Issuers shall, and shall cause
their Subsidiaries to, at their own expense, take all reasonable actions as
reasonably necessary or advisable to establish, maintain and perfect a security
interest in and continuing Lien on all of the Collateral in favor of the
Collateral Agent for the benefit of the Holders, superior to the rights of all
third Persons, except for holders of Senior Debt, and subject to no Liens other
than Permitted Liens and other Liens permitted by this Indenture or the Security
Documents. Without limiting the generality of the foregoing, the
Issuers shall execute or cause to be executed and shall file or cause to be
filed such financing statements, continuation statements, and fixture filings
and such mortgages, or deeds of trust in all places necessary to establish,
maintain and perfect the Liens purported to be provided for in the Security
Documents.
(b) Each
Holder, by its acceptance of a Note:
(1) irrevocably
appoints and designates the Collateral Agent to act as its agent under this
Indenture and the Security Documents (and by its signature below, the Collateral
Agent accepts such appointment);
(2) authorizes
and directs the Collateral Agent to enter into the Security Documents to which
it is a party, to take such action on its behalf and in the Collateral Agent’s
designated capacity under the provisions of this Indenture and the Security
Documents and to perform its obligations and exercise its rights expressly
designated to it hereunder and thereunder in accordance herewith and
therewith;
(3) consents
and agrees to the terms of each Security Document as the same may be in effect
or may be amended, restated, supplemented or otherwise modified from time to
time in accordance with their respective terms, and authorizes and directs the
Collateral Agent to enter into the Security Documents and to perform its
obligations and exercise its rights thereunder in accordance therewith;
and
(4) appoints
and authorizes the Collateral Agent to enter into the Intercreditor Agreement as
provided in Section 10.1 and to act under and in accordance with the terms of
the Intercreditor Agreement.
Each
Holder agrees that any action taken by the Collateral Agent in accordance with
the provisions of this Indenture and the Security Documents, and the exercise by
the Collateral Agent of any rights or remedies set forth therein, together with
all other powers reasonably incidental thereto, shall be authorized and binding
upon all Holders.
The
duties of the Collateral Agent shall be ministerial and administrative in
nature, and the Collateral Agent shall not have a trust relationship with any
Holder, obligor or any other Person by reason of this Indenture or any of the
Security Documents.
(c) The
Collateral Agent shall not have any duties or responsibilities except those
expressly set forth in this Indenture and the Security Documents to which the
Collateral Agent is a party, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Indenture or the Security Documents or otherwise shall exist on the part of the
Collateral Agent. The conferral upon the Collateral Agent of any
right shall not imply a duty on the Collateral Agent’s part to exercise such
right, unless instructed to do so by the Required Noteholders in accordance with
this Indenture
(d) The
Collateral Agent may perform its duties under this Indenture and the Security
Documents to which the Collateral Agent is a party by or through receivers,
agents, attorneys-in-fact and employees. The Collateral Agent may
consult with and employ legal counsel, and shall be entitled to act or refrain
from acting upon, and shall be fully authorized and protected in taking, or
refraining from taking, action in reliance upon any advice or opinion given by
legal counsel.
(e) The
Collateral Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, consent, certificate, affidavit,
letter, certification, statement, notice or other communication, document or
conversation (including those by telephone or e-mail) believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person,
and upon the advice and statements of legal counsel (including without
limitation, counsel to the Company or any Obligor). The Collateral
Agent 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 or other paper or
document. The Collateral Agent shall have no liability for failing or
refusing to take any action under this Indenture or the Security Documents
unless it shall first receive such advice, direction, instruction or concurrence
of the Holders as is required hereunder; and the Collateral Agent has the right
to seek instructions from the Holders before acting or electing not to act under
this Indenture and/or the Security Documents. The Collateral Agent
shall in all cases have no liability in acting, or refraining from acting, under
this Indenture and the Security Documents in accordance with a direction or
instruction from the Required Noteholders, and such direction or instruction and
any action taken or failure to act pursuant thereto shall be binding upon all
the Holders.
(f) The
Collateral Agent shall not be deemed to have knowledge of any Default or Event
of Default unless a responsible officer of the Collateral Agent has received
written notice from the Company or the Required Noteholders specifying the
occurrence and nature thereof and stating that such notice is a “notice of
default”. The Collateral Agent shall take such action with respect to
any Default or Event of Default as shall be directed by the Required
Noteholders.
(g) The
Collateral Agent shall not be liable for any action taken or omitted to be taken
by it in connection with this Indenture or any Security Document or instrument
referred to or provided for herein or therein, except to the extent that any of
the foregoing are found by a final, nonappealable decision of a court of
competent
jurisdiction to
have resulted from its own gross negligence or willful
misconduct. The Collateral Agent does not assume any responsibility
for any failure or delay in performance or any breach by the Company or any
obligor of any obligations under this Indenture and the Security
Documents. The Collateral Agent shall not be responsible to the
Holders or any other Person for any recitals, statements, information,
representations or warranties contained in any Security Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Collateral Agent under or in connection with, this Indenture
or any Security Document; the execution, validity, genuineness, effectiveness or
enforceability of any Security Document; the genuineness, enforceability,
collectibility, value, sufficiency, location or existence of any Collateral, or
the validity, effectiveness, enforceability, sufficiency, extent, perfection or
priority of any Lien therein; the validity, enforceability or collectibility of
any Obligations; the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Obligor; or for
any failure of any Obligor to perform its obligations under this Indenture and
the Security Documents. The Collateral Agent shall have no obligation
to any Holder or any other Person to ascertain or inquire into the existence of
any Default or Event of Default, the observance or performance by any Obligor of
any terms of this Indenture and the Security Documents, or the satisfaction of
any conditions precedent contained in any Security Documents. The
Collateral Agent shall not be required to initiate or conduct any litigation or
collection or other proceeding under this Indenture and the Security Documents
without the express written direction of the Required
Noteholders. The Collateral Agent shall have the right at any time to
seek instructions from the Holders with respect to the administration of the
Security Documents.
(h) No
provision of this Indenture or the Security Documents shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or
thereunder or in the exercise of any of its rights or powers unless the
Collateral Agent shall have received indemnity satisfactory to the Collateral
Agent against potential costs and liabilities incurred by the Collateral Agent
relating thereto. Notwithstanding anything to the contrary contained
in this Indenture or any of the Security Documents, in the event the Collateral
Agent is entitled or required to commence an action to foreclose or otherwise
exercise its remedies to acquire control or possession of the Collateral, the
Collateral Agent shall not be required to commence any such action or exercise
any such remedy if the Collateral Agent has determined that the Collateral Agent
may incur personal liability as the result of the presence at, or release on or
from, the Collateral, of any hazardous substances unless the Collateral Agent
has received security or indemnity in an amount and in a form all satisfactory
to the Collateral Agent in its sole discretion, protecting the Collateral Agent
from all such liability. The Collateral Agent shall at any time be
entitled to cease taking any action described above if it no longer reasonably
deems any indemnity, security or undertaking from the Company or the Holders to
be sufficient. Without limiting the foregoing, the Collateral Agent
shall not be required to take any enforcement or other type of action under any
account control agreement (including without limitation the sending of a notice
of exclusive control or other similar action) unless the Collateral Agent shall
have received indemnity satisfactory to the Collateral Agent against potential
costs and liabilities incurred by the Collateral Agent relating
thereto.
(i) The
parties hereto and the Holders hereby agree and acknowledge that the Collateral
Agent shall not assume, be responsible for or otherwise be obligated for any
liabilities, claims, causes of action, suits, losses, allegations, requests,
demands, penalties, fines, settlements, damages (including foreseeable and
unforeseeable),
judgments, expenses
and costs (including but not limited to, any remediation, corrective action,
response, removal or remedial action, or investigation, operations and
maintenance or monitoring costs, for personal injury or property damages, real
or personal) of any kind whatsoever, pursuant to any environmental law as a
result of this Indenture, the Security Documents or any actions taken pursuant
hereto or thereto. Further, the parties hereto and the Holders hereby
agree and acknowledge that in the exercise of its rights under this Indenture
and the Security Documents, the Collateral Agent may hold or obtain indicia of
ownership primarily to protect the security interest of the Collateral Agent in
the Collateral, including without limitation the properties under the Mortgages,
and that any such actions taken by the Collateral Agent shall not be construed
as or otherwise constitute any participation in the management of such
Collateral, including without limitation the properties under the Mortgages, as
those terms are defined in Section 101(20)(E) of the Comprehensive Environmental
Response, Compensation, and Liability Act 42 U.S.C. §§ 9601 et
seq., as amended.
(j) This
Article XII, the Security Agreement and the other Security Documents (other than
the Intercreditor Agreement) will be subject to the terms, limitations and
conditions set forth in any Intercreditor Agreement, except as to such terms,
limitations and conditions that relate to the rights, duties and immunities of
the Trustee and the Collateral Agent, which shall be subject to the terms
hereof.
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Recording
and Opinions.
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The
Issuers and the Guarantors shall furnish to the Trustee no later than June 30 in
each year beginning with March 31, 2011, an Opinion of Counsel, dated as of such
date, either:
(a) (A)
to the effect that, in the opinion of such counsel, action has been taken with
respect to the recording, registering, filing, re-recording, re-registering and
re-filing of all supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary to maintain
perfection of the Lien of the Security Documents and reciting with respect to
the security interest in the Collateral the details of such action or referring
to prior Opinions of Counsel in which such details are given, and (B) to the
effect that, in the opinion of such counsel, based on relevant laws as in effect
on the date of such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are necessary as of
such date and during the succeeding 12 months fully to preserve and protect, to
the extent such protection and preservation are possible by filing, the rights
of the Holders, the Collateral Agent and the Trustee hereunder and under the
Security Documents with respect to the security interest in the Collateral;
or
(b) to
the effect that, in the opinion of such counsel, no such action is necessary to
maintain such Lien.
The
Issuers will otherwise comply with the provisions of TIA § 314(b).
(a) Subject
to subsections (b), (c) and (d) of this Section 12.3 and the Intercreditor
Agreement, Collateral may be released from the Lien and security interest
created by the Security Documents at any time or from time to time in accordance
with the provisions of the Security Documents, the Intercreditor Agreement or as
provided hereby. In addition, subject to the terms of the
Intercreditor Agreement, upon the request of the Company pursuant to an
Officers’ Certificate and an Opinion of Counsel certifying that all conditions
precedent under the Indenture have been met, then (at the sole cost and expense
of the Company) the Collateral Agent shall release (or cause to be released)
Collateral that is sold, conveyed or disposed of in compliance with the
provisions of this Indenture; provided,
that if such sale, conveyance or disposition constitutes an Asset Sale, the
Company will apply the Net Cash Proceeds in compliance with Section
4.10. Upon receipt of such Officers’ Certificate and Opinion of
Counsel the Collateral Agent shall promptly execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of any Collateral permitted to be released pursuant to this
Indenture, the Security Documents or the Intercreditor Agreement.
(b) No
Collateral may be released from the Lien and security interest created by the
Security Documents pursuant to the provisions of the Security Documents and the
Intercreditor Agreement unless the certificate required by this Section 12.3 has
been delivered to the Collateral Agent.
(c) The
release of any Collateral from the terms of this Indenture, the Security
Documents and the Intercreditor Agreement shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if and
to the extent the Collateral is released pursuant to the terms of the Security
Documents, this Indenture and the Intercreditor Agreement. To the
extent applicable, the Issuers shall cause TIA § 313(b), relating to reports,
and TIA § 314(d), relating to the release of property or securities from the
Lien and security interest of the Security Documents and relating to the
substitution therefor of any property or securities to be subjected to the Lien
and security interest of the Security Documents, to be complied
with. Any certificate or opinion required by TIA § 314(d) may be made
by an Officer of the Company except in cases where TIA § 314(d) requires that
such certificate or opinion be made by an independent Person, which Person shall
be an independent engineer, appraiser or other expert selected or approved by
the Issuers in the exercise of reasonable care.
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Additional
Collateral.
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If at any
time, the Issuers or any Guarantor acquires in fee simple any real property or
any entity which owns in fee simple any real property becomes a Guarantor, which
real property has a fair market value of at least $3 million, in either case as
determined in good faith by the Company’s Board of Directors, the Issuers or
such Guarantor shall, grant to the Collateral Agent, for the benefit of the
Holders, a Mortgage or Amended and Restated Mortgage, as appropriate, on such
real property that is not already covered by the Security
Documents. All such Mortgages, shall be in form and substance
reasonably satisfactory to the Required Noteholders. In connection
therewith, within 60 days following such request, the Issuers shall deliver or
caused to be delivered such Mortgage, proper fixture filings under the UCC on
Form UCC-1, Opinion of Counsel, subordination, nondisturbance and
attornment agreement,
assignment of leases, landlord consent, tenant estoppel certificate, survey and
insurance certificates and such other customary documents relating to the
Mortgages that the Required Noteholders may reasonably request, in each case, in
form and substance reasonably satisfactory to the Required
Noteholders.
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Certificates
of the Issuers.
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(a) The
Issuers shall furnish to the Trustee and the Collateral Agent, prior to each
proposed release of Collateral pursuant to the Security Documents and the
Intercreditor Agreement:
(1) all
documents required by TIA § 314(d); and
(2) an
Opinion of Counsel, which may be rendered by internal counsel to the Issuers to
the effect that such accompanying documents constitute all documents required by
TIA § 314(d).
(b) The
Trustee, to the extent permitted by Sections 7.1 and 7.2 hereof, and the
Collateral Agent may accept as conclusive evidence of compliance with the
foregoing provisions the appropriate statements contained in such documents and
such Opinion of Counsel.
(c) Notwithstanding
anything to the contrary in this Section 12.5, the Issuers shall not be required
to comply with all or any portion of TIA § 314(d) if they determine, in good
faith based on advice of counsel, that under the terms of TIA § 314(d) and/or
any interpretation or guidance as to the meaning thereof of the SEC or its
staff, including “no action” letters or exemptive orders, all or any portion of
TIA § 314(d) is inapplicable to one or a series of releases of Collateral or the
SEC will not take any action against the Issuers for failure to comply with, or
that the Issuers are exempt from, all or any portion of TIA §
314(d). Any determination made pursuant to this Section 12.5 shall be
binding on the Trustee, without the further action of the Trustee and the
Trustee shall not be liable for any determination made by the Issuers in
connection with TIA § 314(d)
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No
Determination by the Trustee.
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In the
event that the Issuers wish to release Collateral in accordance with the
Security Documents and the Intercreditor Agreement and has delivered the
certificates and documents required by the Security Documents, the Intercreditor
Agreement and Sections 12.3 and 12.5 hereof, the Trustee will be entitled to
rely on an Opinion of Counsel stating that it has received all documentation
required by TIA § 314(d) in connection with such release.
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Authorization
of Actions to Be Taken by the Trustee and the Collateral Agent Under the
Security Documents.
|
The
Trustee shall, upon the instructions of the Required Noteholders, direct the
Collateral Agent to take all actions it deems necessary or appropriate in order
to:
(a) enforce
any of the terms of the Security Documents and the Intercreditor Agreement;
and
(b) collect
and receive any and all amounts payable in respect of the Obligations of the
Issuers and the Guarantors hereunder and under the Notes and the
Guarantees.
(c) Subject
to the provisions of the applicable Security Documents, each Holder by
acceptance of any Notes agrees that the Collateral Agent shall execute and
deliver the Security Documents to which it is a party, and all agreements,
documents and instruments incidental thereto, and act in accordance with the
terms thereof. For the avoidance of doubt, the Collateral Agent shall
have no discretion under this Indenture, the Security Documents or the
Intercreditor Agreement and shall not be required to take any action or make or
give any determination, consent, approval, request or direction without the
written direction of the Required Noteholders.
(d) Prior
to the occurrence of an Event of Default, the Company may direct the Collateral
Agent in connection with any action required or permitted by this Indenture, the
Security Documents or the Intercreditor Agreement. After the
occurrence of an Event of Default, the Trustee may direct the Collateral Agent
in connection with any action required or permitted hereby or
thereby.
The
Collateral Agent shall, upon the instruction of the Required Noteholders, have
the power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents, this Indenture or the
Intercreditor Agreement, and such suits and proceedings as are expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of, or compliance with, any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders or of the Collateral Agent).
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Section
12.8.
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Action
by the Trustee or Collateral Agent.
|
In each
case that the Trustee or the Collateral Agent may or is required hereunder or
under any Security Document, the Intercreditor Agreement or any other document
relating to the Indenture to take any action on behalf of the Holders (an “Action”),
including without limitation to make any determination, to give consents, to
exercise rights, powers or remedies, to release or sell Collateral or otherwise
to act hereunder or under any Security Document, the Intercreditor Agreement, or
any other document relating to the Indenture, the Trustee and the
Collateral Agent may seek direction from the Required
Noteholders. Neither the Trustee nor the Collateral Agent shall be
liable with respect to any Action taken or omitted to be taken by it in
accordance with the direction from the Required Noteholders. If the
Trustee or the Collateral Agent shall request direction from the Required
Noteholders with respect to any Action, the Trustee and the Collateral Agent
shall be entitled to refrain from such Action unless and until the Trustee or
the Collateral Agent shall have received direction from the Required
Noteholders, and the Trustee and the Collateral Agent shall not incur liability
to any Person by reason of so refraining.
Notwithstanding
anything to the contrary in this Indenture, any Security Document or the
Intercreditor Agreement in no event shall the Collateral Agent be responsible
for, or have any duty or obligation with respect to the recording, filing,
registering, perfection, protection or maintenance of the security interests or
Liens intended to be created by the Security Documents (including without
limitation the filing or continuation of any UCC financing or continuation
statements or similar documents or instruments), nor shall the Collateral Agent
be responsible for, and the Collateral Agent makes no representation regarding,
the validity, effectiveness or priority of any of the Security Documents, the
Intercreditor Agreement or the security interests or Liens intended to be
created thereby.
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Replacement
of Collateral Agent.
|
Subject
to the appointment and acceptance of a successor Collateral Agent as provided
below, the Collateral Agent may resign at any time by giving notice thereof to
the Company, the Trustee and the Holders. Upon receipt of such
notice, the Company shall appoint a successor Collateral Agent. Upon
acceptance by a successor Collateral Agent of an appointment to serve as
Collateral Agent hereunder and under the Security Documents, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, duties and obligations of the retiring Collateral Agent without
further act but the retiring Collateral Agent shall continue to have the
benefits of the compensation, reimbursement and indemnification set forth in
this Indenture and the Security Documents. Notwithstanding any
Collateral Agent’s resignation, the provisions of this Article XII shall
continue in effect for its benefit with respect to any actions taken or omitted
to be taken by it while Collateral Agent. Any successor to Wilmington
Trust FSB by merger or acquisition of stock or acquisition of the corporate
trust business shall continue to be Collateral Agent hereunder without further
act on the part of the parties hereto, unless such successor resigns as provided
above.
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Authorization
of Receipt of Funds by the Collateral Agent Under the Security
Documents.
|
The
Collateral Agent is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents and the Intercreditor
Agreement, and to make further distributions of such funds to the Holders
according to the provisions of this Indenture, the Security Documents and the
Intercreditor Agreement.
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Termination
of Security Interest.
|
Subject
to the Intercreditor Agreement, upon the full and final payment and performance
of all Obligations of the Obligors under this Indenture, the Notes and the
Guarantees or in connection with the discharge of all Obligations (exclusive of
Obligations expressly stated to survive pursuant to Article VII and Article
VIII) under the Notes, the Guarantees and this Indenture as described under
Article VIII and Article XIII (including a release of Guarantees under Section
11.4 hereunder or designation of a Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with the terms of this Indenture), the Issuers shall
deliver an Officers’ Certificate to the Collateral Agent stating that such
Obligations have been paid in full or discharged, as the case may be, and
instruct the Collateral Agent to release, and the Collateral Agent
shall release, the Liens pursuant to this Indenture, the Intercreditor Agreement
and the Security Documents.
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Conflicts
Between Indenture and Security
Documents.
|
If any
conflict or inconsistency exists between this Indenture and any of the Security
Documents, this Indenture shall govern; provided,
however, that to the extent a Security Document is governed by a law
other than the internal laws of the State of New York, this Indenture shall not
require that the internal laws of the State of New York govern such Security
Document; and provided,
further, that to the extent the Indenture or the other Indenture
Documents conflict with the Intercreditor Agreement, the Intercreditor Agreement
shall govern.
SATISFACTION
AND DISCHARGE
|
Satisfaction
and Discharge.
|
This
Indenture will be discharged and will cease to be of further effect (except as
set forth below) and the Trustee, at the expense of the Issuers, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when:
(1) either:
(a) all
the Notes theretofore authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced or paid as provided in Section 2.7 and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuers and thereafter repaid to the Issuers
or discharged from such trust) have been delivered to the Trustee for
cancellation; or
(b) all
Notes not theretofore delivered to the Trustee for cancellation (1) have become
due and payable or (2) will become due and payable within one year, or are to be
called for redemption within one year, under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuers, and the Issuers have
irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together with
irrevocable instructions from the Issuers directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may
be;
(2) the
Issuers have paid all other sums payable under this Indenture by Xxxxxx
Publishing; and
(3) the
Issuers have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent under this Indenture relating to
the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the Issuers’ obligations in
Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 14.2, 14.3 and 14.4, and the
Trustee’s and Paying Agent’s obligations in Section 13.2 shall survive until the
Notes are no longer outstanding. Thereafter, only the Issuers’
obligations in Section 7.7 shall survive.
|
Application
of Trust.
|
All money
deposited with the Trustee pursuant to Section 13.1 shall be held in trust and,
at the written direction of the Issuers, be invested prior to maturity of any
payment Obligations in U.S. Government Securities, and applied by the Trustee in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for the payment of which money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by
law.
MISCELLANEOUS
|
Trust
Indenture Act Controls.
|
If any
provision hereof limits, qualifies or conflicts with a provision of the TIA or
another provision that would be required or deemed under the TIA to be part of
and govern this Indenture if this Indenture were subject thereto, the latter
provision shall control. If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
|
Notices.
|
Any
notice or communication by the Issuers or the Trustee to others is duly given if
in writing and delivered in Person or mailed by first class mail (registered or
certified, return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others’ address:
If to the
Issuers:
Xxxxxx
Publishing Group, LLC
720 Xxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxx
X. Xxxxxxxx
Fax: (000) 000-0000
With a
copy to:
Xxxx
Xxxxxxx, PC
800 Xxxxx
Xxxxxx, 0xx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxx
X. Xxxxxxxx
Fax: (000)
000-0000
If to the
Trustee:
Wilmington
Trust FSB
c/o
Wilmington Trust Company
Xxxxxx
Square North
1100
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Fax:
(000) 000-0000
The
Issuers or the Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All
notices and communications (other than those sent to Holders) shall be deemed to
have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA § 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders.
If a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives
it.
If the
Issuers mail a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.
|
Communication
by Holders of Notes with Other Holders of
Notes.
|
Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Issuers, the
Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).
|
Certificate
and Opinion as to Conditions
Precedent.
|
Upon any
request or application by the Issuers and/or any Guarantor to the Trustee to
take any action under this Indenture, the Issuers and/or any Guarantor shall
furnish to the Trustee:
(a) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
|
Statements
Required in Certificate or Opinion.
|
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and
shall include:
(a) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) 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;
(c) a
statement that, in the opinion of such Person, he or she 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
satisfied; and
(d) a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
|
Rules
by Trustee and Agents.
|
The
Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
|
No
Personal Liability of Directors, Managers, Officers, Employees, Members
and Stockholders.
|
No
director, officer, employee or member of Xxxxxx Publishing, Xxxxxx Finance, the
Guarantors, Xxxxxx Communications or any Subsidiary of any of them, as such,
will have any liability for any obligations under the Notes, this Indenture or
the Guarantees or for any claim based on, in respect of, or by reason of, those
obligations or their creation. Each holder of the Notes by accepting
a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of each Note. That waiver
may not be effective to waive liabilities under the federal securities laws, and
it is the view of the Commission that such a waiver is against public
policy.
|
Governing
Law; Submission to Jurisdiction; Waiver of Jury
Trial.
|
THIS
INDENTURE, THE GUARANTEES AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF
THE ISSUERS, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE
ISSUERS, THE GUARANTORS AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
TRUSTEE OR ANY HOLDER OF THE NOTES TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE ISSUERS OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
|
No
Adverse Interpretation of Other
Agreements.
|
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of Xxxxxx Publishing or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
|
Successors.
|
All
agreements of the Issuers in this Indenture and the Notes shall bind their
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
|
Severability.
|
In case
any provision in this Indenture or in the Notes 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.
|
Counterpart
Originals.
|
The
parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
The Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture, which have been inserted for convenience of reference only, are
not to be considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
[Signatures
on following page]
SIGNATURES
|
XXXXXX
PUBLISHING GROUP, LLC
|
|
|
By:
|
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Senior Vice President, Finance
|
|
|
XXXXXX
PUBLISHING FINANCE CO.
|
|
|
By:
|
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Senior Vice President, Finance
|
|
|
YANKTON
PRINTING COMPANY
BROADCASTER
PRESS, INC.
THE
SUN TIMES, LLC
XXXXX
NEWS, LLC
LOG
CABIN DEMOCRAT, LLC
ATHENS
NEWSPAPERS, LLC
SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
XXXXXXXX
COMMUNICATIONS, INC.
FLORIDA
PUBLISHING COMPANY
THE
OAK RIDGER, LLC
MPG
ALLEGAN PROPERTY, LLC
MPG
HOLLAND PROPERTY, LLC
|
|
|
By:
|
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Senior Vice President, Finance
|
|
|
SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
|
|
|
By:
|
Xxxxxx
Publishing Group, LLC
its
General Partner
|
|
By:
|
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Senior Vice President, Finance
|
|
|
WILMINGTON
TRUST FSB,
solely
as Trustee and Collateral Agent
|
|
|
By:
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Vice President
|
|
GUARANTORS
Yankton
Printing Company
Broadcaster
Press, Inc.
The Sun
Times, LLC
Xxxxx
News, LLC
Log Cabin
Democrat, LLC
Athens
Newspapers, LLC
Southeastern
Newspapers Company, LLC
Xxxxxxxx
Communications, Inc.
Florida
Publishing Company
Southwestern
Newspapers Company, L.P.
The Oak
Ridger, LLC
MPG
Allegan Property, LLC
MPG
Holland Property, LLC
LIST
OF ACCEPTABLE FINANCIAL INSTITUTIONS
|
1.
|
Amarillo
National Bank, X.X. Xxx 0, Xxxxxxxx, XX
00000
|
|
2.
|
Bank
of America, N.A., 000 0xx
Xxxxxx, Mail Code WA1-501-08-21, Xxxxxxx, XX
00000
|
|
3.
|
First
National Bank Alaska, 0000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX
00000
|
|
4.
|
Synovus
Financial Corp., X.X. Xxx 000, Xxxxxxxx, XX 00000, for itself and on
behalf of all of its affiliates, including, but not limited to, Columbus
Bank and Trust Company, 0000 Xxxxxxxx, Xxxxxxxx, XX
00000
|
|
5.
|
Wachovia
Bank, National Association, Mail Address Code 1129-072, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx X-0, Xxxxxxxxx, XX
00000
|
|
6.
|
Xxxxx
Fargo Bank, National Association, Mail Address Code N1794-013, 000 Xxxxx
Xxxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxx Xxxxx, XX 00000
|
SCHEDULE
C
LIST
OF PROPERTIES SUBJECT TO A MORTGAGE
|
Property
Owner Name
|
Property
Location
|
Municipal
Address of Property
|
|
|
1.
|
Southeastern
Newspapers Company, LLC
|
Juneau,
AK
|
3100
Channel Drive, Juneau, AK
|
|
2.
|
Athens
Newspapers, LLC
|
Xxxxxx
County, GA
|
0
Xxxxx Xxxxx, Xxxxxx, XX 00000
|
|
3.
|
Southeastern
Newspapers Company, LLC
|
Richmond
County, GA
|
721,
723, 725-731 & 000-000 Xxxxx Xxxxxx, 000-000 Xxxxxxxx Xxxxxx and 000
Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
|
|
4.
|
Xxxxxx
Publishing Group, LLC
|
Shawnee
County, KS
|
000
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000
|
|
5.
|
Xxxxxx
Publishing Group, LLC
|
Crow
Wing County, MN
|
000
Xxxxx Xxxxxx XX, Xxxxxxxx, XX 00000
|
|
6.
|
Southwestern
Newspapers Company, XX
|
Xxxxxx
County, TX
|
000
Xxxxx Xxx Xxxxx & 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, XX
00000
|
|
7.
|
Southwestern
Newspapers Company, LP
|
Lubbock
County, TX
|
702
& 000 Xxxxxx X, Xxxxxxx, XX 00000
|
|
8.
|
Xxxxxx
Publishing Group, LLC
|
St.
Xxxxx County, FL
|
0
Xxxx Xxxxx, Xx. Xxxxxxxxx, XX 00000
|
|
9.
|
Xxxxxx
Publishing Group, LLC
|
Xxxxx
County, FL
|
0
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000
|
EXHIBIT A1
FORM
OF NOTE
(Face of
Note)
XXXXXX
PUBLISHING GROUP, LLC
XXXXXX
PUBLISHING FINANCE CO.
FLOATING
RATE SECURED NOTE DUE 2014
[THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR
A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]2
1 NTD:
Sections of the Note that track Indenture will be conformed to Indenture upon
its finalization.
XXXXXX
PUBLISHING GROUP, LLC
XXXXXX
PUBLISHING FINANCE CO.
FLOATING
RATE SECURED NOTE DUE 2014
|
CUSIP
No. _______
|
|
|
No.___________
|
$________________
|
Interest
Payment Dates: January 1, April 1, July 1, October 1
Record
Dates: December 15, March 15, June 15, September 15
XXXXXX PUBLISHING GROUP,
LLC, a Georgia limited liability company (the “Company”),
and XXXXXX PUBLISHING FINANCE CO., a Georgia corporation (“Xxxxxx
Finance” and, together with the Company, the “Issuers,”
which term includes any successor entity under the Indenture hereinafter
referred to), as joint and several obligors, for value received, promise to pay
to CEDE & CO., or registered assigns, the principal sum of ______________
Dollars on September 1, 2014.3
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
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 Note shall not be
entitled to any benefits under the Indenture referred to on the reverse hereof
or be valid or obligatory for any purpose.
[Signatures
on following page]
IN
WITNESS WHEREOF, the Issuers have caused this Note to be duly
executed.
|
XXXXXX
PUBLISHING GROUP, LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
XXXXXX
PUBLISHING FINANCE CO.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
CERTIFICATE
OF AUTHENTICATION
This is
one of the Floating Rate Secured Notes due 2014 referred to in the
within-mentioned Indenture.
|
WILMINGTON
TRUST FSB,
as
Trustee
|
|
|
By:
Authorized
Signatory
|
|
|
Dated:
|
(Back of
Note)
Floating
Rate Secured Notes due 2014
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest. The
Issuers promise to pay interest on the principal amount of this Note in
accordance with the following terms:
(a) during
such time that any Refinanced Debt is outstanding, this Note shall accrue
interest (the “Refinance
Term Interest”) at the aggregate rate of 5% plus
the highest regular interest rate payable on such Refinanced Debt, provided
that in any event, the Refinance Term Interest shall not be lower than 10% per
annum. During the period when Refinance Term Interest is accruing on
this Note, such Refinance Term Interest shall be payable 50% in cash, payable
quarterly in arrears, and 50% as PIK Interest, compounded quarterly in
arrears. By way of example, if the Refinanced Debt has a per annum
interest rate of 7%, the per annum interest rate of this Note shall be 12% and
shall be payable 6% in cash and 6% in PIK Interest; and
(b) during
such time that no Refinanced Debt is outstanding, this Note shall accrue cash
interest at the rate of 10% per annum, payable quarterly in arrears, until
maturity.
The
Issuers will pay interest quarterly on January 1, April 1, July 1, and October 1
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an “Interest
Payment Date”). Interest on the Note will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided,
further,
that the first Interest Payment Date shall be April 1, 2010. The
Issuers shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) during any period in which an Event of Default has
occurred and is continuing (including any interest on overdue principal,
Redemption Price and Purchase Price and on overdue installments of interest
(without regard to any applicable grace period)) at the rate equal to 2% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful, which excess rate shall be paid in cash. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2.
Method
of Payment. The Issuers will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on December 15, March 15, June 15, and September 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. Any
such installment of interest not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such Interest Payment
Date, and may be paid to the registered Holders at the close of business on a
special interest payment date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders not
less than 10 days prior to such special interest payment date, or may be paid at
any time in any other lawful manner not inconsistent with
the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. The Notes will be payable as to principal,
Redemption Price, Purchase Price, interest (whether cash interest or PIK
Interest, subject to the next paragraph), at the office or agency of the Issuers
maintained for such purpose within or without the City and State of New York,
or, at the option of the Issuers, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
provided
that payment by wire transfer of immediately available funds will be required
with respect to principal, Redemption Price and Purchase Price of, and cash
interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Trustee or the Paying
Agent. Such payment shall be in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and
private debts.
All PIK
Interest payable pursuant to this Note will be payable by [increasing the
principal amount of this Note by an amount equal to the amount of PIK Interest
for the applicable quarterly interest period (rounded up to the nearest whole
dollar) (or, if necessary, pursuant to requirements of the Depositary or
otherwise, to authenticate a new Global Note executed by the Issuers with such
increased principal amount)]4 [issuing additional Notes in an
aggregate principal amount equal to the amount of PIK Interest for the
applicable interest period (rounded up to the nearest whole dollar) and the
Trustee will, at the request of the Issuers, authenticate and deliver such PIK
Notes for original issuance to the Holder of this Note on the relevant record
date]5. If the Company is required to pay
PIK Interest on any Interest Payment Date it must deliver, not less than 45 days
prior to such Interest Payment Date, an authentication order to the Trustee
specifying the aggregate amount of PIK Interest to be paid through increases in
the Global Note and through the issuance of additional Notes; provided,
that the Issuers shall deliver an updated authentication order on the day
preceding an Interest Payment Date to the extent modifications in the amount of
PIK Interest to be paid are needed in accordance with the terms of the Indenture
due to the continuation or cessation of an Event of Default. On the
relevant Interest Payment Date, the Trustee shall, at the request of the
Issuers, record increases in the Global Note and authenticate additional Notes,
as appropriate, in the aggregate principal amounts required to pay the PIK
Interest then due.
3.
Paying
Agent and Registrar. Initially, Wilmington Trust FSB, the
Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar
without notice to any Holder. The Issuers may act in any such
capacity so long as no Event of Default has occurred and is
continuing.
4.
Indenture
and Guarantees; Security Documents and Intercreditor
Agreement. The Issuers are issuing the Notes on the Issue Date
under an Indenture dated as of March 1, 2010 (the “Indenture”)
among the Issuers, the Guarantors, the Trustee and the Collateral
Agent. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S.C. Code §§ 77aaa-77bbbb).
The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. The Notes are general
obligations of the Issuers. Payment on each Note is guaranteed on a
secured basis, jointly and severally, by the Guarantors pursuant to Article XI
of the Indenture. The Notes are secured by the Collateral as set
forth in the Security Documents, subject to the terms of the Intercreditor
Agreement.
5.
Optional
Redemption. The Issuers may redeem any or all of the Notes at
any time, upon not less than 30 nor more than 60 days’ prior notice in amounts
of $1,000 or an integral multiple thereof at the Redemption Prices (expressed as
a percentage of the principal amount) set forth below, if redeemed during the
12-month period beginning on the Issue Date or the anniversary of the Issue Date
of the years indicated below:
|
Year
|
Redemption
Price
|
|
2010
|
103.000%
|
|
2011
|
102.000%
|
|
2012
|
101.000%
|
|
2013
and thereafter
|
100.000%
|
in each
case together with accrued and unpaid interest on the Notes redeemed to the
Redemption Date.
If less
than all the Notes are to be redeemed, the Trustee will select the particular
Notes or portions thereof to be redeemed by lot, pro
rata or by any other method the Trustee shall deem fair and
appropriate.
6. Repurchase
upon Application of Excess Proceeds.
(a) Not
later than the 17th Business Day of each month (each an “Excess
Cash Flow Payment Date”), commencing on the first full calendar month
following the Issue Date, if the Issuers have Excess Free Cash Flow for the
one-month period ended on the last day of the previous month (each such
period, “Excess
Cash Flow Period”), the Company shall apply an amount equal to 100% of
the amount of such Excess Free Cash Flow to amortize outstanding Indebtedness,
including accrued interest, fees and all other amounts owing thereon, in the
following priority, (i) Indebtedness under the Working Capital Facility, (ii)
Indebtedness under the Refinanced Debt (if applicable); and (iii) Indebtedness
under the Tranche B Loan and to redeem the Notes on a pro
rata
basis; provided that the order of priority as between the indebtedness described
in clauses (i) and (ii) may be reversed in accordance with the terms of such
indebtedness. The Notes shall be redeemed at a redemption price of
100% of the aggregate principal amount of the Notes redeemed plus accrued and
unpaid interest to the date of redemption.
(b)
Any prepayment pursuant to this Paragraph 6 shall be made pursuant to the
provisions of Sections 3.2 through 3.6 and Section 3.11 of the
Indenture.
7. Notice
of Redemption. Subject to the provisions of the Indenture, a
notice of redemption will be mailed by first-class mail at least 30 days but not
more than 60 days
(or 45
days in the case of mandatory redemption) before the Redemption Date to each
Holder whose Notes are to be redeemed at its registered address; provided, that
in the case of a redemption pursuant to Section 3.11 of the Indenture, the
notice of redemption shall be mailed as soon as practicable before the
Redemption Date. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption;
provided, that in the case of a redemption pursuant to Section 3.11 of the
Indenture, the principal amount of Notes to be redeemed or repurchased shall be
in amounts of $1.00 or integral multiples of $1.00.
8.
Repurchase
at Option of Holder. Sections 3.9, 4.10 and 4.21 of the
Indenture provide that after an Event of Loss, an Asset Sale, or upon the
occurrence of a Change of Control, and subject to further limitations contained
therein, the Issuers shall make an offer to purchase certain amounts of Notes at
a purchase price, in cash, equal to 101% of the aggregate principal amount of
Notes repurchased, plus accrued and unpaid interest on the Notes, to the
repurchase date, in accordance with the procedures set forth in the
Indenture.
9.
Denominations,
Transfer, Exchange. The Notes are in registered form without
coupons and issued in integral multiples of $1.00 (in each case with a minimum
denomination of at least $1.00). The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the
Issuers may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except
for the unredeemed portion of any Note being redeemed in part. Also,
it need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding interest payment date.
10. Persons
Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
11. Amendment,
Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes and the Guarantees may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture, the Notes and the Guarantees
may be amended or supplemented to cure any ambiguity, defect or inconsistency,
to provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Issuers’ or any Guarantor’s
obligations to Holders of the Notes in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, or to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. Defaults
and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest, on the Notes; (ii) the
failure to pay the principal on any Notes, when such principal becomes due and
payable at maturity, upon redemption, repurchase or otherwise (including the
failure to make a payment to purchase Notes tendered pursuant to a Change of
Control Offer, Net Proceeds Offer or an Event of Loss Offer); (iii) default of
any covenant contained in the Indenture for 30 days after notice to Xxxxxx
Publishing by the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Notes outstanding (except in the case of a default with
respect to Sections 3.9, 4.10, 4.21 and 5.1 of the Indenture which will
constitute an Event of Default with such notice requirement but without the
passage of time requirement); (iv) the failure to pay at final maturity (giving
effect to any applicable grace periods and any extensions thereof) the stated
principal amount of any Indebtedness of Xxxxxx Publishing or any Restricted
Subsidiary of Xxxxxx Publishing, or the acceleration of the final stated
maturity of any such Indebtedness (which acceleration is not rescinded, annulled
or otherwise cured within 20 days of receipt by Xxxxxx Publishing or such
Restricted Subsidiary of notice of any such acceleration) if the aggregate
principal amount of such Indebtedness is $5.0 million or more or the aggregate
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at final stated
maturity or which has been accelerated (in each case with respect to which the
20-day period described above has elapsed), aggregates $10.0 million or more at
any time; (v) certain final judgments for the payment of money that remain
undischarged for a period of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $10.0 million; (vi) certain events of bankruptcy
or insolvency with respect to the Xxxxxx Publishing, Xxxxxx Finance or any
Significant Subsidiary of Xxxxxx Publishing, (vii) any Guarantee of a
Significant Subsidiary ceases to be in full force and effect or any Guarantee of
a Significant Subsidiary is declared to be null and void and unenforceable or
any Guarantee of a Significant Subsidiary is found to be invalid or any
Guarantor that is a Significant Subsidiary denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance with the
terms of the Indenture), (viii) the actual or asserted invalidity or impairment
of any material provision in the Indenture or any other Indenture Document
delivered in connection with the Issuance of the Notes or pursuant to the
Indenture, (ix) (a) the Liens created by the Security Documents shall at any
time not constitute a valid and perfected Lien on the Collateral intended to be
covered thereby (to the extent perfection by filing, registration, recordation
or possession is required herein or therein) in favor of the Collateral Agent,
free and clear of all other Liens (other than Liens permitted under the
Indenture and under the respective Security Documents), (b) except for
expiration in accordance with its terms, any of the Security Documents shall for
whatever reason be terminated or cease to be in full force and effect, or (c)
the enforceability thereof shall be contested by Xxxxxx Publishing, Xxxxxx
Finance or any Guarantor; (x) the interest rate payable on the Refinanced Debt
exceeds LIBOR plus 970 basis points, as calculated on a per annum basis,
provided that if the Refinanced Debt bears a fixed rate of interest, such
determination shall be made on the date such Refinanced Debt is incurred; (xi)
any Obligor or Restricted Subsidiary makes a payment of cash interest on the
Tranche B Loan or makes any principal payment on, purchases, redeems, prepays or
otherwise acquires for cash, any portion of the Tranche B Loan prior to the
payment in full in cash of the Obligations under the Indenture, except as
expressly provided in this Indenture or in connection with the Required
Refinancing.
If any Event of Default
(other than those arising from certain events of bankruptcy or insolvency
described in the Indenture) occurs and is continuing, the Trustee or the
Holders
of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately; provided, however, that
if there are any amounts outstanding under the Refinanced Debt, if applicable,
the Notes shall not become due and payable until the first to occur of (i) an
acceleration under the Refinanced Debt, if applicable and (ii) five Business
Days after receipt by Xxxxxx Publishing and the representative under the
Refinanced Debt, if applicable, of such acceleration notice but only if such
Event of Default is then continuing. Upon any such declaration, the
entire principal amount of, and accrued and unpaid interest, on the Notes shall
become immediately due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to payment on any
Note) if it determines that withholding notice is in their
interest. The Holders of a majority in principal amount of the Notes
may waive any existing or past Default or Event of Default under the Indenture,
and its consequences, except a default in the payment of the principal of, or
interest on any Notes. The Issuers are required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Issuers are required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of
Default.
13. Trustee
Dealings with the Issuers. Subject to certain limitations, the
Trustee under the Indenture, in its individual or any other capacity, may become
owner or pledgee of Notes and may otherwise deal with the Issuers or their
Affiliates as if it were not Trustee.
14. No
Recourse Against Others. No past, present or future director,
manager, officer, employee, incorporator (or Person forming any limited
liability company), agent, member or stockholder of the Issuers, as such, shall
have any liability for any obligations of the Issuers under the Notes, the
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the
Notes.
15. Authentication. This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
16. Abbreviations. Customary
abbreviations may be used in the name of a Holder or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
17. Discharge
Prior to Maturity. If the Issuers deposit with the Trustee or
Paying Agent cash or U.S. Government Securities sufficient to pay the principal
or Redemption Price of, and interest on, the Notes to maturity or a specified
Redemption Date and satisfies certain conditions specified in the Indenture, the
Issuers will be discharged from the Indenture, except for certain Sections
thereof.
18. Governing
Law. The Indenture, the Guarantees and this Note shall be
governed by and construed in accordance with the laws of the State of New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the law of another jurisdiction would be required
thereby. Each of the Issuers, the Guarantors and the
Trustee irrevocably submits to the jurisdiction of any New York state
court sitting in the Borough of Manhattan in the City of New York or any federal
court sitting in the Borough of Manhattan in the City of New York in respect of
any suit, action or proceeding arising out of or relating to the Indenture and
the Notes, and irrevocably accept for itself and in respect of its property,
generally and unconditionally, jurisdiction of the aforesaid
courts. Each of the Issuers, the Guarantors and the Trustee
irrevocably waives, to the fullest extent that it may effectively do so under
applicable law, trial by jury and any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Trustee or any Holder of the Notes to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Issuers or any Guarantor in any other
jurisdiction.
19. CUSIP
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No
representation is made as to the correctness or accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption or
repurchase and reliance may be placed only on the other identification numbers
placed thereon.
The
Issuers will furnish to any Holder upon written request and without charge a
copy of the Indenture. Request may be made to:
Xxxxxx
Publishing Group, LLC
000 Xxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxx
X. Xxxxxxxx
ASSIGNMENT
FORM
To assign
this Note, fill in the form below:
(I) or
(we) assign and transfer this Note to
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(Insert
assignee’s soc. sec. or tax I.D. no.)
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(Print
or type assignee’s name address and zip code)
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and
irrevocably appoint
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agent
to transfer this Note on the books of the Issuers. The agent
may substitute another to act for
him.
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Date:
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Your
Signature:
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||||
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(Sign
exactly as your name appears on the face of this Note)
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Signature
Guarantee:
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(Participant
in recognized signature guarantee medallion
program)
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OPTION
OF HOLDER TO ELECT PURCHASE
If you
elect to have all or any portion of this Note purchased by the Issuers pursuant
to Section 3.9 (“Change
of Control Offer”), Section 4.10 (“Net
Proceeds Offer”) or Section 4.21 (“Net
Loss Offer”) of the Indenture, check the applicable boxes:
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Net
Loss or Net Proceeds Offer:
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Change
of Control Offer:
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in
whole
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in
whole
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in
part
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in
part
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|||||||
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Amount
to be purchased: $
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Amount
to be purchased: $
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|||||||||
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Dated:
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Signature:
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|||||||||
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(Sign
exactly as your name appears on the face of this Note)
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Signature
Guarantee:
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||||||||||
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(Participant
in recognized signature guarantee medallion program)
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||||||||||
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Social
Security Number or
Taxpayer
Identification Number:
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SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Certificated Note, or exchanges of a part of another Global
Note or Certificated Note for an interest in this Certificated Note or increases
for a payment of PIK Interest, have been made:
|
Date
of
Exchange
|
Amount
of
decrease
in
Principal
Amount
|
Amount
of increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount
of
this
Global
Note
following
such
decrease
or
increase
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Signature
of
authorized
officer
of
Trustee or
Custodian
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_____________________________
*This
schedule should be included only if the Note is issued in global
form.
GUARANTEE
For value
received, the undersigned hereby unconditionally guarantees, as principal
obligor and not only as a surety, to the Holder of this Note the cash payments
in United States dollars of principal of, premium, if any, and interest on this
Note in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note, if lawful, and
the payment or performance of all other Obligations of the Issuers under the
Indenture (as defined below) or the Note, to the Holder of this Note and the
Trustee, all in accordance with and subject to the terms and limitations of this
Note, Article XI of the Indenture and this Guarantee. This Guarantee
will become effective in accordance with Article XI of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of
this Guarantee shall not be affected by the fact that it is not affixed to any
particular Note. Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Indenture dated as of March 1, 2010
among Xxxxxx Publishing Group, LLC, a Georgia limited liability company (the
“Company”)
and Xxxxxx Publishing Finance Co., a Georgia corporation (“Xxxxxx
Finance” and, together with the Company, the “Issuers”),
as joint and several obligors, each of the Guarantors named therein and
Wilmington Trust FSB, as trustee (the “Trustee”)
and collateral agent (as amended or supplemented, the “Indenture”).
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby
agrees to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this
Guarantee.
[Signatures
on following page]
This
Guarantee is subject to release upon the terms set forth in the
Indenture.
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YANKTON
PRINTING COMPANY
BROADCASTER
PRESS, INC.
THE
SUN TIMES, LLC
XXXXX
NEWS, LLC
LOG
CABIN DEMOCRAT, LLC
ATHENS
NEWSPAPERS, LLC
SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
XXXXXXXX
COMMUNICATIONS, INC.
FLORIDA
PUBLISHING COMPANY
THE
OAK RIDGER, LLC
MPG
ALLEGAN PROPERTY, LLC
MPG
HOLLAND PROPERTY, LLC
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By:
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President, Finance
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SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
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By:
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Xxxxxx
Publishing Group, LLC
its
General Partner
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By:
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President, Finance
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