1
Exhibit 4.02
[Form of Senior Subordinated Indenture]
SENIOR SUBORDINATED INDENTURE, dated as of
, among XXXXXXXXX INTERNATIONAL PUBLISHING INC.,
a Delaware corporation (as more fully defined
below, "Publishing"), XXXXXXXXX INTERNATIONAL
INC., a Delaware corporation (as more fully
defined below, "Xxxxxxxxx International") and
FLEET NATIONAL BANK, as trustee (the "Trustee").
RECITALS OF PUBLISHING
Publishing has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its senior subordinated debentures, notes, bonds
or other evidences of indebtedness, to be issued in one or more series pursuant
to Article III hereof or a supplemental indenture (each a "Series" and
collectively the "Securities").
Xxxxxxxxx International has duly authorized the issuance of a guarantee (the
"Guarantee") of the Securities, of substantially the tenor as hereinafter set
forth, and to provide therefor, Xxxxxxxxx International has duly authorized the
execution and delivery of this Indenture in its capacity as Guarantor
hereunder.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act; and
All acts and things necessary have been done to make (i) the Securities,
when executed by Publishing and authenticated and delivered hereunder and duly
issued by Publishing, the valid obligations of Publishing and (ii) this
Indenture a valid agreement of Publishing and Xxxxxxxxx International in
accordance with the terms of this Indenture.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the Holders thereof,
2
2
it is mutually covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(e) all references to $, US$, dollars or United States dollars shall refer
to the lawful currency of the United States of America.
The following terms shall have the meanings set forth in this Section:
"Acceleration Right" means a right, which at the time is immediately
exercisable (without further notice or lapse of time), by the holders or a
trustee to cause the acceleration of the maturity of Indebtedness of Publishing
or a Restricted Subsidiary having an aggregate principal amount outstanding of
at least $5,000,000; provided that this definition shall exclude the rights of
the holders of the existing preference shares of DTH and FDTH to require that
Restricted Subsidiaries or Affiliates purchase those shares pursuant to the
terms of the governing instruments or
3
3
existing agreements relating to such preference shares existing on January 1,
1997.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) (i) existing at the time such Person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Indebtedness Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition. Acquired Indebtedness will be deemed to be
Incurred on the date of the related acquisition of assets from any Person or
the date the acquired Person becomes a Restricted Subsidiary.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any other Person
that owns, directly or indirectly, 10% or more of such Person's equity
ownership or Voting Stock or any officer or director of any such Person or
other Person or with respect to any natural Person, any person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person directly or indirectly, whether through ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means the administrative agent under the New Bank Credit Facility,
and its successors and assigns in such capacity.
"Amortization Expense" of any Person means, for any period, amounts
recognized during such period as (i) amortization of goodwill or (ii)
amortization of any other intangible assets with an original life of ten years
or more, in each case in accordance with GAAP and to the extent reflected in
the Consolidated Net Income of Publishing and the Restricted Subsidiaries;
provided, however, that in determining the aggregate cumulative Amortization
Expense of Publishing and its Restricted Subsidiaries for purposes of Section
10.09 following the date on which both of the Telegraph and Southam are
Restricted Subsidiaries, the Amortization Expense of
4
4
Restricted Subsidiaries that are not Wholly Owned Restricted Subsidiaries shall
be determined in accordance with the actual percentage of Publishing's common
equity in such Restricted Subsidiary on the date of the transaction
necessitating the determination (thus, for example, in the case of a Restricted
Subsidiary in which Publishing owns a 51% common equity interest on the date of
the Restricted Payment, 51% of such Restricted Subsidiary's Amortization
Expense would be included in the calculation of the aggregate cumulative
Amortization Expense of Publishing and the Restricted Subsidiaries).
"AP-91" means American Publishing (1991) Inc., a wholly owned, indirect
Subsidiary.
"AP-91 Senior Notes" means the $150 million in senior secured notes issued
by AP-91 which are held by 19 insurance companies.
"Argsub" means a wholly owned subsidiary of Argus.
"Argsub Preferred" means Preferred Stock of any Argsub issued to and held by
DTH or FDTH.
"Argus" means Argus Corporation Limited, a Canadian corporation, so long as
such corporation is controlled by Xxx. Xxxxxx X. Xxxxx or his heirs, executors
and legal representatives and his Affiliates.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or
sale and leaseback transaction but not the grant of a pledge or security
interest) (collectively, a "transfer"), directly or indirectly, in one or a
series of related transactions, of (i) any Capital Stock of any Restricted
Subsidiary; (ii) all or substantially all of the properties and assets of any
division or line of business of Publishing or any of its Restricted
Subsidiaries; or (iii) any other properties or assets (other than cash) of
Publishing or any Restricted Subsidiary, other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include any transfer of properties and assets (A) that is governed by the
provisions of Article VIII, (B) from any Restricted Subsidiary to Publishing in
accordance with the terms of this Indenture, (C) having a market value of less
than $1,000,000 (it being understood that if the market value of the properties
or assets being
5
5
transferred exceeds $1,000,000, the entire value and not just the portion in
excess of $1,000,000 shall be deemed to have been the subject of an Asset
Sale), (D) which are obsolete (in the case of equipment) to Publishing's and
its Restricted Subsidiaries' businesses, (E) to any Wholly Owned Restricted
Subsidiary (or, provided that both the Telegraph and Southam are Restricted
Subsidiaries, a Restricted Subsidiary), (F) from any Wholly Owned Restricted
Subsidiary to any other Wholly Owned Restricted Subsidiary (or, provided that
both The Telegraph and Southam are Restricted Subsidiaries, from a Restricted
Subsidiary to a Restricted Subsidiary), (G) consisting of any transfer of
common shares of HTH by FDTH or any Restricted Subsidiary which may require or
hold such HTH common shares to Xxxxxxxxx Inc. pursuant to the provisions of the
HTH/FDTH Share Exchange Agreement, (H) by Southam provided that (i) Southam
is a Restricted Subsidiary; (ii) Southam is a Public Entity at the time of such
sale of assets and (iii) the proceeds of such sale of assets are not paid as a
dividend or distribution of Southam's equity capital; provided, however, that
any issuance by Southam of its Capital Stock shall be subject to the
requirements of Section 10.16(b)(i), and (I) any issuance of Mirror Preferred
so long as the conditions set forth in the definition of Mirror Preferred are
satisfied.
"Average Life to Stated Maturity" means, as of the date of determination
with respect to any Indebtedness, the quotient obtained by dividing (i) the sum
of the products of (a) the number of years from the date of determination to
the date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (b) the amount of each such principal payment by
(ii) the sum of all such principal payments.
"Bankruptcy Law" means Title 11 of the United States Code, as amended, or
any similar United States Federal or state or foreign law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"Board of Directors" means the board of directors of Publishing or any duly
authorized committee of such board.
6
6
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of Publishing to have been duly adopted by such Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, or
the city in which the principal corporate trust office of the Trustee is
located (initially Hartford, CT), are authorized or obligated by law or
executive order to close.
"Business Opportunities Agreement" means the Business Opportunities
Agreement dated as of February 7, 1996, between Xxxxxxxxx Inc. and Xxxxxxxxx
International and any amendment, modification, or supplement thereto or
restatement thereof and any similar agreements entered into after the date of
the original issuance of the Securities in accordance with the terms of this
Indenture.
"Capital Lease Obligation" of any Person means any obligation of such Person
and its subsidiaries on a consolidated basis under any capital lease of real or
personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Cash Equivalents" means (i) any evidence of Indebtedness with a maturity of
180 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in
support thereof); (ii) certificates of deposit or acceptances with a maturity
of 180 days or less of any financial institution that is a member of the
Federal Reserve System having combined capital and surplus and undivided
profits of not less than $500,000,000; (iii) commercial paper with a maturity
of 180 days or less issued by a corporation that is not an Affiliate of
Publishing organized under the laws of any state of the United States or the
District of Columbia and rated A-1 (or higher) according to S&P or P-1 (or
higher) according to Moody's or at least an equivalent rating category of
another nationally recognized securities rating
7
7
agency; (iv) any money market deposit accounts issued or offered by a domestic
commercial bank having capital and surplus in excess of $500,000,000; and (v)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the government of
the United States of America or issued by any agency thereof and backed by the
full faith and credit of the United States of America, in each case maturing
within 180 days from the date of acquisition; provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985.
"Change of Control" means the occurrence of any of the following:
(a) there is a report filed on Schedule 13D, 14D-1 or 14D-1F (or any
successor schedule, form or report) pursuant to the Exchange Act, disclosing
that any person (for purposes of this definition, as the term "person" is used
in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor
provision to either of the foregoing), other than any person consisting solely
of Xxxxxx X. Xxxxx (or his heirs, executors or legal representatives) and his
Affiliates, has become the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of Voting Stock representing 50% or more of the total voting
power attached to all Voting Stock of Xxxxxxxxx Inc., Xxxxxxxxx International
or Publishing then outstanding; provided, however, that a person shall not be
deemed to be the beneficial owner of, or to own beneficially, (i) any
securities tendered pursuant to a tender or exchange offer made by or on behalf
of such person or any of such person's Affiliates until such tendered
securities are accepted for purchase or exchange thereunder, or (ii) any
securities if such beneficial ownership (A) arises solely as a result of a
revocable proxy delivered in response to a proxy or consent solicitation made
pursuant to applicable law, and (B) is not also then reportable on Schedule 13D
(or any successor schedule) under the Exchange Act;
(b) there is a report filed or required to be filed with any securities
commission or securities regulatory authority in Canada, disclosing that any
offeror (as the term "offeror" is defined in Section 89(1) of
8
8
Securities Act (Ontario) for the purpose of Section 101 of such Securities Act
or any successor provision of the foregoing) other than any person consisting
solely of Xxxxxx X. Xxxxx (or his heirs, executors or legal representatives)
and his Affiliates, has acquired beneficial ownership (within the meaning of
the Securities Act (Ontario)) of, or the power to exercise control or direction
over, or securities convertible into, any voting or equity shares of Xxxxxxxxx
Inc. that together with such offeror's securities (as the term "offeror's
securities" is defined in Section 89(1) of the Securities Act (Ontario) or any
successor provision thereto in relation to the voting or equity shares of
Xxxxxxxxx Inc., would constitute Voting Stock of Xxxxxxxxx Inc. representing
50% or more of the total voting power attached to all Voting Stock of Xxxxxxxxx
Inc. then outstanding;
(c) Xxxxxxxxx International shall cease to own, directly or indirectly, 100%
of the Voting Stock of Publishing;
(d) there is consummated a consolidation (involving a business combination)
or merger of Publishing or Xxxxxxxxx International, as the case may be, (i) in
which Publishing or Xxxxxxxxx International, as the case may be, is not the
continuing or surviving corporation or (ii) pursuant to which any Voting Stock
of Publishing or Xxxxxxxxx International, as the case may be, would be
reclassified, changed or converted into or exchanged for cash, securities or
other property, other than (in each case) a consolidation or merger of
Publishing or Xxxxxxxxx International, as the case may be, in which the holders
of the Voting Stock of Publishing or Xxxxxxxxx International, as the case may
be, immediately prior to the consolidation or merger have, directly or
indirectly, 50% or more of the Voting Stock of the continuing or surviving
corporation immediately after such transaction; or
(e) Xxxxxx X. Xxxxx (or his heirs, executors and legal representatives) and
his Affiliates cease to beneficially own and control the voting of, directly or
indirectly, Voting Stock of Publishing or Xxxxxxxxx International representing
a greater percentage of the total voting power attached to the Voting Stock of
Publishing or Xxxxxxxxx International than the percentage beneficially owned
and controlled, directly or indirectly, by any other single shareholder of
Publishing or Xxxxxxxxx International
9
9
together with its Affiliates (a "Designated Transaction") and there shall occur
a Rating Decline.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means any property, assets, proceeds or other items that may be
pledged as security for the Securities, whether pursuant to Section 10.13 or
otherwise.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock Offering" means the issuance by Xxxxxxxxx International of up
to 16,100,000 shares of its Class A Common Stock, par value $.01 per share,
concurrently with the issuance of the Securities.
"Consolidated Assets" means, with respect to Publishing, the total assets
shown on the balance sheet of Publishing and its Restricted Subsidiaries, as
determined on a consolidated basis in accordance with GAAP, as of Publishing's
latest full fiscal quarter.
"Consolidated Cash Flow Ratio" means, as at any date of determination, the
ratio of (i) the aggregate amount of Indebtedness of Publishing and the
Restricted Subsidiaries on a Consolidated basis outstanding as at such date to
(ii) the Operating Cash Flow of Publishing and the Restricted Subsidiaries
(determined on a Consolidated basis) for the most recently completed period of
four consecutive fiscal quarters of Publishing; provided (a) that once both of
the Telegraph and Southam are Restricted Subsidiaries, for the purpose of
determining the Consolidated Cash Flow Ratio, the Indebtedness and Operating
Cash Flow of Restricted Subsidiaries that are not Wholly Owned Restricted
Subsidiaries shall be determined in accordance with the actual percentage of
Publishing's common equity interest in such Restricted Subsidiary on the date
of determination of the Consolidated Cash Flow Ratio (thus, for example, in the
case of a Restricted Subsidiary in which Publishing owns a 51% common equity
interest, 51% each of such Restricted Subsidiary's Indebtedness and Operating
Cash Flow would be
10
10
included in the calculation of Publishing's aggregate Indebtedness and
Operating Cash Flow, respectively); and provided further that (i) so long as
Southam is a Restricted Subsidiary and (ii) until such time as Southam is not a
Public Entity, the portion of Operating Cash Flow represented by Southam
Operating Cash Flow shall not exceed thirty-three and one third percent (33-
1/3%) and, to the extent Southam Cash Flow represents greater than thirty-three
and one third percent (33-1/3%) of Operating Cash Flow, such excess shall be
deducted from Operating Cash Flow and (b) that, so long as any Southam shares
owned by Publishing or a Restricted Subsidiary are pledged, directly or
indirectly, to secure Indebtedness other than Indebtedness by Publishing or a
Restricted Subsidiary, the equity interest in Southam represented by such
shares shall be excluded for purposes of calculating the percentage of
Southam's Indebtedness and Operating Cash Flow to be included in determining
Publishing's aggregate Indebtedness and Operating Cash Flow on a Consolidated
basis.
"Consolidated Net Income (Loss)" of Publishing and the Restricted
Subsidiaries means, for any period, the Consolidated net income (or loss (and
treating a loss as a negative number)) of Publishing and the Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted by
(a) excluding, without duplication, to the extent included in calculating such
Consolidated Net Income (or Loss), (i) all extraordinary gains and losses, (ii)
the portion of Consolidated net income (or loss) of Publishing and its
Restricted Subsidiaries allocable to Investments in unconsolidated Persons
(other than Unrestricted Subsidiaries) to the extent that cash dividends or
distributions have not actually been received by such Person or one of its
Restricted Subsidiaries, (iii) the portion of Consolidated net income (or loss)
of Publishing and its Restricted Subsidiaries allocable to Publishing's
Unrestricted Subsidiaries (or to payments received therefrom), (iv) net income
(or loss) of a Person combined with Publishing or any of its subsidiaries on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (v) any gain or loss, net of taxes, realized upon the termination
of any employee pension benefit plan, (vi) aggregate net gains and losses (less
all fees and expenses relating thereto) in respect of dispositions of assets
(including without limitation sales of shares of Unrestricted Subsidiaries or
unconsolidated Persons and noncash writeoffs of assets (provided that there are
no continuing cash expenses related to such writeoffs))
11
11
other than in the ordinary course of business, (vii) any income, gain or loss
resulting from the issuance, sale or redemption of Mirror Preferred or Argsub
Preferred, (viii) the net income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulations applicable
to that Restricted Subsidiary or its stockholders; provided, however, that the
foregoing shall not apply to the net income of AP-91 relating to the business
of AP-91, as conducted as of the date of this Indenture on account of
restrictions on AP-91, or in agreements as in effect on the date of this
Indenture, restrictions permitted under clauses (iii) and (iv) of Section
10.17 (to the extent such clauses are applicable at the time of determination),
(ix) any restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of income accrued at any time
following the date of this Indenture, (x) any net gain from the collection of
proceeds of life insurance policies, (xi) any gain arising from the acquisition
of any securities, or the extinguishment, under GAAP, of any Indebtedness of
Publishing or one of its Restricted Subsidiaries, (xii) aggregate net gains or
losses relating to foreign currency transactions or translations, (xiii)
redundancy costs relating to the permanent elimination of jobs, provided that
the amount of such expenses are certified by Publishing's independent
accountants, and (b) subtracting, without duplication, the aggregate amount of
dividends on Preferred Stock of Restricted Subsidiaries to the extent that such
Preferred Stock is included as Indebtedness in the calculation of Publishing's
Consolidated Cash Flow Ratio. In calculating the Operating Cash Flow of
Publishing and its Restricted Subsidiaries, the Consolidated Net Income of
Restricted Subsidiaries that are not Wholly Owned Restricted Subsidiaries will
be included only to the extent of Publishing's common equity interest in such
Restricted Subsidiaries.
"Consolidated Net Worth" means the common and preferred stockholders' equity
of Publishing and its Restricted Subsidiaries (exclusive of any redeemable
capital stock), as determined on a Consolidated basis and in accordance with
GAAP.
12
12
"Consolidated Tangible Assets" means the total assets appearing on a
Consolidated balance sheet of Publishing and its Restricted Subsidiaries less,
without duplication, each of the following: (i) all applicable depreciation,
amortization and other valuation reserves, (ii) all other intangible assets and
deferred charges, (iii) deferred income tax assets (to the extent recorded as
an asset) and (iv) all investments in unconsolidated subsidiaries (including
all Unrestricted Subsidiaries).
"Consolidation" means, with respect to any Person, the consolidation of the
accounts of such Person and each of its subsidiaries if and to the extent the
accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP; provided,
however, that the accounts of any Unrestricted Subsidiary shall not be
consolidated with Publishing but instead the interest of Publishing or any
Restricted Subsidiary therein will be accounted for as an investment. The term
"Consolidated" shall have a correlative meaning.
"Corporate Trust Office" means the office of the Trustee or an affiliate or
agent thereof at which at any particular time the corporate trust business for
the purposes of this Indenture shall be principally administered, which office
at the date of execution of this Indenture is located at 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000.
"CST Real Estate" means the real estate, including land, building and
fixtures, located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, where
Publishing currently maintains its headquarters, and all improvements thereon.
"CST Real Estate Transaction" means the sale or other disposition (other
than to an Affiliate) of all or any portion of the interest of Publishing or a
Restricted Subsidiary in the CST Real Estate.
"Currency Agreements" means one or more of the following agreements which
shall be entered into with one or more financial institutions: foreign
exchange contracts, currency swap agreements or other similar agreements or
arrangements designed to protect against fluctuations in currency values.
13
13
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness under the
New Bank Credit Facility and (ii) any other Senior Indebtedness which, at the
time of determination, has an aggregate principal amount outstanding of at
least $50,000,000 and is specifically designated by Publishing in the
instrument evidencing such Senior Indebtedness or the agreement under which
such Senior Indebtedness arises as "Designated Senior Indebtedness."
"DTH" means DT Holdings Limited, a corporation under the laws of England.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extraordinary Cash Dividend" means in respect of the Southam Interests:
(i) a cash dividend in respect of a particular calendar year representing
the excess, if any, of (A) the aggregate of all cash dividends declared and
paid on such securities during the calendar year over (B) the greatest of (x)
200% of the aggregate of all cash dividends declared and paid on such
securities during the immediately preceding calendar year, (y) 300% of the
average of the aggregate of all cash dividends declared and paid on such
securities during the immediately preceding three calendar years; and (z)
100% of the aggregate consolidated net income of the issuer of such
securities, before extraordinary items, for its immediately preceding fiscal
year; and
(ii) any cash dividend declared by Southam on its common shares which the
directors of Southam by resolution determine to be extraordinary, taking into
account the amount of the dividend, the effect of the dividend on the market
value of such securities after payment thereof, the form of payment, the
financial
14
14
position of Southam, economic conditions, business practices and such other
factors as the directors of Southam consider to be relevant.
"FDTH" means First DT Holdings Limited, a corporation under the laws of
England.
"FDTH Credit Facility" means the credit agreement dated as of May 30, 1996,
among FDTH, the financial institutions party thereto and The Toronto-Dominion
Bank, as issuing bank and Agent, as such agreement may be amended, renewed,
extended, substituted, refinanced, restructured, replaced, supplemented or
otherwise modified from time to time (including, without limitation, any
successive renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications of the foregoing that
increase the aggregate amount of borrowings outstanding or the aggregate
commitments of the lenders thereunder).
"Foreign Subsidiary Indebtedness" means Indebtedness Incurred by a non-U.S.
domiciled Subsidiary that has no material U.S. operations.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied,
which are in effect on the date of this Indenture.
"Global Security" means a Security evidencing all or part of the Securities
of any Series and issued to a Depositary in accordance with Section 3.03 hereof
and bearing the legend prescribed in Section 2.05 hereof.
"Guarantee" means the guarantee by the Company and, if the context requires,
by any Restricted Subsidiary Guarantor of the Indenture Obligations.
"Guaranteed Debt" of any Person means, without duplication, all Indebtedness
of any other Person referred to in the definition of Indebtedness guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness (or to indemnify another Person for the costs
thereof), (ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily
15
15
for the purpose of enabling the debtor to make payment of such Indebtedness or
to assure the holder of such Indebtedness against loss, (iii) to supply funds
to, or in any other manner invest in, the debtor (including any agreement to
pay for property or services without requiring that such property be received
or such services be rendered), (iv) to maintain working capital or equity
capital of the debtor, or otherwise to maintain the net worth, solvency or
other financial condition of the debtor or (v) otherwise to assure a creditor
against loss, provided that the term "guarantee" shall not include endorsements
for collection or deposit, in either case in the ordinary course of business.
"Guarantor" means any guarantor of the Securities in accordance with the
terms of this Indenture, including Xxxxxxxxx International.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Xxxxxxxxx Eastern" means Xxxxxxxxx Eastern Publishing Inc., a Canadian
corporation, and its successors and assigns.
"Xxxxxxxxx Inc. Transaction" means the transaction, in all material respects
as announced publicly on January 7, 1997, by which Xxxxxxxxx Inc. is to
transfer to Xxxxxxxxx Eastern certain of its owned Canadian publishing
interests for an aggregate consideration not to exceed $382 million, subject to
working capital adjustments and currency exchange adjustments.
"Xxxxxxxxx International" means Xxxxxxxxx International Inc., a corporation
incorporated under the laws of Delaware and a Guarantor of the Indenture
Obligations, until a successor Person shall have become such pursuant to
Article VIII of this Indenture and thereafter "Xxxxxxxxx International" shall
mean such successor Person.
"Xxxxxxxxx International/Xxxxxxxxx Eastern Interests" means Preferred Stock
of any Person (or other Capital Stock convertible or exchangeable into
Preferred Stock of such Person) which holds the voting interests of Xxxxxxxxx
Eastern which are owned by Xxxxxxxxx International and its Subsidiaries as of
the date that Xxxxxxxxx Eastern is designated as a Restricted Subsidiary.
16
16
"Xxxxxxxxx International Guarantee" means the unsecured, senior subordinated
guarantee of the Securities provided by the Company.
"HTH" means Xxxxxxxxx-Telegraph Holdings Inc., a corporation continued under
the laws of Alberta, and its successors and assigns.
"HTH/FDTH Share Exchange Agreement" means the share exchange agreement dated
as of July 19, 1995, between Xxxxxxxxx Inc. and FDTH, as amended, supplemented
or otherwise modified from to time.
"Incur" means create, issue, assume, guarantee or otherwise in any manner
become directly or indirectly liable for or with respect to or otherwise incur.
"Indebtedness" means, with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (or other obligations to former owners of
acquired businesses), excluding any trade payables and other accrued current
liabilities arising in the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (ii) all obligations of such
Person evidenced by bonds, notes, debentures or other similar instruments,
(iii) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person
(even if the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such property),
but excluding trade payables arising in the ordinary course of business, (iv)
all obligations under Interest Rate Agreements and Currency Agreements of such
Person, (v) all Capital Lease Obligations of such Person, (vi) all Indebtedness
referred to in clauses (i) through (v) above of other Persons and all dividends
of other Persons, the payment of which is secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien, upon or with respect to property (including,
17
17
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all Redeemable
Capital Stock and (without duplication) all Preferred Stock of Subsidiaries
other than (a) Mirror Preferred, provided that such Mirror Preferred continues
to qualify as such under the definition thereof, (b) Xxxxxxxxx
International/Xxxxxxxxx Eastern Interests, provided that Xxxxxxxxx International
grants a security interest, subordinated to the same extent as the Securities,
in such Xxxxxxxxx International/Xxxxxxxxx Eastern Interests as security for its
guarantee of securities, and (c) Preferred Stock held by Restricted Subsidiaries
or Publishing, in each case valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends and
(ix) any amendment, supplement, modification, deferral, renewal, extension,
refunding or refinancing of any Indebtedness of the types referred to in clauses
(i) through (viii) above; provided, however, that this definition shall not
apply to Indebtedness represented by Southam-Linked Debentures, which are
secured, directly or indirectly, by shares of Southam held directly or
indirectly by Publishing. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock or Preferred Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock or Preferred Stock as if such Redeemable Capital Stock
or Preferred 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 Redeemable Capital Stock or
Preferred Stock, such fair market value to be determined in good faith by the
Board of Directors of such Person.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules thereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
Series of Securities established as contemplated by Section 3.01.
"Indenture Obligations" means the obligations of Publishing under this
Indenture or under the Securities to pay principal of, premium, if any, and
interest when due and payable, and all other amounts due or to become due under
or
18
18
in connection with this Indenture and the Securities, and the performance of
all other obligations to the Trustee, the Paying Agent and the holders under
this Indenture and the Securities, according to the terms thereof.
"Independent Committee" means a committee of the board of directors of
Publishing whose membership meets the requirements of the New York Stock
Exchange applicable to audit committees as in effect on the date of original
issuance of the Securities or a committee of the board of directors of
Publishing whose membership satisfies any more restrictive requirements of
independence of any securities exchange or market on which Publishing's or
Xxxxxxxxx International's equity securities are traded or listed.
"Independent Director" means a member of the board of directors of a Person
that is not an officer, employee or former officer or employee of such Person
or one of its Affiliates and, with respect to any transaction or series of
related transactions, a member of the board of directors who does not have any
material direct or indirect financial interest in or with respect to such
transaction or series of related transactions (including for such purpose the
interest of any other Person with respect to whom such director is also a
director, officer or employee).
"Interest Payment Date" means the Stated Maturity of a regular installment
of interest on the Securities or the Special Payment Date with respect to
Defaulted Interest.
"Interest Rate Agreements" means one or more of the following agreements
which shall be entered into from time to time with one or more financial
institutions: interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements)
and/or other types of interest rate hedging agreements.
"Investment" means, with respect to any Person, directly or indirectly, any
advance, loan (including guarantees), or other extension of credit or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase, acquisition or ownership by such Person of any Capital Stock,
bonds, notes, debentures or other securities issued or owned by, any other
Person and all other items that are
19
19
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
security interest, hypothecation or other encumbrance upon or with respect to
any property of any kind, real or personal, movable or immovable, now owned or
hereafter acquired.
"Marketable Security" means any common stock, debt security or other
security of a Person which is (or will, upon distribution thereof, be) listed
on the NYSE, the American Stock Exchange or any national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934, as amended,
or approved for quotation in the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system of automated dissemination of quotations of securities prices in
the United States or for which there is a recognized market maker or trading
market.
"Material Restricted Subsidiary" means each Restricted Subsidiary of
Publishing which (i) for the most recent fiscal year of Publishing accounted
for more than 5% of the Consolidated revenues of Publishing and its Restricted
Subsidiaries or (ii) at the end of such fiscal year was the owner (beneficial
or otherwise) of more than 5% of the Consolidated Assets of Publishing and its
Restricted Subsidiaries, all as shown on Publishing's Consolidated financial
statements for such fiscal year.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein provided or
as provided in this Indenture, whether at Stated Maturity, the Purchase Date or
the Redemption Date and whether by declaration of acceleration, Offer in
respect of Excess Proceeds, Change of Control, call for redemption or
otherwise.
"Media Business" means the business of the broadcast of radio or television
broadcasting, cable and satellite programs (including national, regional or
local radio, television, cable and satellite programs).
"Mirror Preferred" means Preferred Stock of DTH or FDTH currently held by or
hereafter issued to an Argsub (i) having items (including, without limitation,
terms with respect to liquidation, redemption and dividends) identical
20
20
to those contained in Argsub Preferred issued or transferred simultaneously with
such Argsub's acquisition of such DTH or FDTH Preferred Stock in equivalent
amounts to DTH or FDTH, as the case may be, and (ii) in respect of which no cash
payments are or have been made by the issuer thereof, except for cash payments
in respect of certain Mirror Preferred directly from FDTH to DTH at the
direction of Argsub; provided that, at such time as (x) the foregoing clauses
(i) and (ii) are no longer satisfied, (y) the issuer of any Argsub Preferred
Incurs any Indebtedness or other liability other than tax liabilities or
pursuant to such Argsub Preferred or acquires any other assets other than the
Mirror Preferred, or (z) the Holder of any Mirror Preferred transfers such stock
other than to a Wholly-Owned Restricted Subsidiary, (1) an Event of Default will
occur under the Indenture, and (2) such Preferred Stock of FDTH held by Argsub
will be deemed to be Redeemable Capital Stock that Incurred on such date; and
provided further, that in the event that the Mirror Preferred have not been
redeemed, retracted, transferred to DTH or otherwise cancelled without the
payment of cash (except for cash payments in respect of certain Mirror Preferred
directly to DTH) on or before July 1, 1997, then such Preferred Stock shall be
treated as Indebtedness for the purposes of Section 10.08.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by any Person,
the proceeds thereof in the form of cash or cash equivalents including payments
of principal and interest in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
cash equivalents (except to the extent that such obligations are financed or
sold with recourse to Publishing or any Restricted Subsidiary) net of (i)
brokerage commissions and other reasonable fees and expenses (including fees
and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire indebtedness where payment of such indebtedness is
secured by the assets or properties the subject of such Asset Sale, (iv)
amounts required to be paid to any Person (other than Publishing or any
Restricted Subsidiary) owning a beneficial interest in the assets subject to
the Asset Sale and (v) appropriate amounts to be provided by 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
Publishing or any Restricted
21
21
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, all as determined and reflected in
an Officers' Certificate delivered to the Trustee and (b) with respect to any
issuance or sale of Capital Stock or options, warrants or rights to purchase
Capital Stock, or debt securities or Capital Stock that have been converted
into or exchanged for Capital Stock, as referred to in Section 10.09, the
proceeds of such issuance or sale in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations when received in
the form of, or stock or other assets when disposed of for, cash or cash
equivalents (except to the extent that such obligations are financed or sold
with recourse to Publishing or any Restricted Subsidiary), net of attorneys'
fees, accountants' fees and brokerage, consultation, underwriting and other
fees and expenses actually incurred in connection with such issuance or sale
and net of taxes paid or payable as a result thereof.
"New Bank Credit Facility" means the credit agreement dated as of May 30,
1996, among Publishing, the financial institutions party thereto and The
Toronto-Dominion Bank, as issuing bank and the Agent, as such agreement may be
amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified from time to time (including, without
limitation, any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other modifications of the
foregoing that increase the aggregate amount of borrowings outstanding or the
aggregate commitments of the lenders thereunder).
"Newspaper Business" means the business of publishing and distributing
(including distributing by electronic means) newspapers, magazines and other
paid or free publications having national, regional, local or targeted markets,
including publications having limited or no news or editorial content such as
shoppers or other "total market coverage" publications and similar
publications.
"Nonpayment Default" means any event (other than a Payment Default) the
occurrence of which entitles one or
22
22
more Persons to accelerate at such time the maturity of any Designated Senior
Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Vice Chairman, President or a Vice President (regardless of Vice
Presidential designation), and by the Treasurer, Secretary or an Assistant
Secretary, of Publishing, in form and substance reasonably satisfactory to, and
delivered to, the Trustee.
"Operating Cash Flow" means, for any period, an amount equal to the
Consolidated Net Income of Publishing and the Restricted Subsidiaries for such
period, plus, to the extent deducted in calculating such Consolidated Net
Income, (a) interest expense and other financing costs and expenses, (b)
dividends paid on any Preferred Stock of Restricted Subsidiaries to the extent
such Preferred Stock is included as Indebtedness in the calculation of
Publishing's Consolidated Cash Flow Ratio, (c) depreciation and amortization
and (d) all taxes, whether or not deferred, applicable to such period.
For purposes of calculating Operating Cash Flow for the four fiscal quarters
most recently completed prior to any date on which an action is taken that
requires a calculation of the Consolidated Cash Flow Ratio, (a) any Person that
is a Restricted Subsidiary on such date (or would become a Restricted
Subsidiary in connection with the transaction that requires the determination
of such ratio) shall be deemed to have been a Restricted Subsidiary at all
times during such period, (b) any Person that is not a Restricted Subsidiary on
such date (or would cease to be a Restricted Subsidiary in connection with the
transaction that requires the determination of such ratio) shall be deemed not
to have been a Restricted Subsidiary at any time during such period, (c) if
Publishing or any Restricted Subsidiary shall have in any manner acquired or
disposed of any operating business (including without limitation acquisitions
accounted for on a "pooling of interests" or "as if pooling of interests"
basis) during or subsequent to such period, such calculation shall be made on a
pro forma basis on the assumption that such acquisition or disposition has been
completed on the first day of such period and (d) in the case of a Restricted
Subsidiary that is not a
23
23
Wholly Owned Restricted Subsidiary, the determination of the percentage of the
Operating Cash Flow of such Restricted Subsidiary that is to be included in the
calculation of Publishing's Cash Flow Ratio shall be made on a pro forma basis
on the assumption that the percentage of Publishing's common equity interest on
the date of determination (it being understood, in the case of foregoing clause
(c), that if such pro forma calculations shall have been made in accordance
with Regulation S-X under the Exchange Act, such method of calculation (but not
necessarily the adjustments) shall be presumed to be acceptable) (it being
further understood that the foregoing clause (d) shall not be operative until
such time as both The Telegraph and Southam shall both be Restricted
Subsidiaries).
"Opinion of Counsel" means a written opinion of counsel, in form and
substance reasonably satisfactory to the Trustee, who may be counsel for
Publishing or the Trustee, and who shall be reasonably acceptable to the
Trustee, including but not limited to an Opinion of Independent Counsel.
"Opinion of Independent Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, by someone who is not an
employee or former employee of Publishing and who shall be reasonably
acceptable to the Trustee.
"Original Issue Discount Security" means (i) any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof, and (ii) any other
Security which is issued with "original issue discount" within the meaning of
Section 1273(a) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption money in
the necessary amount has been theretofore irrevocably deposited with the
Trustee
24
24
or any Paying Agent (other than Publishing) in trust or set aside and
segregated in trust by Publishing (if Publishing shall act as its own Paying
Agent) for the Holders of such Securities; provided, that if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor reasonably satisfactory to the Trustee
has been made;
(c) Securities, except to the extent provided in Sections 4.02 and 4.03,
with respect to which Publishing has effected defeasance or covenant
defeasance as provided in Article IV; and
(d) Securities in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee and Publishing proof reasonably satisfactory to each of them that
such Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of Publishing; provided, however, that in
determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by
Publishing or any other obligor upon the Securities or any Affiliate of
Publishing or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee actually knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not
Publishing or any other obligor upon the Securities or any Affiliate of
Publishing or such other obligor.
"Pari Passu Guarantor Indebtedness" means any Indebtedness of any Guarantor
that is pari passu in right of payment with such Guarantor's Guarantee.
25
25
"Pari Passu Indebtedness" means any Indebtedness of Publishing that is pari
passu in right of payment with the Securities.
"Paying Agent" means any Person authorized by Publishing to pay the
principal, premium, if any, or interest on any Securities on behalf of
Publishing. The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons to act as Paying Agent in addition
to or in place of the Trustee with respect to any Series of Securities issued
under this Indenture.
"Payment Default" means any default in the payment of principal, premium, if
any, interest, commitment fees, letter of credit fees, reimbursement
obligations in respect of amounts owing under letters of credit or payments in
respect of interest under Interest Rate Agreements, in each case, on any
Designated Senior Indebtedness.
"Permitted Guarantor Junior Securities" means, so long as the effect of any
exclusion employing this definition is not to cause the Securities to be
treated in any case or proceeding or similar event described in clauses (a),
(b) or (c) of the first paragraph of Section 14.17 as part of the same class of
claims as the Senior Guarantor Indebtedness or any class of claims pari passu
with, or senior to, the Senior Guarantor Indebtedness, for any payment or
distribution, debt or equity securities of Xxxxxxxxx International or any
successor corporation provided for by a plan of reorganization or readjustment
that are subordinated at least to the same extent that the Guarantee of
Xxxxxxxxx International is subordinated to the payment of all Senior Guarantor
Indebtedness then outstanding; provided that (1) if a new corporation results
from such reorganization or readjustment, such corporation assumes any Senior
Guarantor Indebtedness not paid in full in cash or Cash Equivalents in
connection with such reorganization or readjustment and (2) the rights of the
holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment.
"Permitted Indebtedness" means the following:
(i) Indebtedness of Publishing or Foreign Subsidiary Indebtedness under the
New Bank Credit
26
26
Facility in an aggregate principal amount at any one time outstanding not to
exceed $150 million; and once both of The Telegraph and Southam are
Restricted Subsidiaries, $250 million and, once the Xxxxxxxxx Inc.
Transaction closes, $475 million; provided, however, that Indebtedness under
the New Bank Credit Facility may not be Incurred under this paragraph for
purposes of purchasing or otherwise acquiring the Capital Stock or a
substantial portion of the assets of another Person (including the minority
interest in Southam but excluding acquisitions of inventory, equipment and
similar assets in the ordinary course of business) unless, immediately after
giving effect to such transaction on a pro forma basis, Publishing could
Incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
under Section 10.08;
(ii) once Southam is a Restricted Subsidiary and until such time as Southam
is not a Public Entity, Indebtedness of Southam; provided that the Southam
Cash Flow Ratio for the four full fiscal quarters immediately preceding the
Incurrence of such Indebtedness taken as one period is not greater than
4.0:1.0 (for purposes of determining the Southam Cash Flow Ratio for any
period, pro forma effect shall be given to (i) the Incurrence of such
Indebtedness and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such Indebtedness
was Incurred, and the application of such proceeds occurred, at the beginning
of such four-quarter period; (ii) the Incurrence, repayment or retirement of
any other Indebtedness by Southam or any of its Restricted Subsidiaries since
the first day of such four-quarter period as if such Indebtedness was
Incurred, repaid or retired at the beginning of such four-quarter period;
(iii) in the case of Acquired Indebtedness, the related acquisition (as if
such acquisition had been consummated on the first day of such four-quarter
period); and (iv) any acquisition or disposition by Southam or any of its
Restricted Subsidiaries of any company or any business or any assets out of
the ordinary course of business, whether by merger, stock purchase or sale or
asset purchase or sale or any related repayment of Indebtedness, in each case
since the first day of such four-quarter period, as if such acquisition or
disposition had been consummated on the first day of such four-quarter
period); provided, however, that
27
27
Southam may not Incur Indebtedness under this paragraph for purposes of
purchasing or otherwise acquiring the Capital Stock or a substantial portion
of the assets of another Person (including the minority interest in Southam
but excluding acquisitions of inventory, equipment and similar assets in the
ordinary course of business) unless, immediately after giving effect to such
transaction on a pro forma basis, Publishing could Incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 10.08;
(iii) guarantees by, and Liens on the property of, any Restricted Subsidiary
guaranteeing or securing Indebtedness of Publishing or Foreign Subsidiary
Indebtedness under the New Bank Credit Facility and, provided that both of
The Telegraph and Southam are Restricted Subsidiaries, guarantees of, and
Liens securing, the FDTH Credit Facility, which guarantees or Liens are in
existence on the date of this Indenture or on the date which they become
Restricted Subsidiaries or guarantees that are otherwise permitted under
Section 10.13;
(iv) Indebtedness of Publishing pursuant to the Securities and Indebtedness
of any Restricted Subsidiary constituting a Guarantee of the Securities;
(v) Indebtedness of Publishing or any Restricted Subsidiary outstanding on
the date of this Indenture and listed on Schedule I hereto;
(vi) Indebtedness (a) of Publishing owing to a Wholly Owned Restricted
Subsidiary or, provided that both of The Telegraph and Southam are Restricted
Subsidiaries, a Restricted Subsidiary, or (b) of a Wholly Owned Restricted
Subsidiary owing to Publishing or another Wholly Owned Restricted Subsidiary
or, provided that both of The Telegraph and Southam are Restricted
Subsidiaries, a Restricted Subsidiary owing to another Restricted Subsidiary
or Publishing; provided that any such Indebtedness is made pursuant to an
intercompany note setting forth the principal amount, interest rate and
payment dates, the maturity or similar terms, and, in the case of
Indebtedness of Publishing owing to a Wholly Owned Restricted Subsidiary or a
Restricted Subsidiary, as the case may be, is subordinated in right of
payment from and after such time as the Securities shall become due and
28
28
payable (whether at Stated Maturity or otherwise) to the payment and
performance of Publishing's obligations under the Securities; provided
further, that (x) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than (x) to Publishing or a Wholly Owned
Restricted Subsidiary or, provided that both of The Telegraph and Southam are
Restricted Subsidiaries, a Restricted Subsidiary or (y) a pledge of such
Indebtedness to secure Indebtedness existing at such time under, and pursuant
to the terms of, the New Bank Credit Facility or the AP-91 Senior Notes and
provided that both of The Telegraph and Southam are Restricted Subsidiaries,
the FDTH Credit Facility and the Southam credit facilities existing on
January 1, 1997, as amended), will be deemed to be an Incurrence of such
Indebtedness by the obligor not permitted by this clause (vi) and (y) any
transaction pursuant to which any Wholly Owned Restricted Subsidiary or,
provided that both of The Telegraph and Southam are Restricted Subsidiaries,
a Restricted Subsidiary, that has Indebtedness owing to Publishing or any
other Wholly Owned Restricted Subsidiary (or, provided that both of The
Telegraph and Southam are Restricted Subsidiaries, any other Restricted
Subsidiary), ceases to be a Wholly Owned Restricted Subsidiary or, provided
that both of The Telegraph and Southam are Restricted Subsidiaries, a
Restricted Subsidiary, will be deemed to be the Incurrence of Indebtedness by
Publishing or such other Restricted Subsidiary that is not permitted by this
clause (vi);
(vii) obligations of Publishing or any Restricted Subsidiary pursuant to
Interest Rate Agreements or Currency Agreements designed to protect
Publishing or any Restricted Subsidiary against fluctuations in interest
rates or currency exchange rates in respect of Indebtedness of Publishing or
any of its Restricted Subsidiaries or changes in dividend rates in respect of
preference shares of DTH, the notional amount of which (in the case of
Interest Rate Agreements) and the notional or exchange amount of which (in
the case of Currency Agreements) do not exceed the aggregate principal amount
of such Indebtedness or of such preference shares of DTH, as the case may be;
(viii) guarantees by Restricted Subsidiaries of Senior Indebtedness of
Publishing otherwise permitted
29
29
to be Incurred in accordance with the provisions of Section 10.08;
(ix) Indebtedness of Publishing or a Restricted Subsidiary Incurred to
finance a new printing plant for the Chicago Sun-Times and the liabilities
directly associated therewith (collectively, the "CST Printing Plant") in an
aggregate amount not in excess of the lesser of (x) $75,000,000 and (y) the
aggregate amount needed to finance the CST Printing Plant and associated
financing costs;
(x) letter of credit reimbursement obligations Incurred by Publishing or a
Restricted Subsidiary in the ordinary course of business to support workers
compensation insurance obligations to the extent that such obligations are
recorded on the balance sheet of the issuer;
(xi) any renewals, extensions, substitutions, refundings, refinancings or
replacements (collectively, a "refinancing") of any Indebtedness described in
paragraphs (i), (ii), (iii), (iv), (viii) and (xii) of this definition of
"Permitted Indebtedness" by Publishing or by the obligor of such Permitted
Indebtedness, including any successive refinancings, so long as such
refinancing does not increase the aggregate principal amount of Indebtedness
represented thereby and, in the case of Pari Passu Indebtedness or
Subordinated Indebtedness, such refinancing does not reduce the Average Life
to Stated Maturity or the Stated Maturity of such Indebtedness;
(xii) provided that both of The Telegraph and Southam are Restricted
Subsidiaries, Indebtedness of Publishing or any Restricted Subsidiary in an
aggregate amount at any time outstanding not to exceed $25 million in respect
of purchase money obligations, provided such Indebtedness (a) is Incurred
within 180 days of the purchase of the relevant assets, (b) does not exceed
the actual purchase price of such assets and (c) any related Liens do not
extend to any assets other than those being purchased; and
(xiii) provided that both of The Telegraph and Southam are Restricted
Subsidiaries, Indebtedness of Publishing or any Restricted Subsidiary in an
aggregate
30
30
principal amount at any time outstanding not to exceed $10 million.
"Permitted Investment" means any of the following provided that, in the case
of clauses (vii), (viii), (ix), (x), (xi) and (xii), (a) no Default or Event of
Default shall have occurred and be continuing, (b) no holders of any other
Indebtedness of Publishing or any Restricted Subsidiary shall have an
Acceleration Right and (c) immediately before and immediately after giving
effect to such Investment, on a pro forma basis, Publishing could Incur $1.00
of additional Indebtedness (other than Permitted Indebtedness) under the
provisions described in Section 10.08 of this Indenture:
(i) Investments in any Wholly Owned Restricted Subsidiary (or, provided that
both of The Telegraph and Southam are Restricted Subsidiaries, a Restricted
Subsidiary) or Publishing or Investments in a Person, if as a result of such
Investment (A) such Person becomes a Wholly Owned Restricted Subsidiary (or,
provided both of The Telegraph and Southam are Restricted Subsidiaries, a
Restricted Subsidiary), or (B) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, Publishing or any Wholly Owned Restricted
Subsidiary (or, provided that both of The Telegraph and Southam are
Restricted Subsidiaries, a Restricted Subsidiary);
(ii) Investments in the Securities;
(iii) Indebtedness owing to a Wholly Owned Restricted Subsidiary or,
provided that both of The Telegraph and Southam are Restricted Subsidiaries,
a Restricted Subsidiary, in each case as described under clause (vi) of the
definition of "Permitted Indebtedness";
(iv) Temporary Cash Investments;
(v) Investments acquired by Publishing or any Subsidiary in connection with
an Asset Sale permitted under Section 10.15 to the extent such Investments
are non-cash consideration as permitted under such covenant;
31
31
(vi) Investments in existence on the date of this Indenture;
(vii) Investments in or in Persons owning Newspaper Business or Media
Business assets (including Investments in Unrestricted Subsidiaries but
excluding Investments in Affiliates that control Publishing) in an aggregate
amount following the date of this Indenture not in excess of 25% of the
aggregate cumulative cash dividends or distributions received by Publishing
and its Restricted Subsidiaries from any of Publishing's Unrestricted
Subsidiaries received during the period (treated as a single accounting
period) after the date of this Indenture and prior to the date of the
Permitted Investment; provided, however, that for purposes of this clause
(vii), cash dividends or distributions shall not include the Southam Dividend
Amount or any cash dividends or distributions received by Publishing or any
Wholly Owned Restricted Subsidiary in accordance with Section 10.09(b)(vi);
(viii) provided that The Telegraph is a Restricted Subsidiary, Investments in
West Ferry Printers and Trafford Park Printers to cover The Telegraph's share
of operating losses associated with the printing of newspapers and to finance
capital expenditures related to the printing business; provided that at any
time of any such Investment, neither West Ferry Printers nor Trafford Park
Printers shall be engaged in any business other than the business of printing
newspapers, periodicals and similar media;
(ix) Investments by Southam in Newspaper Businesses and Media Businesses and
Media Businesses in Canada; provided that (i) Southam is at the time a
Restricted Subsidiary, (ii) Southam is at the time a Public Entity and (iii)
the Investment is not made in an Affiliate of Southam (other than a
Subsidiary of Southam); and provided further that, unless such Investment by
Southam otherwise qualifies as a Permitted Investment under this definition
(other than pursuant to this clause (x)), such Investment will constitute a
Restricted Payment under Section 10.09;
32
32
(x) Investments by DTH or FDTH in Argsub Preferred, provided that (x) the
issuer of such Argsub Preferred simultaneously makes an Investment in Mirror
Preferred of DTH or FDTH, as the case may be, in an equivalent amount and (y)
such Mirror Preferred continues to qualify as such under the definition
thereof; and
(xi) in addition to the Investments described in clauses (i) through (xi)
of this definition of "Permitted Investments," Investments in any Restricted
Subsidiary, Unrestricted Subsidiary or in any joint venture or other entity
in an amount not to exceed $10,000,000 in aggregate since the date of this
Indenture; provided that so long as The Telegraph is a Restricted Subsidiary,
the loan of $6,000,000 from Publishing to FDTH prior to the time The
Telegraph became a Restricted Subsidiary shall not count against the
$10,000,000 amount provided for in this clause (xii).
"Permitted Junior Securities" means, so long as the effect of any exclusion
employing this definition is not to cause the Securities to be treated in any
case or proceeding or similar event described in clauses (a), (b) or (c) of the
first paragraph of Section 12.02 as part of the same class of claims as the
Senior Indebtedness or any class of claims pari passu with, or senior to, the
Senior Indebtedness, for any payment or distribution, debt or equity securities
of Publishing or any successor corporation provided for by a plan of
reorganization or readjustment that are subordinated at least to the same
extent that the Securities are subordinated to the payment of all Senior
Indebtedness then outstanding; provided that (1) if a new corporation results
from such reorganization or readjustment, such corporation assumes any Senior
Indebtedness not paid in full in cash or Cash Equivalents in connection with
such reorganization or readjustment and (2) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment.
"Permitted Real Estate Sale" means any Asset Sale not involving an Affiliate
of Publishing consisting of the sale of any printing or distribution facility
(including the associated real property and the improvements and fixtures
forming a part thereof) (other than the CST Real Estate) formerly used by
Publishing or a Restricted Subsidiary in
33
33
the production of newspapers and related publications (or acquired by one of
them as part of the acquisition of a Newspaper Business whether or not used by
Publishing) and that after such Asset Sale will not be used for the production
of any newspaper or related publication of Publishing or a Restricted
Subsidiary, provided that the aggregate value (as determined by the Board of
Directors of Publishing) of all such Asset Sales completed within any twelve
month period shall not exceed $5,000,000 (it being understood that this
definition does not include, among other things, any Asset Sale consisting of
the sale of any printing or distribution facility in connection with the sale
by Publishing or any Restricted Subsidiary of any Newspaper Business).
"Permitted Subsidiary Indebtedness" means Indebtedness of the Restricted
Subsidiaries, taken as a whole, with an aggregate principal amount outstanding
(calculated exclusive of the AP-91 Senior Notes) not in excess of the greater
of (x) $40,000,000 and (y) 10% of Consolidated Tangible Assets measured as of
the most recent fiscal quarter.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivisions thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over the
Capital Stock of any other class in such Person, provided that this definition
shall not include Mirror Preferred provided that such Mirror
34
34
Preferred continues to qualify as such under the definition thereof.
"Public Debt" means any notes, bonds or debentures or other evidence of
Indebtedness in the public markets or the market for securities sold pursuant
to Rule 144A under the Securities Act of 1933.
"Public Entity" means an entity (x) in which the equity interest of
Xxxxxxxxx International and its Affiliates does not exceed 80%, (y) in which
the market value of the Capital Stock held by nonaffiliates exceeds
$100,000,000 and (z) the Capital Stock of which is traded on a recognized
national securities exchange in the United States or a prescribed securities
exchange in Canada.
"Publishing" means Xxxxxxxxx International Publishing Inc., a corporation
incorporated under the laws of Delaware, until a successor Person shall have
become such pursuant to Article VIII of this Indenture and thereafter
"Publishing" shall mean such successor Person. To the extent necessary to
comply with the requirements of the provisions of Trust Indenture Act Sections
310 through 317 as they are applicable to Publishing, the term "Publishing"
shall include any other obligor with respect to the Securities for purposes of
complying with such provisions, including any Guarantor.
"Publishing Request" or "Publishing Order" means a written request or order
signed in the name of Publishing by any one of its Chairman of the Board, its
Vice Chairman, its President or a Vice President (regardless of Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and in form and substance
reasonably satisfactory to the Trustee and delivered to the Trustee.
"Qualified Capital Stock" of any Person means any and all Capital Stock of
such Person other than Redeemable Capital Stock.
"Rating Agency" means Standard & Poor's Corporation and its successors
("S&P"), and Xxxxx'x Investors Service, Inc. and its successors ("Moody's"), or
if S&P and Moody's or both shall not make a rating of the Securities publicly
available, a nationally recognized United States statistical rating agency or
agencies, substituted for S&P or Moody's or both, as the case may be.
"Rating Category" means each major rating category symbolized by (a) in the
case of S&P, AAA, AA, A, BBB, BB, B, CCC, CC and C and each such Rating
Category shall include pluses or minuses ("gradations") modifying such capital
35
35
letters; and (b) in the case of Moody's, Aaa, Aa, A, Baa, Ba, B, Caa, Ca and C
and each such Rating Category shall include added numerals such as 1, 2 or 3
("gradations") modifying such letters.
"Rating Decline" means an event that will be deemed to have occurred if, on
any date within the period (the "Rating Period") beginning on the date (the
"Reference Date") of the earlier to occur of (A) the first public announcement
by Publishing or any other Person of an intention to effect any Designated
Transaction and (B) the occurrence of such Designated Transaction, and ending
on the date 90 days thereafter, either of the following events has occurred:
(1) the Securities of any Series (or any other securities of Publishing which
are rated by a Rating Agency on the date which is 61 days prior to the
Reference Date (the "Rating Date")) shall be rated by any Rating Agency at any
time during the Rating Period at a rating which is lower than the rating of the
Securities of such Series (or such other securities of Publishing, as the case
may be) by such Rating Agency on the Rating Date by one or more gradations
(including gradations within Rating Categories as well as between Rating
Categories) or (2) any Rating Agency shall have withdrawn its rating of the
Securities of any Series (or such other securities of Publishing, as the case
may be) during the Rating Period.
"Redeemable Capital Stock" means any Capital Stock that, either by its terms
or by the terms of any security into which it is convertible or exchangeable or
otherwise, is, or upon the happening of an event or passage of time would be,
required to be redeemed prior to any Stated Maturity of the principal of the
Securities or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to any such Stated Maturity at the option of
the holder thereof; provided that this definition shall not include Mirror
Preferred provided that such Mirror Preferred continues to qualify as such
under the definition thereof.
"Redemption Date" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed
pursuant to any provision in this
36
36
Indenture means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
relating to a particular Series means the date specified in the Board
Resolution or supplemental indenture relating to such Series.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Division of the Trustee or any agent of
the Trustee appointed hereunder, including the president, any vice president,
any assistant vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated functions similar to
those performed by any of the above designated officers or any other officer
appointed hereunder to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means, initially, each Subsidiary of Publishing
existing on the date of this Indenture, other than DTH and its Subsidiaries,
and any other Subsidiary designated from time to time by the Board of Directors
of Publishing as a "Restricted Subsidiary" in accordance with Section 10.21 of
this Indenture.
"Restricted Subsidiary Guarantor" means each Subsidiary of Publishing that
is required to issue a Guarantee of the Securities under the terms of this
Indenture.
"Scheme of Arrangement" means the acquisition by FDTH of the publicly held
shares in The Telegraph not owned by FDTH or any of its Affiliates effected by
way of a "Scheme of Arrangement under Section 425 of the Companies Xxx 0000 of
England.
37
37
"Securities" has the meaning specified in the first recital of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Guarantor Indebtedness" means, with respect to any Guarantor, such
Guarantor's guarantee of Publishing's payment obligations in respect of the New
Bank Credit Facility, the FDTH Credit Agreement and any other Indebtedness of
such Guarantor (other than as otherwise provided in this definition), whether
outstanding on the date of this Indenture 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 Guarantees. Notwithstanding the foregoing, "Senior Guarantor
Indebtedness" shall not include (i) Indebtedness evidenced by such Guarantor's
Guarantee of the Securities; (ii) Indebtedness of such Guarantor that is
subordinate or junior in right of payment to any other Indebtedness of such
Guarantor; (iii) Indebtedness of such Guarantor which, when Incurred and
without respect to any other election under Section 1111(b) of Xxxxx 00, Xxxxxx
Xxxxxx Code, is without recourse to such Guarantor; (iv) Indebtedness which is
represented by Redeemable Capital Stock of such Guarantor; (v) any liability
for foreign, federal, state, local or other taxes owed or owing by such
Guarantor; (vi) Indebtedness of such Guarantor to a Restricted Subsidiary or
any other Affiliate of such Guarantor or any of such Affiliate's subsidiaries;
(vii) that portion of any Indebtedness which at the time of Incurrence is
issued in violation of this Indenture; and (viii) trade payables owed or owing
by such Guarantor.
"Series" means any series of debentures, notes, bonds or other evidences of
indebtedness issued pursuant to Article III hereof or a supplemental indenture.
"Senior Indebtedness" means, with respect to Publishing, the principal of,
premium, if any, and interest in respect of the New Bank Credit Facility and
any other Indebtedness of Publishing (other than as otherwise provided in this
definition), whether outstanding on the date of this Indenture or thereafter
created, Incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
38
38
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities. Without limiting the
generality of the foregoing, "Senior Indebtedness" shall include the principal
of, premium, if any, interest and all other obligations owing to the lenders
under (a) the New Bank Credit Facility and (b) holders under the Senior
Securities. Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (i) Indebtedness evidenced by the Securities; (ii) Indebtedness of
Publishing that is subordinate or junior in right of payment to any other
Indebtedness of Publishing; (iii) Indebtedness of Publishing which, when
Incurred and without respect to any other election under Section 1111(b) of
Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to Publishing; (iv)
Indebtedness which is represented by Redeemable Capital Stock; (v) any
liability for foreign, federal, state, local or other taxes owed or owing by
Publishing; (vi) Indebtedness of Publishing to a Restricted Subsidiary or any
other Affiliate of Publishing or any of such Affiliate's subsidiaries; (vii)
that portion of any Indebtedness which at the time of Incurrence is issued in
violation of this Indenture; and (viii) trade payables owed or owing by
Publishing.
"Series A Preferred Shares" means the Series A Redeemable Convertible
Preferred Stock of Xxxxxxxxx International, as in effect on the date of this
Indenture.
"Services Agreement" means the Services Agreement dated as of February 7,
1996, as amended in connection with the offering of the Securities, among
Xxxxxxxxx International, Publishing and Xxxxxxxxx Inc., and as the same may be
further amended in accordance with the terms of this Indenture.
"Southam" means Southam Inc., a corporation continued under the laws of
Canada.
"Southam Cash Flow" means, for any period, an amount equal to the Southam
Net Income for such period, plus, to the extent deducted in calculating such
Southam Net Income, (a) interest expense and other financing costs and
expenses, (b) dividends paid on any Preferred Stock of Restricted Subsidiaries
of Southam to the extent such Preferred Stock is included as Indebtedness in
the calculation of the Southam Cash Flow Ratio, (c) depreciation and
amortization, and (d) all taxes, whether or not deferred, applicable to such
period.
39
39
For purposes of calculating Southam Cash Flow for the four fiscal quarters
most recently completed prior to any date on which an action is taken that
requires a calculation of the Southam Cash Flow Ratio, (a) any Person that is a
Restricted Subsidiary of Southam on such date (or would become a Restricted
Subsidiary of Southam in connection with the transaction that requires the
determination of such ratio) shall be deemed to have been a Restricted
Subsidiary of Southam at all times during such period, (b) any Person that is
not a Restricted Subsidiary of Southam on such date (or would cease to be a
Restricted Subsidiary of Southam in connection with the transaction that
requires the determination of such ratio) shall be deemed not to have been a
Restricted Subsidiary of Southam at any time during such period;(c)if Southam
or any of its Restricted Subsidiaries shall have in any manner acquired or
disposed of any operating business during or subsequent to such period, such
calculation shall be made on a pro forma basis on the assumption that such
acquisition or disposition has been completed on the first day of such period;
and (d) in the case of a Restricted Subsidiary that is not a Wholly Owned
Restricted Subsidiary, the determination of the percentage of the Operating
Cash Flow of such Restricted Subsidiary that is to be included in the
calculation of the Consolidated Publishing's Consolidated Cash Flow Ratio
shall be made on a pro forma basis on the assumption that the percentage of
Publishing's common equity interest in such Restricted Subsidiary on the first
day of such period was equivalent to its common equity interest on the date of
the determination (it being understood, in the case of the foregoing clause
(c), that if such pro forma calculations have been made in accordance with
Regulation S-X under the Exchange Act, such method of calculation (but not
necessarily the adjustments) shall be presumed to be acceptable).
"Southam Cash Flow Ratio" means, as at any date of determination, the ratio
of (i) the aggregate amount of Indebtedness of Southam and its Restricted
Subsidiaries outstanding as at such date to (ii) the Southam Cash Flow
(determined on a Consolidated basis for Southam and its Restricted
Subsidiaries) for the most recently completed period of four consecutive fiscal
quarters of Southam, provided that once Southam is a Restricted Subsidiary, for
the purpose of determining the Southam Cash Flow Ratio, the Indebtedness and
Southam Cash Flow of Restricted Subsidiaries of Southam that are not Wholly
Owned Restricted Subsidiaries of Southam will be determined in accordance
40
40
with the actual percentage of Southam's common equity interest in such
Restricted Subsidiary on the date of determination of the Southam Cash Flow
ratio (thus, for example, in the case of a Restricted Subsidiary of Southam in
which Southam owns 51% common equity interest, 51% each of such Restricted
Subsidiary's indebtedness and Southam Cash Flow would be included in the
calculation of Southam's aggregate Indebtedness and the aggregate of Southam
Cash Flow, respectively).
"Southam Dividend Amount" means the lesser of (x) the aggregate amount paid
or payable by Xxxxxxxxx International since the date of original issuance of
the Securities in respect of regularly scheduled periodic dividends on the
Series A Preferred and (y) the aggregate amount of the Southam Interests
Dividends received by Publishing since the date of original issuance of the
Securities on account of its ownership interest (whether direct or indirect) in
Southam.
"Southam Interests" means 7,395,000 Southam common shares held by Xxxxxxxxx
International or it subsidiaries; provided, however, that if Southam shall pay
a dividend, or make a distribution, on its common shares in the form of capital
stock of the same or another corporation, or subdivide its outstanding common
shares into a greater number of common shares, or combine its outstanding
common shares into a smaller number of common shares, or effect a
reorganization or reclassification of its Capital Stock, or amalgamate, enter
into an arrangement or consolidation or merge with or into another entity
(other than an amalgamation, arrangement, consolidation or merger which does
not result in a reclassification or change of the outstanding common shares of
Southam), the "Southam Interests" shall thereafter include any securities
distributed with respect to any such shares or into which any such shares shall
be converted, changed or reclassified or for which any such shares shall be
exchanged.
"Southam Interests Dividend" means a dividend or other distribution paid on
or with respect to the Southam Interests on or prior to the earlier of (i) the
redemption date for the redemption of all the Series A Preferred Shares
outstanding as of such redemption date or (ii) the date of final distribution
to the holders of the Series A Preferred Shares of the full preferential amount
provided under the terms thereof; provided, however, that the term "Southam
Interests Dividend" does not mean or include (x) any part of
41
41
any dividend or distribution that is payable otherwise than in cash or that
constitutes an Extraordinary Cash Dividend as applied to the Southam Interests,
or (y) any dividend or distribution on or with respect to the 7,395,000 Southam
common shares held by Xxxxxxxxx International or its subsidiaries.
"Southam-Linked Debentures" means the debentures of Xxxxxxxxx Inc. in the
original principal amount of Cdn.$125,000,000 due November 1, 1998.
"Southam Net Income (Loss)" means, for any period, the Consolidated net
income (or loss) (and treating a loss as a negative number)) of Southam and its
Restricted Subsidiaries for such period as determined in accordance with GAAP,
adjusted by (a) excluding, without duplication, to the extent included in
calculating such Consolidated net income (or loss), (i) all extraordinary gains
and losses, (ii) the portion of Consolidated net income (or loss) of Southam
and its Restricted Subsidiaries allocable to Investments in unconsolidated
Persons (other than Unrestricted Subsidiaries) to the extent that cash
dividends or distributions have not actually been received by such Southam or
one of its Restricted Subsidiaries, (iii) the portion of Consolidated net
income (or loss) of Southam and its Restricted Subsidiaries allocable to
Southam's Unrestricted Subsidiaries (or to payments received therefrom), (iv)
net income (or loss) of a Person combined with Southam or any of its
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (v) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan, (vi) aggregate net gains
and losses (less all fees and expenses relating thereto) in respect of
dispositions of assets (including without limitation sales of shares of
Unrestricted Subsidiaries or unconsolidated Persons and noncash writeoffs of
assets (provided that there are no continuing cash expenses related to such
writeoffs)) other than in the ordinary course of business, (vii) the net income
of any Restricted Subsidiary to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is not at
time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Restricted Subsidiary or its
stockholders; provided, however, that the foregoing shall not apply to the
restrictions permitted under clause (iv) of
42
42
Section 10.17 (to the extent such clause is applicable at the time of
determination), (viii) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of income
accrued at any time following the date of the Indenture, (ix) any net gain from
the collection of proceeds of life insurance policies, (x) any gain arising
from the acquisition of any securities, or the extinguishment, under GAAP, of
any Indebtedness of Southam or one of its Restricted Subsidiaries, (xi)
aggregate net gains or losses relating to foreign currency transactions or
translations, (xii) redundancy costs relating to the permanent elimination of
jobs, provided that the amount of such expenses are certified by Southam's
independent accountants and (b) subtracting, without duplication, the aggregate
amount of dividends on Preferred Stock of Restricted Subsidiaries of Southam
(i) to the extent such Preferred Stock is not equivalent to Common Stock for
purposes of the payment of dividends and (ii) to the extent that such Preferred
Stock is included as Indebtedness in the calculation of the Southam Cash Flow
Ratio.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest, as the case may be, is due and payable.
"Subordinated Guarantor Indebtedness" means Indebtedness of a Guarantor
subordinated in right of payment to such Guarantor's Guarantee.
"Subordinated Indebtedness" means (i) in the case of any person other than
Publishing, Indebtedness of such person that is expressly subordinate in right
of payment to any other Indebtedness of such Person pursuant to a written
agreement, and (ii) in the case of Publishing, Indebtedness of Publishing that
is expressly subordinate in right of payment to the Senior Subordinated
Securities.
"Subsidiary" means any Person a majority of the equity ownership of the
Voting Stock of which is at the time owned, directly or indirectly, by
Publishing or by one or more Subsidiaries, or by Publishing and one or more
other Subsidiaries; provided that, notwithstanding the foregoing, (i) Southam
will be a Subsidiary so long as majority of the Voting Stock of Southam is held
by a Person in which,
43
43
directly or indirectly, (x) 50% of the Voting Stock is held by Publishing and
the remainder is held by Xxxxxxxxx Inc. and (y) 100% of the nonvoting Capital
Stock is held by Publishing, and (ii) Xxxxxxxxx Eastern will be a Subsidiary so
long as 50% of its Voting Stock is held, directly or indirectly, by Publishing
and the remainder is held, directly or indirectly, by Xxxxxxxxx Inc.
"Tax Sharing Agreement" means an agreement providing for the payment of
amounts in lieu of income taxes among Publishing and other companies with which
it forms a single consolidated tax group.
"Telegraph" means Telegraph Group Limited (formerly The Telegraph plc), a
corporation under the laws of England.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest by the United
States of America, (ii) any certificate of deposit, maturing not more than one
year after the date of acquisition, issued by, or time deposit of the Trustee
or a commercial banking institution that is a member of the Federal Reserve
System and that has combined capital and surplus and undivided profits of not
less than $500,000,000, whose debt has a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher") according to S&P, (iii) commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than an
Affiliate or Restricted Subsidiary of Publishing) organized and existing under
the laws of the United States of America with a rating, at the time as of which
any investment therein is made, of "P-1" (or higher according to Moody's or
"A-1" (or higher) according to S&P, (iv) any money market deposit accounts
issued or offered by the Trustee or a domestic commercial bank having capital
and surplus in excess of $500,000,000.
44
44
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture, until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee. If at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Unrestricted Subsidiary" means any Subsidiary that is not a Restricted
Subsidiary, including any Restricted Subsidiary that becomes an Unrestricted
Subsidiary in accordance with Section 10.21 of this Indenture; provided,
however, that a Person may not be designated as an Unrestricted Subsidiary
unless (i) the creditors of such Person have no direct or indirect recourse
(including, but not limited to, recourse with respect to the payment of
principal or interest on Indebtedness of such Subsidiary) to Publishing or a
Restricted Subsidiary and (ii) a default by such Person on any of its
Indebtedness will not result in, or permit any holder of Indebtedness of
Publishing or a Restricted Subsidiary to declare, a default on such
Indebtedness of Publishing or a Restricted Subsidiary or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity. Any
subsidiary of an Unrestricted Subsidiary shall be an Unrestricted Subsidiary
for purposes of this Indenture.
"Voting Stock" means stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all the
outstanding Capital Stock (other than directors' qualifying shares) of which
are owned by Publishing or another Wholly Owned Restricted Subsidiary or, in
the case of a Restricted Subsidiary of Southam, all the outstanding Capital
Stock (other than directors' qualifying shares) of which are owned by Southam
or another Wholly Owned Restricted Subsidiary of Southam.
45
45
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 1.05
"Change of Control Offer" 10.15
"Change of Control Purchase Date" 10.15
"Change of Control Purchase Notice" 10.15
"Change of Control Purchase Price" 10.15
"covenant defeasance" 4.03
"Defaulted Interest" 3.07
"defeasance" 4.02
"Defeasance Redemption Date" 4.04
"Defeased Securities" 4.01
"Deficiency" 10.14
"Excess Proceeds" 10.14
"Initial Blockage Period" 12.03
"Note Amount" 10.14
"Offer" 10.14
"Offered Price" 10.14
"Pari Passu Debt Amount" 10.14
"Pari Passu Offer" 10.14
"Payment Blockage Period" 12.03
"Permitted Payment" 10.09
"Purchase Date" 10.14
"refinancing" 10.09
"Required Filing Dates" 10.18
"Restricted Payments" 10.09
"Security Register" 3.05
"Security Registrar" 3.05
"Senior Representative" 12.03
"Special Payment Date" 3.07
"Surviving Entity" 8.01
"U.S. Government Obligations" 4.04
SECTION 1.03. Compliance Certificates and Opinions. Upon any application
or request by Publishing to the Trustee to take any action under any provision
of this Indenture, Publishing shall furnish to the Trustee an Officers'
Certificate to the effect that all conditions precedent, if any, provided for
in this Indenture (including any covenant compliance with which constitutes a
condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel to the effect that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that, in the
case of any such application or request as to which the
46
46
furnishing of any certificates and/or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement to the effect that each individual or firm signing such
certificate or opinion has read and understands such covenant or condition
and the definitions herein relating thereto;
(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 to the effect that, in the opinion of each such individual
or such firm, he has made such examination or investigation as is necessary
to enable him or them to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual or
such firm, such condition or covenant has been complied with.
SECTION 1.04. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of Publishing may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to
47
47
the matters upon which his certificate or opinion is based are erroneous. Any
certificate or opinion of such an officer or of counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of Publishing with respect to such
factual matters and which contains a statement to the effect that the
information with respect to such factual matters is in the possession of
Publishing, unless such officer or counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of Publishing or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.05. 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 of any Series 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 Publishing. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and Publishing, if made in the manner provided in this
Section.
(b) The ownership of Securities shall be proved by the Security Register.
48
48
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of
the same Security or the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything
done, suffered or omitted to be done by the Trustee, any Paying Agent or
Publishing in reliance thereon, whether or not notation of such action is made
upon such Security.
(d) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate of affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
SECTION 1.06. Notices, etc., to Trustee and Publishing. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
(a) the Trustee by any Holder or by Publishing shall be sufficient for every
purpose hereunder if made, given, furnished or filed, in writing, by
first-class mail postage prepaid (return receipt requested) or delivered in
person or by recognized overnight courier to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Division, or at any other
address furnished in writing prior thereto to the Holders and Publishing by
the Trustee; or
(b) Publishing or Xxxxxxxxx International shall be sufficient for every
purpose (except as provided in Section 5.01(c)) hereunder if in writing and
mailed, first-class postage prepaid or delivered by recognized overnight
courier, to Publishing, addressed to it at: 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx,
XX 00000 Attn: General Counsel or to Xxxxxxxxx International,
49
49
addressed to it at: 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 Attn: General
Counsel, or at any other address previously furnished in writing to the
Trustee by Publishing or Xxxxxxxxx International, as the case may be.
SECTION 1.07. Notice to Holders; Waiver. Where this Indenture or the
Securities of any Series provide for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Any notice when mailed to a Holder
in the aforesaid manner shall be conclusively deemed to have been received by
such Holder whether or not actually received by such Holder. Where this
Indenture or the Securities of any Series provide for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to mail notice of any event as
required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee or Publishing, as
applicable, shall be deemed to be a sufficient giving of such notice.
SECTION 1.08. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with any provision of the Trust Indenture Act or
another provision which is required or deemed to be included in this Indenture
by any of the provisions of the Trust Indenture Act, the provision or
requirement of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, such provision of the Trust
50
50
Indenture Act shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in this
Indenture by Publishing or any Guarantor shall bind its successors and assigns,
whether so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this Indenture
or in the Securities of any Series shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person (other than the
parties hereto and their successors hereunder, any Paying Agent and the
Holders) any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.13. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
SECTION 1.14. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal or premium, if any, need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at Maturity or the Stated Maturity, and no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date, Maturity or Stated Maturity, as the case may be, to the
next succeeding Business Day.
51
51
SECTION 1.15. Schedules. All schedules attached hereto are by this
reference made a part with the same effect as if herein set forth in full.
SECTION 1.16. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities and the Trustee's
certificate of authentication thereof shall be in substantially the forms set
forth in this Article II, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange, any organizational document or
governing instrument or applicable law or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the
delivery of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution, Publishing shall deliver to the Trustee
the Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true
52
52
and correct copy of the form of Security which has been approved thereby or, if
a Board Resolution authorizes a specific officer or officers to approve of form
of Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to
Publishing.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be included on the form of the
face of the Securities substantially in the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK OF
CONNECTICUT, as Trustee
by
------------------------
Authorized Signatory
SECTION 2.04. Form of Guarantee of Xxxxxxxxx International.
The form of Guarantee of Xxxxxxxxx International shall be set forth on the
Securities substantially as follows:
GUARANTEE OF XXXXXXXXX INTERNATIONAL INC.
For value received, XXXXXXXXX INTERNATIONAL INC., a Delaware corporation,
hereby absolutely, unconditionally and irrevocably guarantees to the holder of
this Security and the Trustee, as if Xxxxxxxxx International were the principal
debtor, the punctual payment of principal of, premium, if any, and interest on
this Security in the amounts and at the time when due and interest on the
overdue principal and interest, if any, of this Security, if lawful, and the
payment or performance of all other obligations of Publishing under the
Indenture or the Securities, to the holder of this Security and the Trustee,
all in accordance
53
53
with and subject to the terms and limitations of this Security and Article
Fourteen of the Indenture. This Guarantee will not become effective until the
Trustee duly executes the certificate of authentication on this Security.
XXXXXXXXX INTERNATIONAL INC.
Attest: By
--------------------- -----------------------
Authorized Signatory
SECTION 2.05. Securities Issuable in the Form of a Global Security. (a)
If Publishing shall establish pursuant to Sections 2.02 and 3.01 that the
Securities of a particular Series are to be issued in whole or in part in the
form of one or more Global Securities, then Publishing shall execute and the
Trustee or its agent shall, in accordance with Section 3.03 and any order by
Publishing delivered to the Trustee or its agent thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such Series to be represented by such Global
Security or Securities, or such portion thereof as Publishing shall specify in
such order, (ii) shall be registered in the name of the Depository for such
Global Security or Securities or its nominee, (iii) shall be delivered by the
Trustee or its agent to the Depository or pursuant to the Depository's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized representative of the
Depository to Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of the nominee of
the Depository or in such other name as is requested by an authorized
representative of the Depository (and any payment is made to the nominee of the
Depository or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, the nominee of the Depository, has an interest
herein."
(b) Notwithstanding any other provision of this Section 2.05 or of Section
3.05, and subject to the provisions of paragraph (c) below, unless the terms of
a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Securities, a
54
54
Global Security may be transferred, in whole but not in part and in the manner
provided in Section 3.05, only to a nominee of the Depository for such Global
Security, or to the Depository, or a successor Depository for such Global
Security selected or approved by the Company, or to a nominee of such successor
Depository.
(c) (i) If at any time the Depository for a Global Security notifies
Publishing that it is unwilling or unable to continue as Depository for such
Global Security or if at any time the Depository for the Securities for such
Series shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
Publishing shall appoint a successor Depository with respect to such Global
Security. If a successor Depository for such Global Security is not appointed
by Publishing within 90 days after Publishing receives such notice or becomes
aware of such ineligibility, Publishing will execute, and the Trustee or its
agent, upon receipt of a request by Publishing for the authentication and
delivery of individual Securities of such Series in exchange for such Global
Security, will authenticate and deliver, individual Securities of such Series
of like tenor and terms in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
(ii) Publishing may at any time and in its sole discretion determine that
the Securities of any Series or portion thereof issued or issuable in the form
of one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event Publishing will execute, and the
Trustee, upon receipt of a Company Request for the authentication and delivery
of individual Securities of such Series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Securities of
such Series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global Security or
Securities representing such Series or portion thereof in exchange for such
Global Security or Securities.
(iii) If specified by Publishing pursuant to Sections 2.02 and 3.01 with
respect to Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such Series of like
tenor and terms in definitive form on
55
55
such terms as are acceptable to Publishing and such Depository. Thereupon
Publishing shall execute, and the Trustee or its agent shall authenticate and
deliver, without service charge, (1) to each Person specified by such
Depository a new Security or Securities of the same Series of like tenor and
terms and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest as specified by such Depository in the Global Security; and
(2) to such Depository a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs,
Publishing will execute and the Trustee or its agent will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for individual Securities, such Global Security shall be cancelled by
the Trustee or its agent. Except as provided in the preceding paragraph,
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or the
Security Registrar. The Trustee or the Security Registrar shall deliver at its
Corporate Trust Office such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE III
The Securities
SECTION 3.01. General Title; General Limitations; Issuable in Series; Terms
of Particular Series. The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is not limited.
The Securities may be issued in one or more Series as from time to time may
be authorized by the Board of Directors. There shall be established in or
pursuant to a Board Resolution or in a supplemental indenture, subject to
56
56
Section 3.11, prior to the issuance of Securities of any such Series:
(1) the title of the Securities of such Series (which shall distinguish the
Securities of such Series from Securities of any other Series);
(2) any limit upon the aggregate principal amount of the Securities of such
Series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of such Series pursuant
to Section 3.04, 3.05, 3.06, 9.06, and 11.08 and except for any Securities
which, pursuant to Section 3.03, are deemed never to have been authenticated
and delivered hereunder);
(3) the Person to whom any interest on a Security of such Series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Securities of such
Series is payable;
(5) the rate or rates at which the Securities of such Series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment
Date;
(6) the place or places where the principal of and any premium and interest
on Securities of such Series shall be payable;
(7) the price or prices at which the Securities of such Series shall be
issued;
(8) the period or periods within which the Redemption Price or Prices at
which and the terms and conditions upon which Securities of such Series may
be redeemed or repaid, as the case may be, in whole or in part, at the option
of Publishing or the Holder;
57
57
(9) the obligation, if any, of Publishing to purchase Securities of such
Series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of such
Series shall be purchased, in whole or in part, pursuant to such obligation;
(10) provisions, if any, with regard to the conversion or exchange of the
Securities of such Series, at the option of the Holders thereof or the
Company, as the case may be, for or into new Securities of a different
Series, Common Stock or other securities and, if the Securities of such
Series are convertible into Common Stock or other Marketable Securities, the
Conversion Price therefor;
(11) any terms applicable to Securities of such Series issued at an issue
price below their stated principal amount, including the issue price thereof
and the rate or rates at which such original issue discount will occur;
(12) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of such Series shall be
issuable;
(13) if other than U.S. dollars, the currency or currencies or units based
on or related to currencies in which the Securities of such Series shall be
denominated and in which payments of principal of, and any premium and
interest on, such Securities shall or may be payable;
(14) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of such Series may be determined with
reference to an index based on a coin or currency (including a composite
currency) other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
(15) if the principal of (and premium, if any) or interest, if any, on the
Securities of such Series are to be payable, at the election of Publishing or
a Holder thereof, in a coin or currency (including a composite currency)
other than that in which the
58
58
Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(16) the portion of the principal amount of Securities of the Series, if
other than the principal amount thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02
or provable in bankruptcy pursuant to Section 5.04;
(17) any Event of Default with respect to the Securities of such Series, if
not set forth herein, and any additions, deletions or other changes to the
Events of Default set forth herein that shall be applicable to the Securities
of such Series;
(18) any special United States Federal income tax considerations applicable
to the Securities of such Series;
(19) if the Securities of such Series shall be issued in whole or in part in
the form of a Global Security or Securities, the terms and conditions, if
any, upon which such Global Security or Securities may be exchanged in whole
or in part for other individual Securities; and the Depository for such
Global Security or Securities; and
(20) any other terms of such Series,
all upon such terms as may be determined in or pursuant to such Board
Resolution or supplemental indenture with respect to such Series.
The form of the Securities of each Series shall be established pursuant to
the provisions of this Indenture in or pursuant to the Board Resolution or in
the supplemental indenture creating such Series. The Securities of each Series
shall be distinguished from the Securities of each other Series in such manner,
reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a particular Series,
the Securities of any Series may only be issuable in registered form, without
coupons.
59
59
Any terms or provisions in respect of the Securities of any Series issued
under this Indenture may be determined pursuant to this Section by providing
for the method by which such terms or provisions shall be determined.
SECTION 3.02. Denominations. The Securities of each Series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such Series. In the absence of any such
provisions with respect to the Securities of any Series, the Securities of that
Series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
The Securities shall be redeemable as provided in Article XI.
At the election of Publishing, the entire indebtedness on the Securities or
certain of Publishing's obligations and covenants and certain Events of Default
thereunder may be defeased as provided in Article IV.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XII.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of Publishing by one of its Chairman of
the Board, Vice-Chairman, President or one of its Vice Presidents under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of Publishing shall bind Publishing,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, Publishing may deliver Securities executed by Publishing to the
Trustee for authentication, together with a Publishing Order for the
60
60
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case Publishing, pursuant to Article VIII, shall be consolidated or
merged with or into any other Person or shall sell, convey, assign, transfer,
lease or otherwise dispose of substantially all of its properties and assets to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which Publishing shall have been merged or
consolidated, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article VIII, any of
the Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon a Publishing Request of the successor Person, shall authenticate and
deliver Securities as specified in such request for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in
any new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of a Holder but without expense to such Holder,
shall provide for the exchange of all Securities at the time Outstanding held
by such Holder for Securities authenticated and delivered in such new name.
61
61
The Trustee may appoint an authenticating agent reasonably acceptable to
Publishing to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities 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 any Security Registrar or Paying
Agent to deal with Publishing and its Affiliates.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities of any Series, Publishing may execute, and upon a Publishing Order
the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities of any Series are issued, Publishing will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of Publishing designated for such purpose
pursuant to Section 10.02 (or in accordance with Section 3.03, in the case of
the initial Securities), without charge to the Holders thereof. Upon surrender
for cancellation of any one or more temporary Securities, Publishing shall
execute and upon a Publishing Order the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of such
Series of authorized denominations. Until so exchanged the temporary
Securities of such Series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
Publishing shall cause to be kept at the Corporate Trust Office of the Trustee,
or such other office as the Trustee may designate, a register (the register
maintained in such office and in any other office or agency designated pursuant
to Section 10.02 being herein sometimes referred to as the "Security Register")
in which,
62
62
subject to such reasonable regulations as the Security Registrar may prescribe,
Publishing shall provide for the registration of Securities, or of Securities
of a particular Series, and of transfers of Securities or of Securities of such
Series. The Trustee or an agent thereof or of Publishing shall initially be
the "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. Publishing may appoint one or more
co-registrars, but there shall be only one Security Register per Series of
Securities.
Upon surrender for registration of transfer of any Security at the office or
agency of Publishing designated pursuant to Section 10.02, Publishing shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of such Series
of any authorized denomination or denominations, of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
Publishing shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of Publishing, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer, or for
exchange or redemption, shall (if so required by Publishing or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to Publishing, the Trustee and the Security Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any registration of,
transfer, exchange or redemption of Securities, but Publishing or the Trustee
may require payment of a sum sufficient to pay all or other governmental
charges that may be imposed in connection with any
63
63
registration of, transfer, exchange or redemption of Securities, other than
exchanges pursuant to Section 3.03 3.04, 3.06, 9.06, 10.15, 10.16 or 11.08 not
involving any transfer.
Publishing shall not be required (a) to issue, register the transfer of or
exchange any Security of any Series during a period beginning at the opening of
business (i) 15 days before the mailing of a notice of redemption of the
Securities selected for redemption under Section 11.04 and ending at the close
of business on the day of such mailing or (ii) 15 days before an Interest
Payment Date and ending on the close of business on the Interest Payment Date,
or (b) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of Securities
being redeemed in part.
None of Publishing, the Trustee, any agent of the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (a) any
mutilated Security is surrendered to the Trustee, or (b) Publishing and the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and there is delivered to Publishing or the Trustee,
such security and/or indemnity, in each case as may be required by them to save
each of them harmless, then, in the absence of notice to Publishing or the
Trustee that such Security has been acquired by a bona fide purchaser,
Publishing shall execute and upon receipt of a Publishing Request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, Publishing in its discretion may, instead
of issuing a replacement Security, pay such Security.
64
64
Upon the issuance of any replacement Securities under this Section,
Publishing may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and its agents and counsel) connected therewith.
Every replacement Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of Publishing, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities of the same Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
the Stated Maturity of such interest shall be paid to the Person in whose name
that Security is registered at the close of business on the Regular Record Date
for such interest payment.
Any interest on any Security which is payable, but is not paid or duly
provided for on the Stated Maturity of such interest (or within 15 days after
the Stated Maturity of such interest) and interest on such defaulted interest
at the then applicable interest rate borne by the Securities, to the extent
lawful (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") shall forthwith cease to be payable to the Holder in
whose name such Security is registered as of the Regular Record Date; and such
Defaulted Interest may be paid by Publishing, at its election in each case, as
provided in Subsection (a) or (b) below:
(a) Publishing may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner.
65
65
Publishing shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment (the "Special Payment Date"), and at the same time Publishing shall
irrevocably deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the Special Payment Date, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Subsection provided. Such notice shall be received by the Trustee no less
than 30 days prior to the Special Payment Date. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which
Special Record Date shall be not more than 15 days and not less than 10 days
prior to the Special Payment Date and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify Publishing in writing of such Special Record Date. In the
name and at the expense of Publishing, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date and
Special Payment Date therefor to be mailed, certified or registered (return
receipt requested) first-class postage prepaid, to each Holder at his address
as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the Proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
are registered on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (b).
(b) Publishing may make payment to the Persons in whose name the Securities
are registered at the close of business on the Special Record Date of any
Defaulted Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, unless,
after written notice given by Publishing to the Trustee of the proposed
payment pursuant to this Subsection, such manner of payment shall not be
deemed practicable by the Trustee (acting reasonably). The Trustee shall
66
66
give prompt written notice to Publishing of any such determination.
Subject to the foregoing provisions of this Section 3.07, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, Publishing, the Trustee and any agent of
Publishing or the Trustee may treat the Person in whose name any Security is
registered on the Security Register as the owner of such Security for the
purpose of receiving payment of principal of, premium, if any, and (subject to
Section 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of Publishing, the Trustee or
any agent of Publishing or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
purchase, redemption, registration of transfer or exchange shall be delivered
to the Trustee and, if not already canceled, shall be promptly canceled by it.
Publishing or any Restricted Subsidiary may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which Publishing or any such Restricted Subsidiary may have acquired
in any manner whatsoever, and all Securities so delivered shall upon receipt of
a Publishing Order be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
securities held by the Trustee shall, unless by a Publishing Order received by
the Trustee prior to such destruction Publishing shall direct that the canceled
Securities be returned to it, be destroyed in accordance with its customary
procedures and
67
67
certification of their destruction delivered to Publishing. The Trustee shall
provide Publishing a list of all Securities that have been canceled from time
to time as requested by Publishing.
SECTION 3.10. Computation of Interest. Unless otherwise provided as
contemplated in Section 3.01, interest on the Securities shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Delayed Issuance of Securities. Notwithstanding any contrary
provision herein, if all Securities of a Series are not to be originally issued
at one time, it shall not be necessary for Publishing to deliver to the Trustee
an Officers' Certificate, Board Resolution, supplemental indenture or Opinion
of Counsel otherwise required pursuant to Sections 1.03, 2.02, 3.01 and 3.03 at
or prior to the time of authentication of each Security of such Series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such Series to
be issued; provided that any subsequent request by Publishing to the Trustee to
authenticate Securities of such Series upon original issuance shall constitute
a representation and warranty by Publishing that as of the date of such
request, the statements made in the Officers' Certificate or other certificates
delivered pursuant to Sections 1.02 and 2.02 shall be true and correct as if
made on such date.
An Officers' Certificate or Board Resolution or supplemental indenture
delivered by Publishing to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time in the aggregate principal amount, if any, established
for such Series pursuant to such procedures acceptable to the Trustee as may be
specified from time to time upon the telephonic, electronic or written order of
Persons designated in such Officers' Certificate, supplemental indenture or
Board Resolution (any such telephonic or electronic instructions to be promptly
confirmed in writing by such Persons) and that such Persons are authorized to
determine, consistent with such Officers' Certificate, supplemental indenture
or Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or Board
Resolution.
68
68
ARTICLE IV
Defeasance and Covenant Defeasance
SECTION 4.01. Publishing's Option To Effect Defeasance or Covenant
Defeasance. Publishing may, at its option by Board Resolution, at any time,
with respect to any Series of Securities, elect to have either Section 4.02 or
Section 4.03 be applied to all of the Outstanding Securities of such Series
(the "Defeased Securities"), upon compliance with the conditions set forth
below in this Article IV.
SECTION 4.02. Defeasance and Discharge. Upon Publishing's exercise under
Section 4.01 of the option applicable to this Section 4.02, Publishing shall be
deemed to have been discharged from its obligations with respect to the
Defeased Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance") and each Guarantor shall be deemed to be discharged
from its obligations with respect to its Guarantee relating to the Defeased
Securities. For this purpose, such defeasance means that Publishing shall be
deemed to have paid and discharged the entire indebtedness represented by the
Defeased Securities, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.05 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of Publishing and upon written
request, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive, solely
from the trust fund described in Section 4.04 and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (b) Publishing's
obligations with respect to such Defeased Securities under Sections 3.04, 3.05,
3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties, indemnities and
immunities of the Trustee hereunder, and (d) this Article IV. Subject to
compliance with this Article IV, Publishing may exercise its option under this
Section 4.02 notwithstanding the prior exercise of its option under Section
4.03 with respect to the Securities.
69
69
SECTION 4.03. Covenant Defeasance. Upon Publishing's exercise under
Section 4.01 of the option applicable to this Section 4.03, Publishing shall be
released from its obligations under any covenant or provision contained in
Sections 10.05 through 10.19, inclusive, and the provisions of Article XII and
Sections 14.16 through 14.29 shall not apply, with respect to the Defeased
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Defeased Securities shall
thereafter be deemed to be 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 and provisions, but shall continue
to be deemed "Outstanding" for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to the Defeased Securities,
Publishing may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section or Article,
whether directly or indirectly, by reason of any reference elsewhere herein or
in such Defeased Securities to any such Section or Article or by reason of any
reference in any such Section or Article 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 5.01(c), (d) or (f) but, except as
specified above, the remainder of this Indenture and such Defeased Securities
shall be unaffected thereby.
SECTION 4.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 4.02 or
Section 4.03 to the Defeased Securities:
(1) Publishing shall irrevocably have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Series of Securities, (a) United States
dollars in an amount, (b) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (c) a combination thereof, in such amounts
as will be sufficient, as reflected in the written report of a nationally
recognized firm of independent public accountants or a nationally recognized
investment banking firm delivered to
70
70
the Trustee, to pay and discharge (and which shall be applied by the Trustee to
pay and discharge) the principal of, premium, if any, and interest on, the
Defeased Securities on (x) the Stated Maturity thereof or (y) any date selected
by Publishing on which the Defeased Securities may be redeemed in whole at the
option of Publishing (such date being referred to as the "Defeasance Redemption
Date"), if (in the case of clause (y)) when electing either defeasance or
covenant defeasance, Publishing has delivered to the Trustee an irrevocable
notice to redeem all of the outstanding Securities of such Series on the
Defeasance Redemption Date) of such principal or installment of interest;
provided that the Trustee (or such qualifying trustee) shall have been
irrevocably instructed to apply such United States dollars or the proceeds of
such U.S. Government Obligations to said payments with respect to the
Securities of such Series. For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United States of
America for the timely 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 of America the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) In the case of an election under Section 4.02, Publishing shall have
delivered to the Trustee an Opinion of Independent Counsel in the United States
to the effect that (A) Publishing has 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 the Holders of the Outstanding
71
71
Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such 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 defeasance had not occurred.
(3) In the case of an election under Section 4.03, Publishing shall have
delivered to the Trustee an Opinion of Independent Counsel in the United States
to the effect that the Holders of the Outstanding Securities of such Series
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 or insofar as subsections 5.01(g) and (h) are
concerned, at any time during the period ending on the 121st day after the date
of deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest with respect to any securities of Publishing.
(6) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or a breach or
violation of any provision of any agreement relating to any Senior
Indebtedness.
(7) Publishing shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that (A) the trust funds
will not be subject to any rights of holders of Senior Indebtedness, including
without limitation, those arising under this Indenture and (B) after the 121st
day following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(8) Publishing shall have delivered to the Trustee an Officers' Certificate
stating that the deposit was not made by Publishing with the intent of
preferring the holders of the Securities of such Series over the other
72
72
creditors of Publishing or with the intent of defeating, hindering, delaying or
defrauding creditors of Publishing.
(9) No event or condition shall exist that would prevent Publishing from
making payments of the principal of, premium, if any, and interest on the
Securities of such Series on the date of such deposit or at any time ending on
the 121st day after the date of such deposit.
(10) Publishing shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each to the effect that all
conditions precedent provided for relating to either the defeasance under
Section 4.02 or the covenant defeasance under Section 4.03 (as the case may be)
have been complied with as contemplated by this Section 4.04.
Opinions of Counsel required to be delivered under this Section may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of Publishing or
government or other officials customary for opinions of the type required,
which certificates shall be limited to matters of fact, including that various
financial covenants have been complied with.
SECTION 4.05. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.03, all United States dollars and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.04 in respect of the Defeased Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Series of Securities and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Series of Securities of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
Publishing shall fully pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.04 or the principal and interest received in
respect thereof, other than any such tax, fee or
73
73
other charge which by law is for the account of the Holders of the Defeased
Securities.
Anything in this Article IV to the contrary notwithstanding, the Trustee
shall deliver or pay to Publishing from time to time upon a Publishing Request
any United States dollars or U.S. Government Obligations held by it as provided
in Section 4.04 which, in the opinion of a nationally recognized firm of
independent public accountants or nationally recognized investment banking firm
expressed in a written report delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect
defeasance or covenant defeasance. In the event of an error in any calculation
resulting in a withdrawal hereunder, Publishing shall deposit an amount equal
to the amount erroneously withdrawn as promptly as practicable after becoming
aware of such error.
SECTION 4.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any United States dollars or U.S. Government Obligations in accordance
with Section 4.02 or 4.03, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then Publishing's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.02 or 4.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
United States dollars or U.S. Government Obligations in accordance with Section
4.02 or 4.03, as the case may be; provided, however, that (a) if Publishing
makes any payment to the Trustee or Paying Agent of principal, premium, if any,
or interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of
the Securities and Publishing shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the United States dollars and
U.S. Government Obligations held by the Trustee or Paying Agent and (b) the
Trustee or Paying Agent shall return all such United States dollars and U.S.
Government Obligations to Publishing promptly after receiving a Publishing
Request therefor at any time, if the Trustee or Paying Agent receives written
notice from Publishing that such reinstatement of Publishing's obligations has
occurred and continues to be in effect at such time.
74
74
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default", wherever used herein,
means with respect to any Series of Securities any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article XII or be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless such event is either inapplicable to a particular
Series or it is specifically modified in or pursuant to the supplemental
indenture or Board Resolution creating such Series of Security or in the form
of Security for such Series:
(a) there shall be a default in the payment of any interest on any Security
of that Series when it becomes due and payable, and such default shall
continue for a period of 30 days;
(b) there shall be a default in the payment of the principal of (or premium,
if any, on) any Security of that Series when and as the same shall become due
and payable at its Maturity (upon acceleration, optional or mandatory
redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or breach, of any
covenant or agreement of Publishing under this Indenture (other than a
default in the performance, or breach, of a covenant or agreement which is
specifically dealt with in Section 5.01(a) or (b) or in clauses (ii) or (iii)
of this Section 5.01(c)), and such default or breach shall continue for a
period of 30 days after written notice has been given, by certified mail, (x)
to Publishing by the Trustee or (y) to Publishing and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities; (ii) there shall be a default in the performance or breach of the
provisions of Article VIII; or (iii) Publishing shall have failed to make or
consummate a Change of Control Offer in accordance with the provisions of
Section 10.15;
75
75
(d) one or more defaults shall have occurred under any agreements,
indentures or instruments under which Publishing, any Guarantor or any
Restricted Subsidiary then has outstanding Indebtedness in excess of
$5,000,000 in the aggregate and, if not already matured at its final maturity
in accordance with its terms, such Indebtedness shall have been accelerated;
(e) any Guarantee relating to such Series shall for any reason cease to be,
or be asserted in writing by any Guarantor or Publishing not to be, in full
force and effect, enforceable in accordance with its terms, except to the
extent contemplated by the Indenture and any such Guarantee;
(f) one or more final judgments, orders or decrees for the payment of money
in excess of $5,000,000, either individually or in the aggregate, shall be
entered against Publishing, any Guarantor or any Restricted Subsidiary or any
of their respective properties and shall not be discharged and either (i)
enforcement proceedings shall have been commenced upon such judgment, order
or decree or (ii) there shall have been a period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of an
appeal or otherwise, shall not be in effect;
(g) there shall have been the entry by a court of competent jurisdiction of
(i) a decree or order for relief in respect of Publishing, any Guarantor or
any Material Restricted Subsidiary in an involuntary case or proceeding under
any applicable Bankruptcy Law or (ii) a decree or order adjudging Publishing,
any Guarantor or any Material Restricted Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in
respect of Publishing, any Guarantor or any Material Restricted Subsidiary
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
Publishing, any Guarantor or any Material Restricted Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and any such decree or order for relief shall continue to be
in effect, or any such other decree or order shall be unstayed and in effect,
for a period of 60 consecutive days;
76
76
(h) (i) Publishing, any Guarantor or any Material Restricted Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy Law
or any other case or proceeding to be adjudicated bankrupt or insolvent, (ii)
Publishing, any Guarantor or any Material Restricted Subsidiary consents to
the entry of a decree or order for relief in respect of Publishing, any
Guarantor or such Material Restricted Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (iii) Publishing, any
Guarantor or any Material Restricted Subsidiary files a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
state law, (iv) Publishing, any Guarantor or any Material Restricted
Subsidiary (x) consents to the filing of such petition or the appointment of,
or taking possession by, a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of Publishing, any Guarantor or
such Material Restricted Subsidiary or of any substantial part of its
property, (y) makes an assignment for the benefit of creditors or (z) admits
in writing its inability to pay its debts generally as they become due or (v)
Publishing, any Guarantor or any Material Restricted Subsidiary takes any
corporate action in furtherance of any such actions in this paragraph (h); or
(i) any outstanding Mirror Preferred shall cease to qualify as Mirror
Preferred under the definition thereof.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Sections 5.01(g)
and (h) with respect to Publishing) occurs and is continuing with respect to
any Series, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities hereunder (each such Series
acting as a separate class) may, and the Trustee upon the request of the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such Series shall, declare the principal amount (or, if the
Securities of such Series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that Series) of all
the Securities of such Series to be due and payable immediately in an amount
equal to the principal
77
77
amount of the Securities of such Series, together with accrued and unpaid
interest, if any, to the date the Securities of such Series shall have become
due and payable, by a notice in writing to Publishing (and to the Trustee, if
given by Holders) and, if the New Bank Credit Facility is in effect, to the
Agent, and upon any such declaration such amount shall become immediately due
and payable. If an Event of Default specified in Sections 5.01(g) or (h) (if
the Event of Default under these paragraphs is with respect to all Series of
Securities then Outstanding) occurs with respect to Publishing and is
continuing, then all the Securities shall ipso facto become and be immediately
due and payable, in an amount equal to the principal amount of the Securities
of any Series (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof),
together with accrued and unpaid interest, if any, to the date the Securities
become due and payable, without any declaration or other act on the part of the
Trustee or any Holder.
At any time after such declaration or acceleration has been made with
respect to the Securities of any or all Series, as the case may be, and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as provided hereinafter in this Article, the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of such
Series, by written notice to Publishing and the Trustee, may rescind and annul
such declaration and its consequences if:
(a) Publishing has paid or irrevocably deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under Section 6.07 and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
(ii) all overdue interest on all Securities of such Series;
(iii) the principal and the premium, if any, on any Securities of such
Series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates presented therefor by
the terms of the Securities of such Series, to the extent that payment of
such interest is lawful;
78
78
(iv) interest upon overdue interest at the rate or rates presented therefor
by the terms of the Securities of such Series, to the extent that payment of
such interest is lawful; and
(b) all Events of Default with respect to such Series of Securities, other
than the nonpayment of principal of the Securities of such Series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. Publishing covenants that if
(a) default is made in the payment of any interest on any Security of any
Series when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Stated Maturity (upon acceleration, optional or
mandatory redemption, required repurchase or otherwise) thereof,
Publishing will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate or rates as may be presented therefor by the terms of any
such Security.
If Publishing fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against Publishing or any other obligor upon the Securities of such Series and
collect the moneys adjudged or decreed to be payable in the manner
79
79
provided by law out of the property of Publishing or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to any Series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series under
this Indenture by such appropriate private or judicial proceedings as the
Trustee shall deem most effectual to protect and enforce such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein or therein, or to enforce
any other proper remedy.
The rights and remedies under this Section 5.03 are in addition to the other
rights and remedies under this Article V or Article XIV.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to Publishing or the property of Publishing, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on Publishing for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(b) subject to Article XII, to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such
80
80
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 the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.07.
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, composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities of any
Series may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such Series or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities of the
Series in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by the
Trustee with respect to a Series of Securities pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or
in lieu of any proceeding contemplated by this Article shall be applied,
subject to applicable law, in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the Securities of
such Series and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07;
81
81
SECOND: Subject to Article XII, to the payment in full of the amounts then
due and unpaid upon the Securities of that Series for principal, premium, if
any, and interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal,
premium, if any, and interest; and
THIRD: Subject to Article XII, the balance, if any, to the Person or
Persons entitled thereto as a court of competent jurisdiction shall direct, or
to Publishing; provided that all sums due and owing to the Holders and the
Trustee have been paid in full as required by this Indenture.
SECTION 5.07. Limitation on Suits. No Holder of any Securities of any
Series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to Securities of such Series;
(b) the Holders of not less than 25% in principal amount of the Outstanding
Securities of such Series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered, and if requested have provided, to
the Trustee an indemnity satisfactory to the Trustee in its sole discretion
against the costs, expenses and liabilities that may be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer (and if requested, provision) of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such Series;
82
82
it being understood and intended that no one or more Holders of Securities of
such Series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of such Series, or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner provided in this Indenture and for
the equal and ratable benefit of all the Holders of all Securities of such
Series.
SECTION 5.08. Unconditional Right of Holders To Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right on the terms stated herein, which
is absolute and unconditional, to receive payment of the principal of, premium,
if any, and (subject to Section 3.07) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder, subject to Article XII.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, (a)
Publishing, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder, and (b) thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as provided in
Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
83
83
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities of any Series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture (including, without limitation, Section 5.07) or expose the
Trustee to personal liability; and
(b) subject to the provisions of Section 315 of the Trust Indenture Act, the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
Series may on behalf of the Holders of all the Securities of such Series waive
any past Default hereunder and its consequences, except a Default
(a) in the payment of the principal of, premium, if any, or interest on any
Security of such Series, or
(b) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such Series affected by such modification or
amendment.
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
84
84
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any Series to which the suit relates, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay, Extension or Usury Laws. Publishing (to the
extent that it may lawfully do so) covenants that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other similar law
wherever enacted, now or at any time hereafter in force, which would prohibit
or forgive Publishing from paying all or any portion of the principal of,
premium, if any, or interest on the Securities contemplated herein or in the
Securities or which may affect the covenants or the performance of this
Indenture; and Publishing (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.16. Remedies Subject to Applicable Law. All rights, remedies and
powers provided by this Article may be exercised only to the extent that the
exercise thereof
85
85
does not violate any applicable provision of law in the premises, and all the
provisions of this Indenture are intended to be subject to all applicable
mandatory provisions of law which may be controlling in the premises and to be
limited to the extent necessary so that they will not render this Indenture
invalid, unenforceable or not entitled to be recorded, registered or filed
under the provisions of any applicable law.
ARTICLE VI
The Trustee
SECTION 6.01. Duties of Trustee. (a) If a Default or an Event of Default
with respect to any Series of Securities actually known to the Trustee has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. The Trustee shall not be
charged with knowledge of any Default or Event of Default with respect to any
Series of Securities, Asset Sale or Change of Control unless written notice
thereof shall have been delivered to a Responsible Officer by Publishing or any
other Person.
(b) Except during the continuance of a Default or an Event of Default with
respect to any Series of Securities actually known to the Trustee:
(1) the Trustee need perform only those duties as are specifically set forth
in this Indenture and no covenants or obligations shall be implied in this
Indenture that are adverse to the Trustee; and
(2) in the absence of bad faith or wilful misconduct on its part, the
Trustee may with respect to any Series of Securities, conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
86
86
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;
(2) 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
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction of the Holders of
a majority in principal amount of Outstanding Securities of any Series
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power confirmed
upon the Trustee under this Indenture.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any loss, expense, fees or financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or loss, expense, fees or financial liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (d) of this Section 6.01.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with Publishing. Assets held in
trust by the Trustee need not be segregated from other assets except to the
extent required by law.
SECTION 6.02. Notice of Defaults. Within 30 days after a Responsible
Officer of the Trustee receives notice of the occurrence of any Default with
respect to Securities of any Series, the Trustee shall, at Publishing's
expense, transmit by mail to all Holders of such Series or any other persons
entitled to receive reports pursuant to Trust
87
87
Indenture Act Section 313(c), as their names and addresses appear in the
Security Register, notice of such Default, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in
the payment of the principal of, premium, if any, or interest on any Security,
the Trustee shall be protected in withholding such notice if and so long as a
trust committee of Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of such
Series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Trust Indenture Act Sections 315(a) through 315(d):
(a) the Trustee may rely conclusively and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of Publishing mentioned herein shall be
sufficiently evidenced by a Publishing Request or Publishing Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) wherever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to the taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) in the absence of bad faith on
its part, may rely conclusively, upon an Officers' Certificate and/or an
Opinion of Counsel;
(d) the Trustee may consult with counsel and any written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
88
88
(e) notwithstanding any other provisions contained in this Indenture, 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 satisfactory to the Trustee in its sole
discretion against the costs, expenses and liabilities which might be
incurred therein or thereby in compliance with such request or direction;
(f) the Trustee shall not be liable for any action taken or omitted by it in
good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the negligence or wilful misconduct of the
Trustee;
(g) 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, approval,
appraisal, bond, debenture, note, coupon, security or other paper or
document; but the Trustee in its discretion may make such further inquiry or
investigation in accordance with any of the provisions of this Indenture into
such facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine such relevant books, records and premises of Publishing as may be
reasonable, personally or by agent or attorney;
(h) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder; and
(i) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights and powers.
89
89
SECTION 6.04. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of Publishing, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder
and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to Publishing are true and accurate subject
to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by Publishing of Securities or the proceeds thereof.
SECTION 6.05. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other agent of
Publishing, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Trust Indenture Act Sections 310 and 311, may otherwise deal with Publishing
and receive, collect, hold and retain collections from Publishing with the same
rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 6.06. Money Held in Trust. All moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Except for
funds or securities deposited with the Trustee pursuant to Article IV, the
Trustee shall only be required to invest moneys received by the Trustee, until
used or applied as herein provided, in Temporary Cash Investments in accordance
with the directions of Publishing.
SECTION 6.07. Compensation and Indemnification of Trustee and Its Prior
Claim. Publishing covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which, to the extent lawful, shall not be
limited by any provision of law in
90
90
regard to the compensation of a trustee of an express trust) and Publishing
covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence, bad faith or wilful misconduct. When the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(g) or Section 5.01(h), the expenses
(including the reasonable compensation and the expenses and disbursements of
its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law. Publishing also covenants to indemnify the
Trustee and each predecessor Trustee, and their respective officers, agents and
employees for, and to hold them harmless against, any claim, loss, liability,
tax, assessment or other governmental charge (other than taxes applicable to
the Trustee's compensation hereunder) or expense incurred without negligence,
bad faith or wilful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including enforcement of this Section 6.07 and also
including any liability which the Trustee may incur as a result of failure to
withhold, pay or report any tax, assessment or other governmental charge, and
the costs and expenses of defending itself against or investigating any claim
of liability in the premises. The obligations of Publishing under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee and each predecessor Trustee. As
security for the performance of the obligations of Publishing under this
Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of Holders of particular Securities.
91
91
SECTION 6.08. Conflicting Interests. The Trustee shall comply with the
provisions of Section 310(b) of the Trust Indenture Act. In determining
whether the Trustee has a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to the Securities of any Series, there
shall be excluded this Indenture with respect to Securities of any particular
Series of Securities other than that Series. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under
the Trust Indenture Act Section 310(a)(1) and which shall have a combined
capital and surplus of at least $100,000,000, and have a Corporate Trust Office
in The City of New York to the extent there is such an institution eligible and
willing to serve. If the Trustee does not have an office in the City of New
York, the Trustee shall appoint an agent in the City of New York reasonably
acceptable to Publishing to conduct any activities which the Trustee is
required under this Indenture to conduct in the City of New York. The Trustee
may not rescind any such agency without the consent of Publishing, which
consent may not be unreasonably withheld, unless the Trustee appoints a
satisfactory replacement or has a Corporate Trust Office in the City of New
York. If such corporation publishes reports of conditions at least annually,
pursuant to law or to the requirements of Federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of conditions so published. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
92
92
(b) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to any Series of Securities by giving written notice
thereof to Publishing. Upon receiving such notice of resignation, Publishing
shall use its best efforts to promptly appoint a successor Trustee by Board
Resolution or written instrument executed by authority of the Board of
Directors of Publishing, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor Trustee. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may, or
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper,
appoint a successor Trustee.
(c) The Trustee may be removed with respect to any Series of Securities at
any time by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of that Series, delivered to the
Trustee and to Publishing.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust Indenture
Act Section 310(b) with respect to any Series of Securities after written
request therefor by Publishing or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with respect
to any Series of Securities and shall fail to resign after written request
therefor by Publishing or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any Series
of Securities or shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
93
93
then, in any case, (i) Publishing by a Board Resolution may remove the Trustee,
with respect to any Series of Securities or in the case of bankruptcy or
insolvency or receivership pursuant to clause (3) above, with respect to all
Series, or (ii) subject to Section 5.14, any Holder of any Security who has
been a bona fide Holder of a Security of such Series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee with respect to the Series, or in the case of bankruptcy or
insolvency or receivership pursuant to clause (3) above, with respect to all
Series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any Series of Securities, or if a vacancy shall occur in the
office of Trustee with respect to any Series for any cause, Publishing, by a
Board Resolution or written instrument executed by authority of the Board of
Directors of Publishing, shall use its best efforts to promptly appoint a
successor Trustee for that Series of Securities and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy,
Publishing or a court of competent jurisdiction has not appointed a successor
Trustee, a successor Trustee with respect to such Series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such Series delivered to Publishing and the retiring
Trustee, and the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
such Series of Securities and supersede the successor Trustee appointed by
Publishing with respect to such Series of Securities. If no successor Trustee
shall have been so appointed by Publishing or the Holders of such Series of
Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a Security of that
Series for at least six months may, subject to Section 5.14, on behalf of
himself and all other similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
Series.
94
94
(f) Publishing shall give notice of each resignation and each removal of
the Trustee with respect to any Series and each appointment of a successor
Trustee with respect to any Series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities of that Series
as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office or agent hereunder.
SECTION 6.11. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to the Securities,
every such successor Trustee so appointed shall execute, acknowledge and
deliver to Publishing and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee under this Indenture with respect to any such
Series; but, nevertheless, on the written request of Publishing or the
successor Trustee, upon payment of its charges then unpaid, such retiring
Trustee shall pay over to the successor Trustee all moneys at the time held by
it hereunder with respect to any such Series and shall execute and deliver an
instrument transferring to such successor Trustee all such rights, powers,
duties and obligations.
Upon request of any such successor Trustee, Publishing shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such Trustee or such successor Trustee to secure any amounts then
due such Trustee pursuant to the provisions of Section 6.07.
No successor Trustee with respect to the Securities shall accept appointment
as provided in this Section 6.11 unless at the time of such acceptance such
successor Trustee shall be eligible to act as Trustee under the provisions of
Trust Indenture Act Section 310(a) and this Article VI and shall have a
combined capital and surplus of at least $100,000,000 and have a Corporate
Trust Office or an agent selected in accordance with Section 6.09 in the City
of New York.
95
95
Upon acceptance of appointment by any successor Trustee as provided in this
Section 6.11, Publishing shall give notice thereof to the Holders of the
Securities of such Series, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If Publishing fails to give such notice within 10
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be given at the expense of Publishing.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided such corporation shall be eligible under
Trust Indenture Act Section 310(a) and this Article VI and shall have a
combined capital and surplus of at least $100,000,000.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, amalgamation, conversion or consolidation.
96
96
SECTION 6.13. Preferential Collection of Claims Against Publishing. If and
when the Trustee shall be or become a creditor of Publishing, the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against Publishing.
ARTICLE VII
Holders' Lists and Reports by Trustee and Publishing
SECTION 7.01. Publishing To Furnish Trustee Names and Addresses of Holders.
Publishing will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 10 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each Series as of such Regular
Record Date; and
(b) at such other times as the Trustee may reasonably request in writing,
within 30 days after receipt by Publishing of any such request, a list of
similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a Series, no such list need be furnished with
respect to such Series of Securities.
SECTION 7.02. Disclosure of Names and Addresses of Holders. Every Holder
of Securities of any Series, by receiving and holding the same, agrees with
Publishing and the Trustee that neither Publishing nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable or
liable by reason of mailing any material pursuant to a request made under Trust
Indenture Act Section 312.
SECTION 7.03. Reports by Trustee. (a) Within 60 days after May 15 of each
year commencing with the first
97
97
May 15 after the issuance of Securities of any Series, the Trustee shall
transmit by mail, at Publishing's expense, to all Holders, as their names and
addresses appear in the Security Register, as provided in Trust Indenture Act
Section 313(c), a brief report dated as of such May 15 in accordance with and
with respect to the matters required by Trust Indenture Act Section 313(a).
(b) The Trustee shall promptly transmit to Publishing a copy of any report
it transmits to Holders of such Series pursuant to this Section 7.03.
SECTION 7.04. Reports by Publishing. Publishing shall do the following:
(a) file with the Trustee, in accordance with Section 10.18 hereof, and in
any event within 30 days after Publishing is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
Publishing is required to file with the Commission separately or together with
Xxxxxxxxx International pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if Publishing is not required to file information, documents or
reports pursuant to either of said Sections, then it shall (i) deliver to the
Trustee annual audited financial statements of Publishing and its Restricted
Subsidiaries, prepared on a Consolidated basis in conformity with GAAP, within
120 days after the end of each fiscal year of Publishing, and (ii) file with
the Trustee and the Commission, in accordance with, and so long as not
prohibited by, the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by Publishing
with the conditions and covenants of this Indenture as is required from time to
time by such rules and regulations (including such rules and regulations, if
any, referred to in Trust Indenture Act Section 314(a)); and
98
98
(c) transmit by mail to all Holders or any other persons entitled to receive
a report pursuant to Trust Indenture Act Section 313(c), within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided
in Trust Indenture Act Section 313(c), such summaries of any information,
documents and reports required to be filed by Publishing pursuant to Section
10.18 hereunder and subsections (a) and (b) of this Section as is required and
not prohibited by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
Consolidation, Merger, Sale of Assets
SECTION 8.01. Publishing May Merge, Consolidate, etc., Only on Certain
Terms. (a) Publishing shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into any other Person
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its Restricted Subsidiaries to enter into
any such transaction or transactions (other than, in the case of a Restricted
Subsidiary, such a consolidation, merger or transfer with or to one or more
Wholly Owned Restricted Subsidiaries) if such transaction or transactions, in
the aggregate, would result in a sale, assignment, conveyance, transfer, lease
or disposition of all or substantially all of the properties and assets of
Publishing and its Restricted Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, unless at the time and after giving
effect thereto:
(i) either (a) Publishing shall be the continuing corporation, or (b) the
Person (if other than Publishing) formed by such consolidation or into which
Publishing is merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition all or substantially all of the
properties and assets of Publishing and its Restricted Subsidiaries on a
Consolidated basis (the "Surviving Entity") shall be a corporation duly
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture hereto, executed and delivered to the
Trustee, in form
99
99
and substance reasonably satisfactory to the Trustee, all the obligations of
Publishing under the Securities and this Indenture, and this Indenture shall
remain in full force and effect;
(ii) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing;
(iii) immediately after giving effect to the transaction on a pro forma
basis, the Consolidated Net Worth of the Surviving Entity is not less than
the Consolidated Net Worth of Publishing and the Restricted Subsidiaries
immediately prior to the transaction;
(iv) immediately before and immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period immediately prior to the
consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma calculation),
Publishing (or the Surviving Entity if Publishing is not the continuing
obligor under this Indenture) could Incur $1.00 of additional Indebtedness
under the provisions of Section 10.08 (other than Permitted Indebtedness);
(v) if any of the property or assets of Publishing or any of its Restricted
Subsidiaries would thereupon become subject to any Lien, the provisions of
Section 10.13 are complied with; and
(vi) Publishing or the Surviving Entity shall have delivered, or caused to
be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each to
the effect that such consolidation, merger, transfer, sale, assignment, lease
or other transaction and the supplemental indenture in respect thereof comply
with the provisions described in this . Section 8.01(a) and that all
conditions precedent herein provided for in this Section 8.01(a) relating to
such transaction have been complied with.
(b) Neither Xxxxxxxxx International nor any Restricted Subsidiary Guarantor
shall, and Publishing shall
100
100
not permit a Restricted Subsidiary Guarantor to, in a single transaction or
series of related transactions, consolidate with or merge with or into any
other Person (other than Publishing, Xxxxxxxxx International or any other
Restricted Subsidiary Guarantor), or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets on a
Consolidated basis to any Person (other than Publishing, Xxxxxxxxx
International or any other Restricted Subsidiary Guarantor) if such transaction
or transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of such Guarantor to any other Person or group of
affiliated Persons, unless at the time and after giving effect thereto:
(i) either (a) Xxxxxxxxx International or such Restricted Subsidiary
Guarantor shall be the continuing corporation or (b) the Person (if other than
Xxxxxxxxx International or such Restricted Subsidiary Guarantor) formed by such
consolidation or into which Xxxxxxxxx International or such Restricted
Subsidiary Guarantor, as the case may be, is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of Xxxxxxxxx International or
such Restricted Subsidiary Guarantor shall be a corporation duly organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall (except where Xxxxxxxxx
International or such Restricted Subsidiary Guarantor is the continuing
corporation) expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form and substance reasonably satisfactory to the
Trustee, all the obligations of Xxxxxxxxx International or such Restricted
Subsidiary Guarantor, as the case may be, under the Securities and this
Indenture, and this Indenture shall remain in full force and effect;
(ii) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing; and
(iii) Xxxxxxxxx International or such Restricted Subsidiary Guarantor, as
the case may be, shall have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
101
101
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
transaction and the supplemental indenture in respect thereof comply with the
provisions described in this Section 8.01(b), and that all conditions precedent
herein provided for in this Section 8.01(a) relating to such transactions have
been complied with.
(c) Notwithstanding anything in this Article Eight to the contrary, any
Guarantee by a Restricted Subsidiary of the Securities may be released in
accordance with the provisions of Section 10.14(c).
SECTION 8.02. Successor Substituted. Upon any consolidation or merger, or
any sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets on a Consolidated basis of
Publishing, Xxxxxxxxx International or any Restricted Subsidiary Guarantor in
accordance with Section 8.01 with respect to which Publishing, Xxxxxxxxx
International or such Restricted Subsidiary Guarantor is not the continuing
corporation, the successor Person formed by such consolidation or into which
Publishing, Xxxxxxxxx International or such Restricted Subsidiary Guarantor is
merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, Publishing, Xxxxxxxxx
International or such Restricted Subsidiary Guarantor, as the case may be,
under this Indenture, with the same effect as if such successor had been named
as Publishing, Xxxxxxxxx International or such Restricted Subsidiary Guarantor,
as the case may be, herein. When a successor assumes all the obligations and
covenants of its predecessor under this Indenture or the Securities, the
predecessor shall be released from those obligations and covenants; provided
that, in the case of a transfer by lease, the predecessor shall not be released
from the payment of principal and interest on the Securities or, in the case of
Xxxxxxxxx International or a Restricted Subsidiary Guarantor, such Guarantee,
as the case may be.
Any successor to Publishing described in the foregoing paragraph may cause
to be signed, and may issue either in its own name or in the name of
Publishing, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by Publishing and delivered to
102
102
the Trustee; and, upon the order of such successor, instead of Publishing, and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of
Publishing to the Trustee for authentication, and any Securities which such
successor thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution of this
Indenture.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures and Agreements Without Consent of
Holders. Without the consent of any Holders of the Securities of any Series,
Publishing, each Guarantor and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form and
substance reasonably satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to Publishing or any
Guarantor, and the assumption by any such successor of the covenants of
Publishing or such Guarantor, as the case may be, herein and in the
Securities of any Series;
(b) to add to the covenants of Publishing or the Guarantors for the benefit
of the Holders of the Securities of any or all Series (and if such covenants
or the surrender of such right or power are to be for the benefit of less
than all Series of Securities, stating that such covenants are expressly
being included or such surrenders are expressly being made solely for the
benefit of one or more specified Series), or to surrender any right or power
conferred upon Publishing or the Guarantors in this Indenture or the
Securities of any Series;
(c) to cure any ambiguity or to correct or supplement any provision in this
Indenture or the
103
103
Securities of any Series which may be defective or inconsistent with any other
provision in this Indenture or the Securities;
(d) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act,
as contemplated by Section 9.05 or otherwise;
(e) to add a Guarantee of the Indenture Obligations;
(f) to evidence and provide the acceptance of the appointment of a successor
Trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security interest in favor
of the Trustee for the benefit of the Holders as additional security,
pursuant to the requirements of Section 10.13 or otherwise, for the payment
and performance of the Indenture Obligations, in any property or assets,
including any which are required to be mortgaged, pledged or hypothecated, or
in which a security interest is required to be granted, to the Trustee
pursuant to this Indenture or otherwise;
(h) to clarify or make any other provisions with respect to matters or
questions arising under this Indenture or the Securities; provided that, in
each case, such clarification or provision thus made shall not adversely
affect the interests of the Holders; and
(i) to establish any form of Security, as provided in Article Two, and to
provide for the issuance of any Series of Securities as provided in Article
Three and to set forth the terms thereof, and/or to add to the rights of the
Holders of the Securities of any Series.
SECTION 9.02. Supplemental Indentures and Agreements with Consent of
Holders. Except as permitted by Section 9.01, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities of each Series affected by such supplemental indenture or
indentures, by Act of said Holders delivered to Publishing and the Trustee,
Publishing and each Guarantor (if a party thereto) and the Trustee may (i)
enter into an indenture or indentures supplemental hereto, in form
104
104
and substance reasonably satisfactory to the Trustee, for the purpose of adding
any provisions to or amending, modifying or changing in any manner or
eliminating any of the provisions of this Indenture or the Securities of each
such Series (including, but not limited to, for the purpose of modifying in any
manner the rights of the Holders of the Securities of each such Series under
this Indenture) or (ii) waive compliance with any provision in this Indenture
or the Securities of each such Series (other than waivers of past Defaults
covered by Section 5.13 and waivers of covenants which are covered by Section
10.20); provided, however, that no such supplemental indenture, agreement or
instrument shall, without the consent of the Holder of each Outstanding
Securities of any Series affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
interest on, any Security of any Series or waive a default in the payment of
the principal or interest on any Security of any Series or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the coin or currency in which
the principal of any Security of any Series or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment after the Stated Maturity thereof;
(b) amend, change or modify the obligation of Publishing to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 10.15, including amending, changing or modifying any
of the provisions or definitions with respect thereto;
(c) reduce the percentage in principal amount of the Outstanding Securities
of any Series, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences provided for in this Indenture;
(d) modify any of the provisions of this Section or Sections 5.13 or 10.20,
except to increase the percentage of Outstanding Securities of any Series
required for such actions or to provide that certain other provisions of this
Indenture cannot be modified
105
105
or waived without the consent of the Holder of each Security affected
thereby;
(e) except as otherwise permitted under Article VIII, consent to the
assignment or transfer by Publishing or any Guarantor of any of its rights
and obligations under this Indenture; or
(f) amend or modify any of the provisions of this Indenture relating to the
subordination of the Securities of any Series or any Guarantee in any manner
adverse to the holders of the Securities of such Series.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of the Holders of Securities of such Series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
Upon the written request of Publishing, accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with Publishing in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture or
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.03. Execution of Supplemental Indentures and Agreements. In
executing, or accepting the additional trusts created by, any supplemental
indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Trust Indenture Act Section
315(a) through 315(d) and Section 6.03 hereof) shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate to the effect
that the execution of such supplemental indenture, agreement or instrument is
authorized or permitted by this Indenture. The Trustee may,
106
106
but shall not be obligated to, enter into any such supplemental indenture,
agreement or instrument which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If Publishing shall so determine,
new Securities modified so as to conform to any such supplemental indenture, in
the opinion of the Trustee and the Board of Directors, may be prepared and
executed by Publishing and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 9.07. Record Date. If Publishing shall solicit from the Holders of
any Series of Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, Publishing may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders of such Series
entitled to consent to any supplemental indenture, agreement or instrument or
any waiver, and shall promptly notify the Trustee of any such record date. If
a record date is fixed, those Persons who were Holders of such Series at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to consent to such supplemental indenture, agreement or instrument
or waiver or to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. The record date shall
be a date no more than 30 days prior to the first solicitation of
107
107
Holders generally in connection therewith and no later than the date such
solicitation is completed. No such consent shall be valid or effective for
more than six months after such record date. Subject to applicable law, until
any supplemental indenture, agreement, instrument or waiver becomes effective,
or a consent to it by a Holder of a Security of such Series shall cease to be
valid and effective as set forth in the preceding sentence, such consent is a
continuing consent by the Holder and every subsequent Holder of a Security of
such Series or portion of a Security of such Series that evidences the same
debt as the consenting Holder's Security.
SECTION 9.08. Effect on Senior Indebtedness. No supplemental indenture
shall adversely affect the rights under Article XII, or any definitions or
provisions related thereto, or the guarantees of any holder of Senior
Indebtedness unless the requisite holders of each issue of Senior Indebtedness
affected thereby shall have consented to such supplemental indenture.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest. With respect to
each Series of Securities, Publishing will duly and punctually pay the
principal of, premium, if any, and interest on such Securities in accordance
with the terms of such Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. Publishing will maintain
in The City of New York an office or agency where Securities may be presented
or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
Publishing in respect of the Securities and this Indenture may be served. The
office of the Trustee at 00 Xxxx Xxxxxx, Xxxxxx #0, Xxx Xxxx, Xxx Xxxx 00000,
shall be such office or agency of Publishing, unless Publishing shall designate
and maintain some other office or agency for one or more of such purposes.
Publishing will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time Publishing shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the
108
108
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office, and Publishing hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Publishing may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to
time rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve Publishing of its obligation to maintain
an office or agency in The City of New York for such purposes. Publishing will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
SECTION 10.03. Money for Security Payments To Be Held in Trust. Publishing
will, on or before Noon, New York time, on each due date of the principal of,
premium, if any, or interest on, Securities with respect to each Series of
Securities, deposit with a Paying Agent (which shall not be Publishing) a sum
in same-day funds sufficient to pay the principal, premium, if any, or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) Publishing will promptly notify the Trustee of such action or
any failure so to act.
Publishing will cause each Paying Agent other than the Trustee for any
Series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of, premium,
if any, or interest on Securities of such Series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by Publishing (or any other
obligor upon the Securities of such Series) in the making of any payment of
principal, premium, if any, or interest on the Securities of such Series;
109
109
(c) at any time during the continuance of any such Default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
Publishing may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any Series of Securities or for
any other purpose, by Publishing Order direct any Paying Agent to pay to the
Trustee all sums held in trust by such Paying Agent in respect of each and
every Series of Securities as to which it seeks to discharge this Indenture or,
if for any other purpose, all sums so held in trust by Publishing in respect of
all Securities, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust for the
payment of the principal of, premium, if any, or interest on any Security of
any Series and remaining unclaimed for two years after such principal and
premium, if any, or interest has become due and payable shall promptly be paid
to Publishing upon Publishing Request; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to Publishing for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of Publishing as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to Publishing, may
at the expense of Publishing cause to be published once, in The New York Times
and The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will promptly be repaid to Publishing.
SECTION 10.04. Corporate Existence. Subject to Article VIII, Publishing
will do or cause to be done all
110
110
things necessary to preserve and keep in full force and effect its corporate
existence and related rights and franchises (charter and statutory) of
Publishing and each Restricted Subsidiary; provided, however, that Publishing
shall not be required to preserve any such right or franchise or the corporate
existence of any such Restricted Subsidiary if the Board of Directors of
Publishing shall determine that the preservation thereof is no longer desirable
in the conduct of the business of Publishing and its Restricted Subsidiaries as
a whole and that the loss thereof would not reasonably be expected to have a
material adverse effect on the ability of Publishing to perform its obligations
hereunder; and provided further, however, that the foregoing shall not prohibit
a sale, transfer or conveyance of a Restricted Subsidiary or any of its assets
in compliance with the terms of this Indenture.
SECTION 10.05. Payment of Taxes and Other Claims. Publishing will pay or
discharge or cause to be paid or discharged, on or before the date the same
shall become due and payable, (a) all material taxes, assessments and
governmental charges levied or imposed upon Publishing or any Restricted
Subsidiary shown to be due on any tax return of Publishing or any Restricted
Subsidiary or otherwise assessed or upon the income, profits or property of
Publishing or any Restricted Subsidiary and (b) all material lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien
upon the property of Publishing or any Restricted Subsidiary, except for any
Lien permitted to be Incurred under Section 10.13; provided, however, that
Publishing shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and in respect of
which appropriate reserves (in the good-faith judgment of management of
Publishing) are being maintained in accordance with GAAP consistently applied.
SECTION 10.06. Maintenance of Properties. Publishing will cause all
material properties owned by Publishing or any Restricted Subsidiary or used or
held for use in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as
111
111
in the judgment of Publishing may be consistent with sound business practice
and reasonably necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 10.06 shall prevent Publishing from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of Publishing, desirable in the conduct of the business of
Publishing and its Restricted Subsidiaries and not reasonably expected to have
a material adverse effect on the ability of Publishing to perform its
obligations hereunder.
SECTION 10.07. Insurance. Publishing will at all times keep all of its and
its Restricted Subsidiaries' properties which are of an insurable nature
reasonably self-insured or insured with insurers, believed by Publishing to be
responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties in the same general geographic areas in which Publishing and
its Restricted Subsidiaries operate, except where the failure to do so would
not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or prospects of Publishing
and its Restricted Subsidiaries, taken as a whole.
SECTION 10.08. Limitation on Indebtedness. (a) Publishing will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including any Acquired Indebtedness but excluding any Permitted Indebtedness)
except for (x) Indebtedness of Publishing or (y) Indebtedness of a Restricted
Subsidiary constituting Acquired Indebtedness, Permitted Subsidiary
Indebtedness or Foreign Subsidiary Indebtedness, provided that, in the case of
the foregoing clauses (x) and (y), the Consolidated Cash Flow Ratio for
Publishing and the Restricted Subsidiaries for the four full fiscal quarters
immediately preceding the Incurrence of such Indebtedness taken as one period
is greater than 6.0:1.0. In addition (and without limiting the foregoing
requirement), unless both of The Telegraph and Southam are Restricted
Subsidiaries, Publishing shall not permit any Restricted Subsidiary to Incur
any Indebtedness other than Acquired Indebtedness or Permitted Subsidiary
Indebtedness. For purposes of determining the Consolidated Cash Flow Ratio for
any period, pro forma effect shall be given to (i) the Incurrence of such
Indebtedness and (if applicable) the
112
112
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was Incurred, and the application of such
proceeds occurred, at the beginning of such four-quarter period; (ii) the
Incurrence, repayment or retirement of any other Indebtedness by Publishing and
its Restricted Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was Incurred, repaid or retired at the beginning of such
four-quarter period; (iii) in the case of Acquired Indebtedness, the related
acquisition (as if such acquisition had been consummated on the first day of
such four-quarter period); and (iv) any acquisition or disposition by
Publishing and its Restricted Subsidiaries of any company or any business or
any assets out of the ordinary course of business, whether by merger, stock
purchase or sale or asset purchase or sale or any related repayment of
Indebtedness, in each case since the first day of such four-quarter period (as
if such acquisition or disposition had been consummated on the first day of
such four-quarter period).
(b) Prior to September 1, 1997, neither Publishing nor any Restricted
Subsidiary will issue any Public Debt unless the aggregate principal amount (or
initial proceeds in the case of Public Debt sold with "original issue discount"
(within the meaning of Section 1273(a) of the Internal Revenue Code of 1986, as
amended)) of Public Debt so issued since the date of this Indenture that is
Senior Indebtedness does not exceed the aggregate principal amount (or initial
proceeds in the case of Public Debt sold with "original issue discount") of
Public Debt so issued since the date of this Indenture that is pari passu with
or subordinated to the Securities.
SECTION 10.09. Limitation on Restricted Payments. (a) Publishing will
not, and will not permit any Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any other distribution or payment on
or in respect of Publishing's Capital Stock (including dividends or
distributions of the Capital Stock of any Subsidiary), or make any other
payment to the direct or indirect holders (in their capacities as such) of
Publishing's Capital Stock (other than dividends or distributions payable in
shares of Publishing's Qualified Capital
113
113
Stock or in options, warrants or other rights to acquire such Qualified
Capital Stock) and (y) a dividend or distribution of up to $175 million
payable to Xxxxxxxxx International; provided that, simultaneously or in
connection with such dividend or distribution, Xxxxxxxxx International
contributes or transfers, directly or indirectly, to Publishing all of the
Capital Stock of Xxxxxxxxx Eastern then held by Xxxxxxxxx International; and
provided further, that Xxxxxxxxx Eastern then holds not less than 42% of the
voting interest of Southam);
(ii) purchase, redeem or otherwise acquire or retire for value, directly or
indirectly, any Capital Stock of Publishing or any Capital Stock of any
Affiliate of Publishing (other than Capital Stock of any Wholly Owned
Restricted Subsidiary (or, provided that both of The Telegraph and Southam
are Restricted Subsidiaries, Capital Stock of a Restricted Subsidiary) or
Capital Stock of a Person that is, or immediately following such repurchase
will become, a Wholly Owned Restricted Subsidiary (or, provided that both of
The Telegraph and Southam are Restricted Subsidiaries, a Restricted
Subsidiary)) or options, warrants or other rights to acquire such Capital
Stock;
(iii) make any principal payment on, or repurchase, redeem, defease, retire
or otherwise acquire for value, prior to any scheduled principal payment,
sinking fund payment or maturity, any Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on any Capital Stock of any
Restricted Subsidiary to any Person (other than (x) dividends and
distributions on Preferred Stock of Restricted Subsidiaries or Mirror
Preferred or (y) dividends and distributions made to any Person (other than a
controlling Affiliate of Publishing or an Affiliate of such Affiliate (other
than Publishing and any Restricted Subsidiary)) on a pro rata basis
consistent with the ownership interests in such Capital Stock to the owners
of such Capital Stock, except that, in the case of the Capital Stock of a
Restricted Subsidiary that is a Guarantor, (i) no Default or Event of Default
shall have occurred and be continuing; and (ii) no holders of any other
Indebtedness of Publishing or any Restricted Subsidiary shall have an
Acceleration Right);
114
114
(v) Incur, create or assume any guarantee of Indebtedness of any Affiliate
of Publishing (other than a Wholly Owned Restricted Subsidiary of Publishing
or, provided that both of The Telegraph and Southam are Restricted
Subsidiaries, a Restricted Subsidiary of Publishing) except as permitted by
Section 10.14;
(vi) make any Investment in any Person (other than any Permitted
Investments); or
(vii) designate any Restricted Subsidiary as an Unrestricted Subsidiary;
(any of the payments described in paragraphs (i) through (vii) above, other
than any such action that is a Permitted Payment (as defined below),
collectively, "Restricted Payments") unless at the time of and after giving
effect to the proposed Restricted Payment (the amount of any such Restricted
Payment, if other than cash, as determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board Resolution), (1) no
Default or Event of Default shall have occurred and be continuing; (2) no
holders of any other Indebtedness of Publishing or any Restricted Subsidiary
shall have an Acceleration Right; (3) immediately before and immediately after
giving effect to such transaction on a pro forma basis, Publishing could Incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under the
provisions of Section 10.08; and (4) the aggregate amount of all such
Restricted Payments declared or made after the date of this Indenture (provided
that, in the case of a Restricted Payment by a Restricted Subsidiary, such
Restricted Payment is calculated for the purposes of this paragraph (4) by
multiplying the amount of the Restricted Payment by the percentage of
Publishing common equity in such Restricted Subsidiary at the time of such
Restricted Payment but disregarding, in the case of Southam, common equity
interests which are pledged to secure the Southam-Linked Debentures) does not
exceed the sum of:
(A) 50% of the sum of (i) the aggregate cumulative Consolidated Net Income
of Publishing and its Restricted Subsidiaries accrued during the period
(treated as a single accounting period) beginning on the first day of
Publishing's fiscal quarter commencing prior to the date of this Indenture
and ending on the last day of Publishing's last fiscal quarter ending prior
to the date of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall
115
115
be a loss, 100% of such loss (treating a loss as a negative number)) and (ii)
the aggregate cumulative Amortization Expense of Publishing and its
Restricted Subsidiaries accrued during the period (treated as a single
accounting period) beginning on the first day of Publishing's fiscal quarter
commencing prior to the date of this Indenture and ending on the last day of
Publishing's last fiscal quarter ending prior to the date of the Restricted
Payment;
(B) 50% of the aggregate cumulative cash dividends or distributions received
by Publishing and its Consolidated Restricted Subsidiaries from any of
Publishing's Unrestricted Subsidiaries during the period (treated as a single
accounting period) beginning on the first day of Publishing's fiscal quarter
commencing prior to the date of this Indenture and ending on the last day of
Publishing's last fiscal quarter ending prior to the date of the Restricted
Payment; provided, however, that for purposes of this clause (B), cash
dividends and distributions shall not include, without duplication, (x),
prior to the time that Southam shall be a Restricted Subsidiary, cash
dividends received by Publishing from Publishing's Unrestricted Subsidiaries
not in excess of the Southam Dividend Amount, (y) cash dividends or
distributions received by Publishing or any Wholly Owned Restricted
Subsidiary in accordance with Section 10.09(b)(vii) or (z) dividends or
distributions on any Argsub Preferred received by FDTH or DTH;
(C) the aggregate Net Cash Proceeds received after the date of the original
issuance of the Securities by Publishing from the issuance or sale (other
than to any of its Restricted Subsidiaries) of its Qualified Capital Stock or
any options, warrants or rights to purchase such Qualified Capital Stock
(except, in each case, to the extent such proceeds are used to purchase,
redeem or otherwise retire Capital Stock, Subordinated Indebtedness or Pari
Passu Indebtedness as set forth below);
(D) the aggregate Net Cash Proceeds received after the date of the original
issuance of the Securities by Publishing (other than from any of its
Restricted Subsidiaries) upon the exercise of any options or warrants to
purchase Qualified Capital Stock of Publishing;
116
116
(E) the aggregate Net Cash Proceeds received after the date of this
Indenture by Publishing (other than from any of its Subsidiaries) from cash
capital contributions made to Publishing (other than from the proceeds of the
Common Stock Offering);
(F) the aggregate amount by which any Indebtedness (other than Permitted
Indebtedness) of Publishing or any Restricted Subsidiary is reduced after the
date of this Indenture as a result of the conversion or exchange of debt
securities or Redeemable Capital Stock of Publishing that has been converted
into or exchanged for Qualified Capital Stock of Publishing to the extent
such debt securities or Redeemable Capital Stock were originally sold for
cash plus the aggregate Net Cash Proceeds received by Publishing at the time
of any such conversion or exchange; and
(G) $25,000,000.
(b) Notwithstanding the foregoing, and, in the case of clauses (ii) through
(x) below, so long as (1) there is no Default or Event of Default continuing
and (2) no holders of any other Indebtedness of Publishing or any Restricted
Subsidiary have an Acceleration Right, the foregoing provisions will not
prohibit the following actions (clauses (i) through (x) being referred to as
"Permitted Payments"):
(i) the payment of any dividend or distribution within 60 days after the
date of declaration thereof, if at such date of declaration such payment
would be permitted by the provisions of paragraph (a) of this section and
such payment will be deemed to have been paid on such date of declaration for
purposes of the calculation required by paragraph (a) of this section;
(ii) the repurchase, redemption or other acquisition or retirement of any
shares of Capital Stock of Publishing in exchange for (including any such
exchange pursuant to the exercise of a conversion right or privilege in
connection with which cash is paid in lieu of the issuance of fractional
shares or scrip), or out of the Net Cash Proceeds of a substantially
concurrent issue and sale for cash (other than to a Restricted Subsidiary) of
other Qualified Capital Stock of Publishing; provided that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock
117
117
are excluded from clauses (4)(D) and (4)(E) of paragraph (a) of this section;
(iii) any repurchase, redemption, defeasance, retirement or acquisition for
value or payment of principal of any Subordinated Indebtedness in exchange
for, or out of the net proceeds of, a substantially concurrent issuance and
sale for cash (other than to any Restricted Subsidiary of Publishing) of any
Qualified Capital Stock of Publishing; provided that the Net Cash Proceeds
from the issuance of such Qualified Capital Stock are excluded from clauses
(4)(D) and (4)(E) of paragraph (a) of this section;
(iv) the repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) or Pari Passu Indebtedness
(a "refinancing") through the issuance of new Subordinated Indebtedness of
Publishing; provided that any such new Subordinated Indebtedness (1) shall be
in a principal amount that does not exceed the principal amount so refinanced
(or, if the Subordinated Indebtedness so refinanced provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration or acceleration thereof, then such lesser amount as of the date
of determination), plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of such refinanced
Indebtedness and any reasonable out-of-pocket expenses of Publishing incurred
in connection with such refinancing; (2) has an Average Life to Stated
Maturity greater than the remaining Average Life to Stated Maturity of the
Securities; (3) has a Stated Maturity for its final scheduled principal
payment later than the Stated Maturity for the final scheduled principal
payment of the Securities; and (4) is expressly subordinated in right of
payment to the Securities at least to the same extent as the Indebtedness to
be refinanced;
(v) dividends paid to Xxxxxxxxx International after the date of original
issuance of the Securities to the extent not in excess of the Southam
Dividend Amount;
118
118
(vi) loans, advances, dividends or distributions by any Restricted
Subsidiary to Publishing or any Wholly Owned Restricted Subsidiary and by
FDTH or, to the extent it has received such funds directly or indirectly from
FDTH, DTH or Publishing to Xxxxxxxxx International for the purpose of
redeeming shares of Series A Preferred Stock not exceeding in the aggregate
any payments made by Xxxxxxxxx Inc. to FDTH pursuant to the provisions of the
HTH/FDTH Share Exchange Agreement;
(vii) loans, advances, dividends or distributions to Xxxxxxxxx
International in amounts not to exceed $1 million per year to permit
Xxxxxxxxx International to repurchase, redeem or otherwise acquire or retire
any shares of its Capital Stock from employees, former employees or their
estates upon disability, death, retirement or termination of employment;
(viii) tax payments pursuant to a Tax Sharing Agreement to the extent that
the aggregate amount of such payments do not exceed the aggregate amount of
the tax payments that Publishing and the Restricted Subsidiaries would have
been required to make if they alone constituted a single consolidated tax
group;
(ix) payments by Publishing or a Restricted Subsidiary in connection with the
Scheme of Arrangement; and
(x) the issuance or redemption of or payment of distributions on Mirror
Preferred, but only to the extent Argsub Preferred is simultaneously issued,
redeemed or pays (or is deemed to pay) dividends, respectively, and only so
long as no cash is transferred in any such transaction, except for cash
payments in respect of certain Mirror Preferred made directly from FDTH to
DTH at the direction of Argsub.
For purposes of this Section 10.09, if the Board of Directors designates a
Restricted Subsidiary as an
119
119
Unrestricted Subsidiary, or a Restricted Subsidiary is deemed to be so
designated, a "Restricted Payment" shall be deemed to have been made in an
amount equal to the fair value of the Investment of Publishing and its other
Restricted Subsidiaries in such Restricted Subsidiary as determined by the
Board of Directors with the concurrence of a majority of the Independent
Directors (there being at least one Independent Director), whose good faith
determination shall be conclusive. If a particular Restricted Payment involves
a non-cash payment, including a distribution of assets, then such Restricted
Payment shall be deemed to be in an amount equal to the fair market value of
the non-cash portion of such Restricted Payment as determined by the Board of
Directors, whose good faith determination shall be conclusive.
SECTION 10.10. Limitation on Transactions with Affiliates. (a) Publishing
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or suffer to exist any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of
Publishing (other than Publishing or a Wholly Owned Restricted Subsidiary, or,
if both of The Telegraph and Southam are Restricted Subsidiaries, a Restricted
Subsidiary) unless (a) such transaction or series of related transactions is on
terms that are no less favorable to Publishing or such Restricted Subsidiary,
as the case may be, than would be available in a comparable transaction in
arm's-length dealings with an unrelated third party and (b) with respect to any
transaction or series of related transactions involving aggregate payments in
excess of $5,000,000, Publishing delivers an Officers' Certificate to the
Trustee certifying that such transaction or series of related transactions
complies with clause (a) above and such transaction or series of related
transactions has been approved by a majority of the Independent Directors of
the Board of Directors; provided that any transaction or series of related
transactions otherwise permitted under this paragraph (other than any
transaction or series of related transactions with respect to the making of any
Permitted Investment pursuant to clause (ix) of the definition of "Permitted
Investment" or any Restricted Payment permitted pursuant to Section 10.09
(other than those referred to in clause (vi) of paragraph (b) thereof) pursuant
to which Publishing or any Restricted Subsidiary shall receive or render value
exceeding $15,000,000 shall not be permitted
120
120
unless, prior to the consummation of any such transaction or series of related
transactions, Publishing shall have received an opinion, from an independent
nationally recognized investment banking firm or firm experienced in the
appraisal or similar review of similar types of transactions, that such
transaction is fair to Publishing from a financial point of view; provided
further, that this covenant shall not apply to (i) transactions or agreements as
in effect or securities outstanding on the date of the Indenture (provided that
any amendment to any existing agreement (including the Services Agreement and
the Business Opportunities Agreement), and any transaction pursuant to the
Business Opportunities Agreement, shall require approval pursuant to this
covenant; notwithstanding the foregoing, any amendment to the Services Agreement
or the Business Opportunities Agreement shall require the approval of a majority
of the Independent Directors); (ii) directors' fees approved by the Board of
Directors; (iii) any employee benefit plan or arrangement entered into or made
available to officers or other employees of Publishing or the Restricted
Subsidiaries in the ordinary course of business; (iv) sales by Publishing and
its Restricted Subsidiaries of their products in the ordinary course of business
on arm's-length terms; (v) tax payments pursuant to a Tax Sharing Agreement to
the extent that the aggregate amount of such payments do not exceed the
aggregate amount of the tax payments that Publishing and the Restricted
Subsidiaries would have been required to make if they alone constituted a single
consolidated tax group; (vi) loans, advances, dividends or distributions by
FDTH, DTH or Publishing to Xxxxxxxxx International in amounts and for the
purpose permitted by Section 10.09(b)(v) and (vii); (vii) payments made to
Xxxxxxxxx Inc. pursuant to the Services Agreement that constitute the
reimbursement for the fair value (as determined by a majority of the Independent
Directors serving on an Independent Committee) of services received by
Publishing or a Restricted Subsidiary consistent with past practices; and (viii)
the issuance or redemption, retraction or transfer of or payment of dividends,
distributions or other amounts on Mirror Preferred by DTH or FDTH to an Argsub,
but only to the extent that such Argsub simultaneously, as the case may be,
issues or redeems or pays dividends, distributions or other amounts (or is
deemed to have taken any such action) to DTH or FDTH, in each case in equivalent
amounts.
121
121
SECTION 10.11. Limitation on Other Subordinated Indebtedness. Neither
Publishing nor any Restricted Subsidiary Guarantor will Incur or permit to
exist any Indebtedness (other than the Securities or a Guarantee thereof
pursuant to this Indenture, as applicable) that is subordinate in right of
payment to any Senior Indebtedness of Publishing (or such Guarantor) unless
such Indebtedness is also pari passu with, or subordinate in right of payment
to, the Securities or the Guarantee of such Guarantor, as the case may be. For
purposes of this covenant, Indebtedness will be deemed to be pari passu with
the Securities or such Guarantee if it is subordinate to Senior Indebtedness of
Publishing or the relevant Guarantee pursuant to subordination provisions
substantially similar to those described in Section 12.01.
SECTION 10.12. Limitation on Liens. (a) Publishing will not, and will not
permit any Restricted Subsidiary to Incur, affirm or suffer to exist any Lien
of any kind securing any Pari Passu Indebtedness or Subordinated Indebtedness
(including any assumption, guarantee or other liability with respect thereto by
any Restricted Subsidiary) upon any property or assets (including any
intercompany notes) of Publishing or any Restricted Subsidiary owned on the
date of this Indenture or acquired after the date of this Indenture, or any
income or profits therefrom, unless (i) in the case of any Lien securing Pari
Passu Indebtedness, the Securities are secured by a Lien on such property,
assets or proceeds that is senior in priority to or pari passu with such Lien
and (ii) in the case of any Lien securing Subordinated Indebtedness, the
Securities are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Lien, except for (i) any Lien securing Acquired
Indebtedness created prior to (and not created in connection with, or in
contemplation of) the Incurrence of such Pari Passu Indebtedness or
Subordinated Indebtedness by Publishing or any Restricted Subsidiary, in each
case which Indebtedness is permitted under the provisions of Section 10.08
(provided that any such Lien only extends to the assets that were subject to
such Lien securing such Acquired Indebtedness prior to the related acquisition
by Publishing or its Restricted Subsidiaries) and (ii) any Lien securing
Indebtedness owing to Publishing or a Wholly Owned Restricted Subsidiary by a
Restricted Subsidiary.
(b) Notwithstanding the foregoing, any security interest granted by
Publishing or any Restricted Subsidiary
122
122
to secure the Securities created pursuant to paragraph (a) above shall provide
by its terms that such security interest shall be automatically and
unconditionally released and discharged upon the release by the holders of the
Indebtedness of Publishing or any Restricted Subsidiary described in paragraph
(a) above of their security interest (including any deemed release upon payment
in full of all obligations under such Indebtedness), at a time when (A) no
other Pari Passu Indebtedness and Subordinated Indebtedness of Publishing or
any Restricted Subsidiary has been secured by such property or assets of
Publishing or any such Restricted Subsidiary or (B) the holders of all such
other Pari Passu Indebtedness and Subordinated Indebtedness which is secured by
such property or assets of Publishing or any such Restricted Subsidiary also
release their security interest in such property or assets (including any
deemed release upon payment in full of all obligations under such
Indebtedness).
SECTION 10.13. Limitation on Issuances of Guarantees of Indebtedness. (a)
Publishing will not permit any Restricted Subsidiary, directly or indirectly,
to guarantee, assume or in any other manner become liable with respect to any
Pari Passu Indebtedness or Subordinated Indebtedness unless such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to
this Indenture providing for a guarantee of the Securities and (A) if the
Securities are subordinated in right of payment to such Indebtedness, the
guarantee under the supplemental indenture shall be subordinated to the same
extent as the Securities are subordinated to such Indebtedness under this
Indenture and (B) if such Indebtedness of Publishing is by its terms expressly
subordinated to the Securities, any such assumption, guarantee or other
liability of such Restricted Subsidiary with respect to such Indebtedness shall
be subordinated to such Restricted Subsidiary's guarantee to the same extent as
such Indebtedness is subordinated to the Securities.
(b) Notwithstanding the foregoing, any guarantee by a Restricted Subsidiary
of the Securities that is provided pursuant to the foregoing paragraph or under
the provisions of Section 10.16 may provide by its terms that it shall be
automatically and unconditionally released and discharged (i) upon any sale,
exchange or transfer, to any Person not an Affiliate of Publishing, of all of
Publishing's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale,
123
123
exchange or transfer is in compliance with this Indenture, (ii) if the
Restricted Subsidiary issuing such guarantee ceases to be a Restricted
Subsidiary or (iii) upon the release by the holders of the Indebtedness of
Publishing described in paragraph (a) above of their Guarantee by such
Restricted Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), at a time when (A) no Indebtedness of
Publishing or any Restricted Subsidiary has been guaranteed by such Restricted
Subsidiary or (B) the holders of all such other Indebtedness which is
guaranteed by such Restricted Subsidiary also release their Guarantee by such
Restricted Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
SECTION 10.14. Limitation on Sale of Assets. (a) Publishing will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
consummate an Asset Sale unless (i) at least 80% of the proceeds from such
Asset Sale are received in cash (provided that the amount of (A) any Senior
Indebtedness (as shown on Publishing's or such Restricted Subsidiaries' most
recent balance sheet or in the notes thereto) of Publishing or any such
Restricted Subsidiary that is assumed by the transferee of any asset in
connection with any Asset Sale and (B) any deferred payment obligations
received by Publishing or any such Restricted Subsidiary as proceeds of an
Asset Sale that are concurrently with the Asset Sale converted into cash
without recourse to Publishing or any of its Restricted Subsidiaries shall be
deemed to be cash for purposes of this provision; provided further that, for
purposes of this clause (i), "cash" shall include any cash proceeds received
from the sale of securities received in an Asset Sale as long as at the time of
such Asset Sale, Publishing or its Restricted Subsidiary, as applicable, has
entered into a legally binding agreement for the sale of such securities and
such securities are sold within 90 days of such Asset Sale; and provided
further that this clause (i) shall not apply to (w) Newspaper Businesses
received by Publishing or a Restricted Subsidiary from the transferee as
consideration for an Asset Sale (an "Asset Swap") so long as, immediately
before and immediately after giving effect to such transaction on a pro forma
basis, Publishing could Incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the provisions of Section 10.08, (x) a CST Real
Estate Transaction or (y) a Permitted Real Estate Sale)) and (ii) Publishing or
such Restricted Subsidiary receives consideration at the time of such Asset
Sale at
124
124
least equal to the fair market value of the shares or assets sold (as
determined by the Board of Directors of Publishing and evidenced by a board
resolution). The value of any properties or assets (other than cash) received
pursuant to an Asset Sale shall be determined by the Board of Directors of
Publishing and evidenced by a Board Resolution; provided that if the value of
the asset which is the subject of the Asset Sale is in excess of $25,000,000,
the value of the properties or assets received shall be determined by an
independent nationally recognized investment banking firm or firm experienced
in the appraisal or similar review of similar types of assets (provided that
for purposes of this sentence, any CST Real Estate Transaction shall be deemed
to involve an asset whose value exceeds $25,000,000).
(b) If all or a portion of the Net Cash Proceeds of any Asset Sale is not
applied to permanently repay or otherwise permanently retire any Senior
Indebtedness then outstanding as permitted or required by the terms thereof, or
if no such Senior Indebtedness is then outstanding, Publishing or a Restricted
Subsidiary, as the case may be, may, within 12 months of the Asset Sale, invest
the Net Cash Proceeds in properties and assets that (as determined by the Board
of Directors) replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that will be used in the businesses of
Publishing or its Restricted Subsidiaries existing on the date of this
Indenture or in businesses reasonably related thereto. The amount of such Net
Cash Proceeds neither used to permanently repay or prepay Senior Indebtedness
nor used or invested as set forth in this paragraph constitutes "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds
$20,000,000, Publishing shall apply the Excess Proceeds to the repayment of the
Securities and any Pari Passu Indebtedness required to be repurchased under the
instrument governing such Pari Passu Indebtedness as follows: (i) Publishing
shall make an offer to purchase (an "Offer") from all Holders in accordance
with the procedures set forth in this Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount (the "Note Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the outstanding principal
amount of the Securities, and the denominator of which is the sum of the
outstanding principal amount of the Securities and such Pari Passu Indebtedness
(subject to proration in the event such amount is less than the
125
125
aggregate Offered Price (as defined herein) of all Securities tendered) and
(ii) to the extent required by such Pari Passu Indebtedness to permanently
reduce the principal amount of such Pari Passu Indebtedness, Publishing shall
make an offer to purchase or otherwise repurchase or redeem Pari Passu
Indebtedness (a "Pari Passu Offer") in an amount (the "Pari Passu Debt Amount")
equal to the excess of the Excess Proceeds over the Note Amount; provided that
in no event shall the Pari Passu Debt Amount exceed the principal amount of
such Pari Passu Indebtedness plus the amount of any premium required to be paid
to repurchase such Pari Passu Indebtedness. The offer price shall be payable
in cash in an amount equal to 100% of the principal amount of the Securities
plus accrued and unpaid interest, if any, to the date (the "Purchase Date")
such Offer is consummated (the "Offered Price"), in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate
Offered Price of the Securities tendered pursuant to the Offer is less than the
Note Amount relating thereto or the aggregate amount of Pari Passu Indebtedness
that is purchased is less than the Pari Passu Debt Amount (the amount of such
shortfall, if any, constituting a "Deficiency"), Publishing shall use such
Deficiency in the business of Publishing and its Restricted Subsidiaries. Upon
completion of the purchase of all Securities tendered pursuant to an Offer and
repurchase of the Pari Passu Indebtedness pursuant to a Pari Passu Offer, the
amount of Excess Proceeds, if any, shall be reset at zero.
(d) Whenever the aggregate amount of Excess Proceeds received by Publishing
exceeds $20,000,000, such Excess Proceeds shall, prior to the purchase of
Securities or any Pari Passu Indebtedness described in paragraph (c) above, be
set aside by Publishing in a separate account pending (i) deposit with the
depository or a Paying Agent of the amount required to purchase the Securities
or Pari Passu Indebtedness tendered in an Offer or a Pari Passu Offer, (ii)
delivery by Publishing of the Offered Price to the holders of the Securities or
Pari Passu Indebtedness tendered in an Offer or a Pari Passu Offer and (iii)
application, as set forth above, of Excess Proceeds in the business of
Publishing and its Restricted Subsidiaries. Such Excess Proceeds may be
invested in Temporary Cash Investments; provided that the maturity date of any
such investment made after the amount of Excess Proceeds equals or exceeds
$20,000,000 shall not be later than the Purchase Date. Publishing shall be
entitled to any interest or dividends accrued, earned or paid on such Temporary
Cash
126
126
Investments; provided that Publishing shall not be entitled to such interest
and shall not withdraw such interest from the separate account, if an Event of
Default has occurred and is continuing.
(e) If Publishing becomes obligated to make an Offer pursuant to paragraph
(c) above, the Securities shall be purchased by Publishing, at the option of
the Holder thereof, in whole or in part in integral multiples of $1,000, on a
date that is not earlier than 30 days and not later than 60 days from the date
the notice is given to Holders, or such later date as may be necessary for
Publishing to comply with the requirements under the Exchange Act, subject to
proration in the event the Note Amount is less than the aggregate Offered Price
of all Securities tendered.
(f) Publishing shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with an Offer.
(g) Publishing shall not, and shall not permit any Subsidiary to, create or
permit to exist or become effective any restriction (other than restrictions
existing under (i) Indebtedness as in effect on the date of this Indenture as
such Indebtedness may be refinanced from time to time or (ii) any Senior
Indebtedness existing on the date of this Indenture or thereafter; provided, in
each case, that such restrictions are no less favorable to the Holders than
those existing on the date of this Indenture) that would expressly impair the
ability of Publishing to make an Offer to purchase the Securities or, if such
Offer is made, to pay for the Securities tendered for purchase.
(h) Within 30 days after the date on which the amount of Excess Proceeds
equals or exceeds $20,000,000, Publishing shall send by first-class mail,
postage prepaid, to the Trustee and to each Holder of the Securities of that
Series, at such Holder's address appearing in the Security Register, a notice
stating or including:
A. that the Holder of such Series has the right to require Publishing to
repurchase, subject to proration, part or all of such Holder's Securities at
the Offered Price;
B. the Purchase Date;
127
127
C. the instructions a Holder of such Series must follow in order to have
its Securities purchased in accordance with paragraph (c) of this Section;
and
D. (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of Publishing, the most recent
subsequently filed Quarterly Report on Form 10-Q, as applicable, and any
Current Report on Form 8-K of Publishing filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Sales otherwise
described in the offering materials (or corresponding successor reports) (or
in the event Publishing is not required to prepare any of the foregoing
Forms, the comparable information required pursuant to Section 10.18), (ii)
a description of material developments in Publishing's business subsequent
to the date of the latest of such Reports, (iii) if material, appropriate
pro forma financial information, and (iv) such other information, if any,
concerning the business of Publishing and its Restricted Subsidiaries which
Publishing in good faith believes will enable such Holders to make an
informed investment decision regarding the Offer;
E. the Offered Price;
F. the names and addresses of the Paying Agent and the offices or agencies
referred to in Section 10.02;
G. that Securities of such Series must be surrendered at least three
Business Days prior to the Purchase Date to the Paying Agent or to an office
or agency referred to in Section 10.02 to collect payment;
H. that any Securities of such Series not tendered will continue to accrue
interest and that unless Publishing defaults in the payment of the purchase
price, any Security accepted for payment pursuant to the Offer shall cease
to accrue interest on and after the Purchase Date; and
I. the procedures for withdrawing a tender.
128
128
(i) Holders electing to have Securities of such Series purchased hereunder
will be required to surrender such Securities at the address specified in the
notice at least three Business Days prior to the Purchase Date. Holders will
be entitled to withdraw their election to have their Securities purchased
pursuant to this Section 10.15 if Publishing receives, not later than three
Business Days prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth (1) the name of the Holder, (2) the
certificate number of the Security in respect of which such notice of
withdrawal is being submitted, (3) the principal amount of the Security (which
shall be $1,000 or an integral multiple thereof) delivered for purchase by the
Holder as to which his election is to be withdrawn, (4) a statement that such
Holder is withdrawing such Holder's election to have such principal amount of
such Security purchased, and (5) the principal amount, if any, of such Security
(which shall be $1,000 or an integral multiple thereof) that remains subject to
the original notice of the Offer and that has been or will be delivered for
purchase by Publishing.
(j) Publishing shall (i) not later than the Purchase Date, accept for
payment Securities of such Series or portions thereof tendered pursuant to the
Offer, (ii) not later than 11:00 a.m. (New York time) on the Purchase Date,
deposit with the Trustee or with a Paying Agent an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
Purchase Date) sufficient to pay the aggregate Offered Price of all the
Securities or portions thereof which are to be purchased on that date and (iii)
not later than 11:00 a.m. (New York time) on the Purchase Date, deliver to the
Paying Agent an Officers' Certificate stating the Securities or portions
thereof have been accepted for payment by Publishing.
The Trustee and the Paying Agent shall return to Publishing any cash that
remains unclaimed, together with interest, if any, thereon, held by them for
the payment of the Offered Price; provided, however, that, (x) to the extent
that the aggregate amount of cash deposited by Publishing with the Trustee or a
Paying Agent in respect of an Offer exceeds the aggregate Offered Price of the
Securities or portions thereof to be purchased, then the Trustee or a Paying
Agent shall hold such excess for Publishing and (y) unless otherwise directed
by Publishing in writing, promptly after the Business Day following the
Purchase Date the Trustee or a Paying Agent shall return any
129
129
such excess to Publishing together with interest or dividends, if any, thereon.
(k) Securities of that Series to be purchased shall, on the Purchase Date,
become due and payable at the Offered Price and from and after such date
(unless Publishing shall default in the payment of the Offered Price) such
Securities shall cease to bear interest. The Offered Price shall be paid to
such Holder promptly following the later of the Purchase Date and the time of
delivery of such Security to the relevant Paying Agent at the office of such
Paying Agent by the Holder thereof in the manner required. Upon surrender of
any such Security for purchase in accordance with the foregoing provisions,
such Security shall be paid by Publishing at the Offered Price; provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Purchase Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant Regular Record
Dates according to the terms and the provisions of Section 3.07; provided
further that Securities of that Series to be purchased are subject to proration
in the event the Excess Proceeds are less than the aggregate Offered Price of
all Securities of such Series tendered for purchase, with such adjustments as
may be deemed appropriate by the Trustee so that only Securities of such Series
in denominations of $1,000 or integral multiples thereof shall be purchased.
If any Security of such Series tendered for purchase in accordance with the
terms of this Section shall not be so paid upon surrender thereof by deposit of
funds with the Trustee or a Paying Agent in accordance with paragraph (j)
above, the principal thereof (and premium, if any, thereon) shall, until paid,
bear interest from the Purchase Date at the rate borne by such Security. Any
Security of such Series that is to be purchased only in part shall be
surrendered to a Paying Agent in accordance with the terms of this Section at
the office of such Paying Agent (with, if Publishing or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to Publishing and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and Publishing shall
execute and pursuant to a Publishing Order the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, one or more new
Securities of any authorized denomination as requested by such Holder in an
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased.
130
130
SECTION 10.15. Purchase of Securities upon a Change of Control. (a) If a
Change of Control shall occur at any time, then each Holder with respect to
Securities of any Series shall have the right to require that Publishing
purchase such Holder's Securities, pursuant to an offer described in subsection
(b) of this Section (a "Change of Control Offer"), in whole or in part in
integral multiples of $1,000, at a purchase price (the "Change of Control
Purchase Price") in cash in an amount equal to 101% of the principal amount of
such Securities, plus accrued and unpaid interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), in accordance with the
procedures set forth in paragraphs (b), (c), (d) and (e) of this Section.
(b) Within 30 days following any Change of Control, Publishing shall notify
the Trustee thereof and give written notice (a "Change of Control Purchase
Notice") of such Change of Control to each Holder by first-class mail, postage
prepaid, to the Trustee and to each Holder at his address appearing in the
Security Register, stating or including:
A. that a Change of Control has occurred, the date of such event, and that
such Holder has the right to require Publishing to repurchase such Holder's
Securities at the Change of Control Purchase Price;
B. the circumstances and relevant facts regarding such Change of Control
(including but not limited to information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change of Control, if any);
C. that the Change of Control Offer is being made pursuant to Section
10.15(a) and that all Securities properly tendered pursuant to the Change of
Control Offer will be accepted for payment at the Change of Control Offer
Purchase Price;
D. the Change of Control Purchase Date, which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is
mailed or such later date as may be necessary for Publishing to comply with
the requirements under the Exchange Act;
E. (i) the most recently filed Annual Report on Form 10-K (including audited
consolidated financial
131
131
statements) of Publishing, the most recent subsequently filed Quarterly
Report on Form 10-Q, as applicable, and any Current Report on Form 8- K of
Publishing filed subsequent to such Quarterly Report (or in the event
Publishing is not required to prepare any of the foregoing Forms, the
comparable information required to be prepared by Publishing pursuant to
Section 10.18), (ii) a description of material developments in Publishing's
business subsequent to the date of the latest of such reports and (iii) such
other information, if any, concerning the business of Publishing and its
Restricted Subsidiaries which Publishing in good faith believes will enable
such Holders to make an informed investment decision regarding the Change of
Control Offer;
F. the Change of Control Purchase Price;
G. the names and addresses of the Paying Agent and the offices or agencies
referred to in Section 10.02;
H. that Securities of that Series must be surrendered at least three
Business Days prior to the Change of Control Purchase Date to the Paying
Agent at the Office of the Paying Agent or to an office or agency referred to
in Section 10.02 to collect payment;
I. that the Change of Control Purchase Price for any Security which has been
properly tendered and not withdrawn will be paid promptly following the
Change of Control Purchase Date;
J. the procedures for withdrawing a tender of Securities and Change of
Control Purchase Notice;
K. that any Security of such Series not tendered will continue to accrue
interest; and
L. that, unless Publishing defaults in the payment of the Change of Control
Purchase Price, any Security of such Series accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date.
(c) Upon receipt by Publishing of the proper tender of Securities of such
Series, each Holder of a Security in respect of which such proper tender was
made shall (unless the tender of such Security is properly
132
132
withdrawn) thereafter be entitled to receive solely the Change of Control
Purchase Price with respect to such Security. Upon surrender of any such
Security for purchase in accordance with the foregoing provisions, such
Security shall be paid by Publishing at the Change of Control Purchase Price;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Change of Control Purchase Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such on
the relevant Regular Record Dates according to the terms and the provisions of
Section 3.07. If any Security tendered for purchase in accordance with the
provisions of this Section shall not be so paid upon surrender thereof by
deposit of funds with the Paying Agent in accordance with paragraph (d) below,
the principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Change of Control Purchase Date at the rate borne by such
Security. Holders electing to have Securities of such Series purchased will be
required to surrender such Securities to the Paying Agent at the address
specified in the notice at least three Business Days prior to the Change of
Control Purchase Date. Any Security of such Series that is to be purchased
only in part shall be surrendered to a Paying Agent in accordance with the
provisions of this Section at the office of such Paying Agent (with, if
Publishing or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to Publishing and the Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and Publishing shall execute and pursuant to a Publishing Order the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, one or more new Securities of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.
(d) Publishing shall (i) not later than the Change of Control Purchase
Date, accept for payment of Securities of such Series or portion thereof
tendered pursuant to the Change of Control Offer, (ii) not later than 11:00
a.m. (New York time) on the Change of Control Purchase Date, deposit with the
Paying Agent an amount of cash sufficient to pay the aggregate Change of
Control Purchase Price of all the Securities or portions thereof which are to
be purchased as of the Change of Control Purchase Date and (iii) not later than
11:00 a.m. (New York time) on the Change of Control Purchase Date, deliver to
the Paying Agent
133
133
an Officers' Certificate stating the Securities of such Series or portions
thereof accepted for payment by Publishing. The Paying Agent shall promptly
mail or deliver to Holders of Securities of such Series so accepted payment in
an amount equal to the Change of Control Purchase Price of the Securities of
such Series purchased from each such Holder. Any Securities of such Series not
so accepted shall be promptly mailed or delivered by the Paying Agent at
Publishing's expense to the Holder thereof. Publishing will publicly announce
the results of the Change of Control Offer on the Change of Control Purchase
Date. For purposes of this Section 10.15, Publishing shall choose a Paying
Agent which shall not be Publishing.
(e) A tender made in response to a Change of Control Purchase Notice may be
withdrawn before or after delivery by the Holder to the Paying Agent at the
office of the Paying Agent of the Security of such Series to which such Change
of Control Purchase Notice relates, by means of a written notice of withdrawal
delivered by the Holder to the Paying Agent at the office of the Paying Agent
or to the office or agency referred to in Section 10.02 to which the related
Change of Control Purchase Notice was delivered not later than three Business
Days prior to the Change of Control Purchase Date specifying as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect of which such notice
of withdrawal is being submitted;
(3) the principal amount of the Security (which shall be $1,000 or an
integral multiple thereof) delivered for purchase by the Holder as to which
such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing such Holder's election to
have such principal amount of such Security purchased; and
(5) the principal amount, if any, of such Security (which shall be $1,000 or
an integral multiple thereof) that remains subject to the original Change of
Control Purchase Notice and that has been or will be delivered for purchase
by Publishing.
134
134
(f) As provided in the Securities, the Trustee and the Paying Agent shall
return to Publishing any cash that remains unclaimed, together with interest or
dividends, if any, thereon, held by either of them for the payment of the
Change of Control Purchase Price; provided, however, that, (x) to the extent
that the aggregate amount of cash deposited by Publishing pursuant to clause
(ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase
Price of the Securities of any such Series or portions thereof to be purchased,
then the Trustee or the Paying Agent shall hold such excess for Publishing and
(y) unless otherwise directed by Publishing in writing, promptly after the
Business Day following the Change of Control Purchase Date, the Trustee or the
Paying Agent shall return any such excess to Publishing together with interest,
if any, thereon.
(g) Publishing shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer.
(h) Notwithstanding the occurrence of a Change of Control, Publishing shall
not be obligated to repurchase the Securities of any such Series pursuant to a
Change of Control Offer, or otherwise comply with this Section 10.15, if
Publishing has elected to redeem all of the Securities of such Series in
accordance with Article XI.
Publishing shall not, and shall not permit any Subsidiary to, create or
permit to exist or become effective any restriction (other than restrictions
existing under (i) Indebtedness as in effect on the date of this Indenture as
such Indebtedness may be refinanced from time to time or (ii) any Senior
Indebtedness existing on the date of this Indenture or thereafter; provided, in
each case, that such restrictions are no less favorable to the Holders than
those existing on the date of this Indenture) that would expressly impair the
ability of Publishing to make a Change of Control Offer to purchase the
Securities or, if such Change of Control Offer is made, to pay for the
Securities tendered for purchase.
SECTION 10.16. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries. (a) Until such time as both of The Telegraph and
Southam are Restricted Subsidiaries, Publishing will not permit (i) any
Restricted Subsidiary to issue any Capital Stock (other than to a
135
135
Publishing or any Wholly Owned Restricted Subsidiary) or (ii) any Person (other
than Publishing or a Wholly Owned Restricted Subsidiary) to acquire any Capital
Stock of any Restricted Subsidiary from Publishing or any Restricted
Subsidiary, except upon the sale of all of the outstanding Capital Stock of
such Restricted Subsidiary owned by Publishing and the designation of such
Subsidiary as an Unrestricted Subsidiary; provided, however, that Publishing or
a Restricted Subsidiary may issue or sell common stock of a Restricted
Subsidiary to a Person that is not an Affiliate of Publishing so long as, on or
prior to the consummation of such issuance or sale, such Restricted Subsidiary
issues and delivers a supplemental indenture to this Indenture providing for
the guarantee of the Securities, which guarantee shall be subordinated in right
of payment to any Senior Indebtedness of such Restricted Subsidiary, on
substantially the same terms as the Securities are subordinated to all Senior
Indebtedness of Publishing.
(b) On or after the time that both Southam and The Telegraph are Restricted
Subsidiaries, (i) without limiting the requirements of Section 10.14, in the
event that (x) Publishing or a Restricted Subsidiary issues or sells (other
than to a Restricted Subsidiary) Capital Stock of a Restricted Subsidiary (1)
that was a Subsidiary on February 1, 1997 (which, for purposes of this clause
(1), is deemed to include Southam and Xxxxxxxxx Eastern), (2) any substantial
portion of the operating assets of which were held by a Subsidiary on February
1, 1997 and were generating material revenue and cash flows on such date, or
(3) any substantial portion of the operating assets of which consist of assets
that are acquired by Publishing or a Restricted Subsidiary pursuant to the
Xxxxxxxxx Inc. Transaction and (y) such issuance or sale involves less than
100% of the Capital Stock of such Restricted Subsidiary held by Publishing and
the Restricted Subsidiaries at the time of such issuance or sale, then the Net
Cash Proceeds of such issuance or sale (1) shall be applied to permanently
repay or otherwise permanently retire any Senior Indebtedness then outstanding,
as permitted or required by the terms thereof, or (2) if there is no Senior
Indebtedness then outstanding, then the balance of such Net Cash Proceeds shall
be deemed to constitute Excess Proceeds for purposes of Section 10.14(c);
provided that the foregoing clause (i) shall not apply to any new issuance of
Capital Stock by Southam as long as (a) Southam is a Public Entity at the time
of such issuance; (b) neither Publishing nor any other Restricted Subsidiary
has at any time after February 1, 1997 sold any
136
136
assets and contributed, directly or indirectly, the proceeds therefrom to
Southam; and (c) neither Publishing nor any other Restricted Subsidiary has at
any time after February 1, 1997 contributed, directly or indirectly, any
Newspaper Businesses to Southam other than those Newspaper Businesses acquired
in the Xxxxxxxxx Inc. Transaction; and (ii) if any issuance of Capital Stock by
a Restricted Subsidiary or sale or disposition of Capital Stock of a Restricted
Subsidiary results in a Restricted Subsidiary ceasing to qualify as a
Subsidiary, such transaction would deemed, for purposes of Section 10.09, to
constitute the designation of such former Restricted Subsidiary as an
Unrestricted Subsidiary.
SECTION 10.17. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. Publishing will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a) pay dividends or
make any other distribution on its Capital Stock to Publishing or any other
Restricted Subsidiary, (b) pay any Indebtedness owed to Publishing or any other
Restricted Subsidiary, (c) make any Investment in Publishing or (d) transfer
any of its properties or assets to Publishing or any Restricted Subsidiary,
except (i) any encumbrance or restriction pursuant to or in connection with the
New Bank Credit Facility or the FDTH Bank Credit Facility as in effect on the
date of this Indenture or any other agreement in effect on the date of this
Indenture (including the AP-91 Senior Notes), (ii) any encumbrance or
restriction, with respect to a Restricted Subsidiary that is not a Restricted
Subsidiary of Publishing on the date of this Indenture, in existence at the
time such Person becomes a Restricted Subsidiary of Publishing and not Incurred
in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary, (iii) any encumbrance or restriction pursuant to or in connection
with documents existing or securing any Foreign Subsidiary Indebtedness that is
not materially more restrictive than the terms of any such restrictions
existing on the date of the Indenture or the date such Subsidiary becomes a
Restricted Subsidiary, as determined in good faith by an officer of Publishing,
(iv) encumbrances or restrictions entered into by Southam in connection with
Indebtedness of Southam Incurred at a time when Southam is a Public Entity, (v)
encumbrances or restrictions contained in the terms of any Mirror Preferred,
provided that such Mirror Preferred continues to quality as such under the
definition
137
137
thereof, (vi) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of Publishing or any Restricted Subsidiary
and (vii) any encumbrance or restriction existing under any agreement that
extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (i), (ii) and (iii)
(other than the covenants in the AP-91 Senior Notes); provided that the terms
and conditions of any such encumbrances or restrictions are not materially less
favorable to the Holders than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed, refinanced or replaced.
SECTION 10.18. Provision of Financial Statements. Whether or not Xxxxxxxxx
International is subject to Section 13(a) or 15(d) of the Exchange Act,
Xxxxxxxxx International will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents that it would have been required to file with the Commission pursuant
to such Sections 13(a) or 15(d), including any "summarized information" or
other information relating to Publishing as may be required by Regulation S-X
under the Exchange Act or by the Commission, if it were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which it would have been required so to file
such documents if it were so subject. Xxxxxxxxx International will in any
event (x) within 15 days of such Required Filing Date (i) transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
without cost to such Holders and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which Publishing would
have been required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act if Xxxxxxxxx International were subject to such
Sections and (y) if filing such documents by Xxxxxxxxx International with the
Commission is not permitted under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective holder of Securities at
Publishing's cost.
SECTION 10.19. Statement by Officers as to Default. (a) Publishing will
deliver to the Trustee, on or before a date not more than 45 days after the end
of each fiscal quarter and not more than 90 days after the end of each fiscal
year of Publishing ending after the date hereof, a written statement signed by
two executive officers of
138
138
Publishing, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of Publishing, stating
whether or not, after a review of the activities of Publishing during such year
or such quarter and of Publishing's performance under this Indenture, to the
best knowledge, based on such review, of the signers thereof, Publishing has
fulfilled all its obligations and is in compliance with all conditions and
covenants under this indenture throughout such year or quarter, as the case may
be, and, if there has been a Default, specifying each Default and the nature
and status thereof.
(b) When any Default or Event of Default has occurred and is continuing, or
if the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of Publishing or any Restricted Subsidiary gives any
notice or takes any other action with respect to a claimed default, Publishing
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission followed by hard copy an Officers' Certificate
specifying such Default, Event of Default, notice or other action, the status
thereof and what action Publishing is taking or proposes to take with respect
thereto, within five Business Days of its occurrence.
SECTION 10.20. Waiver of Certain Covenants. Publishing may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 10.05 through 10.15 and Sections 10.17 through 10.19 if, before or
after the time for such compliance, the Holders of not less than a majority in
aggregate principal amount of the Securities of any Series at the time
Outstanding waive such compliance in such instance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of Publishing and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 10.21. Limitation on the Designation of Additional Restricted or
Unrestricted Subsidiaries. (a) The Board of Directors may designate any
Restricted Subsidiary as an Unrestricted Subsidiary if (i) such action is in
compliance with Section 10.09 of this Indenture and (ii) such action complies
with definition of "Unrestricted Subsidiaries."
139
139
(b) The Board of Directors may designate any Unrestricted Subsidiary or any
Person that is to become a Restricted Subsidiary as a Restricted Subsidiary if
immediately after giving effect to such action (and treating any Acquired
Indebtedness as having been Incurred at the time of such action), Publishing
could have Incurred at least $1.00 of additional Indebtedness pursuant to
Section 10.08 of this Indenture.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. The Securities of any Series may be
redeemed, at the election of Publishing, as a whole or in part, at any time on
or after [ , 2001], subject to the conditions and at the Redemption Prices
specified in the form of Security of such Series or in the indenture
supplemental hereto with respect to Securities of such Series as provided in
Section 3.01, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record of Securities of
such Series on relevant Regular Record Dates and Special Record Dates to
receive interest due on relevant Interest Payment Dates) to the extent that
this Article does not conflict with the terms of the form of Security of such
Series.
SECTION 11.02. Applicability of Article. Redemption of Securities at the
election of Publishing or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.
SECTION 11.03. Election To Redeem; Notice to Trustee. The election of
Publishing to redeem any Securities pursuant to Section 11.01 shall be
evidenced by a Publishing Order and an Officers' Certificate. In case of any
redemption at the election of Publishing, Publishing shall, not less than 30
nor more than 60 days prior to the Redemption Date fixed by Publishing (unless
a shorter notice period shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Securities of such Series and the Tranche (as defined in Section 11.04) to be
redeemed.
140
140
SECTION 11.04. Selection by Trustee of Securities To Be Redeemed. If less
than all the Securities of like tenor and terms of any Series (a "Tranche") are
to be redeemed, the particular Securities or portions thereof to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee (or such shorter period as the Trustee may agree upon), from the
Outstanding Securities of such Tranche not previously called for redemption, by
lot or such other method as the Trustee shall deem fair and reasonable, and the
amounts to be redeemed may be equal to $1,000 or any integral multiple thereof,
unless otherwise provided in the terms of a particular Series of Securities.
The Trustee shall promptly notify Publishing and each Security Registrar in
writing of the Securities selected for redemption and, in the case of the
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 11.05. Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any Series are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal amount
of such Security to be redeemed and that after the Redemption Date upon
surrender of such Security, a new Security or
141
141
Securities in the aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(e) that Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security or portion thereof to be redeemed, and that
(unless Publishing shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the election of
Publishing shall be given by Publishing or at Publishing's written request, by
the Trustee in the name and at the expense of Publishing. If Publishing elects
to give notice of redemption, it shall provide the Trustee with a certificate
stating that such notice has been given in compliance with the requirements of
this Section 11.05.
Such notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice.
In any case, failure to give such notice by mail or any defect in the notice to
the Holder of any Security designated for redemption as a whole or in part
shall not effect the validity of the proceedings for the redemption of any
other Security.
SECTION 11.06. Deposit of Redemption Price. Prior to Noon, New York time,
on any Redemption Date, Publishing shall irrevocably deposit with the Trustee
or with a Paying Agent an amount of money in same day funds sufficient to pay
the Redemption Price of, and, except if the Redemption Date shall be an
Interest Payment Date, accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date. The Trustee or the Paying Agent
shall hold in trust for, and return to, Publishing promptly after the Business
Day following the
142
142
Redemption Date any interest or dividends, if any, earned on amounts deposited
with the Trustee or the Paying Agent remaining after the payment of the
aggregate Redemption Price for all securities to be redeemed; provided that
neither the Trustee nor the Paying Agent shall be under any obligation to place
or invest such funds in an interest bearing account.
SECTION 11.07. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless Publishing shall not have
deposited funds in accordance with Section 11.06 in respect of the payment of
the Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by Publishing at the Redemption
Price together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant Regular Record
Dates according to the terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, by deposit or segregation of funds in accordance with
Section 11.06, the principal and premium, if any, shall, until paid, bear
interest from the Redemption Date at the rate then borne by such Security.
SECTION 11.08. Securities Redeemed or Purchased in Part. Any Security
which is to be redeemed or purchased only in part shall be surrendered to the
Paying Agent at the office or agency maintained for such purpose pursuant to
Section 10.02 (with, if Publishing, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to Publishing, the Security Registrar or the Trustee as the case
may be, duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing), and Publishing shall execute, and pursuant to a
Publishing Order the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by
143
143
such Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not
redeemed or purchased.
ARTICLE XII
Subordination of Securities
SECTION 12.01. Securities Subordinate to Senior Indebtedness. Publishing
covenants and agrees, and each Holder, by such Holder's acceptance of the
Securities, likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article, the Indebtedness represented by
the Securities and the payment of the principal of, premium, if any, and
interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment as provided in this Article to the
prior payment in full, in cash or Cash Equivalents or in any manner acceptable
to the requisite holders of Designated Senior Indebtedness, of all Senior
Indebtedness. For purposes of this Indenture, the requisite holders of
Designated Senior Indebtedness shall be determined by the instruments governing
Designated Senior Indebtedness.
This Article XII shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold Senior
Indebtedness; and such provisions are made for the benefit of the holders of
Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
SECTION 12.02. Payment of Proceeds Upon Dissolution, etc. In the event of
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to Publishing or to its assets, or (b) any liquidation,
dissolution or other winding up of Publishing, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshaling of assets or liabilities
of Publishing, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment
in full in cash or Cash
144
144
Equivalents or in any other manner acceptable to the requisite holders of
Designated Senior Indebtedness, of all amounts due on or in respect of all
Senior Indebtedness, before the Holders of the Securities are entitled to
receive any payment or distribution of any kind or character (excluding
Permitted Junior Securities) on account of the principal of, premium, if any,
or interest on the Securities or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of the Securities (including
any payment or other distribution which may be received from the holders of
Subordinated Indebtedness as a result of any payment on such Subordinated
Indebtedness); and
(2) any payment or distribution of assets of Publishing of any kind or
character, whether in cash, property or securities (excluding Permitted Junior
Securities), by set-off or otherwise, to which the Holders or the Trustee would
be entitled but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full in cash or Cash
Equivalents or in any other manner acceptable to the requisite holders of
Designated Senior Indebtedness, of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of Publishing of any kind or character,
whether in cash, property or securities, in respect of principal, premium, if
any, and interest on the Securities or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of the Securities before all
Senior Indebtedness is paid in full; then and in such event such payment or
distribution (excluding Permitted Junior Securities) (including any payment or
other distribution which may be received from the
145
145
holders of Subordinated Indebtedness as a result of any payment on such
Subordinated Indebtedness) shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other person making payment or distribution of assets of Publishing
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full in cash or Cash
Equivalents or in any other manner acceptable to the requisite holders of
Designated Senior Indebtedness, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness and until so paid
shall be held in trust for the benefit of the holders of Senior Indebtedness.
The consolidation of Publishing with, or the merger of Publishing with or
into, another Person or the liquidation or dissolution of Publishing following
the sale, assignment, conveyance, transfer, lease or other disposal of all or
substantially all of Publishing's properties or assets to another Person upon
the terms and conditions set forth in Article VIII shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of Publishing for
the purposes of this Section if the Person formed by such consolidation or the
surviving entity of such merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of all or
substantially all of Publishing's properties or assets, as the case may be,
shall, as a part of such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposal, comply with the conditions set forth in
Article VIII.
SECTION 12.03. Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 12.02 shall be applicable, upon the occurrence and
continuation of a Payment Default beyond the applicable grace period, no
payment (other than any payments previously made pursuant to the provisions
described in Article IV) or distribution of any assets of Publishing of any
kind or character (excluding Permitted Junior Securities) shall be made by
Publishing on account of principal of, premium, if any, or interest on, the
Securities or on account of the purchase, redemption, defeasance or other
acquisition of or in respect of the Securities unless and until such Payment
Default shall have been cured or waived or shall have ceased to exist or the
Designated Senior Indebtedness shall have been discharged or
146
146
paid in full in cash or Cash Equivalents, or in any other manner acceptable to
the requisite holders of such Designated Senior Indebtedness, after which
Publishing shall resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 12.02 shall be applicable, upon (1) the occurrence and
continuation of a Non-payment Default and (2) receipt by the Trustee (with a
copy to Publishing) from a Senior Representative (as defined below) of written
notice of such occurrence, no payment (other than any payments previously made
pursuant to the provision described in Article IV) or distribution of any
assets of Publishing of any kind or character (excluding Permitted Junior
Securities) shall be made by Publishing on account of any principal of,
premium, if any, or interest on, the Securities or on account of the purchase,
redemption, defeasance or other acquisition of or in respect of Securities for
a period ("Payment Blockage Period") commencing on the date of receipt by the
Trustee of such notice unless and until the earliest of (subject to any
blockage of payments that may then or thereafter be in effect under subsection
(a) of this Section 12.03) (x) 179 days having elapsed since receipt of such
written notice by the Trustee (provided any Designated Senior Indebtedness as
to which notice was given shall not theretofore have been accelerated), (y) the
date such Non-payment Default and all other Non-payment Defaults as to which
notice is also given after such Payment Blockage Period is initiated shall have
been cured or waived or shall have ceased to exist or the Designated Senior
Indebtedness related thereto shall have been discharged or paid in full in cash
or Cash Equivalents or in any other manner acceptable to the requisite holders
of such Designated Senior Indebtedness or (z) the date on which such Payment
Blockage Period (and all Non-Payment Defaults as to which notice is given after
such Payment Blockage Period is initiated) shall have been terminated by
written notice to Publishing or the Trustee from the Agent or such other
representative of holders of Designated Senior Indebtedness (a "Senior
Representative"), after which, in each such case, Publishing shall resume
making any and all required payments in respect of the Securities, including
any missed payments and accrued interest thereon. Notwithstanding any other
provision of this paragraph (b), in no event shall a Payment Blockage Period
extend beyond 179 days from the date of the receipt by the Trustee of the
notice referred to in clause (2) of this paragraph (b) (such 179-day period
147
147
referred to as the "Initial Blockage Period"). Any number of notices of
Non-Payment Defaults may be given during the Initial Blockage Period; provided
that during any 365-day consecutive period only one Payment Blockage Period
during which payment of principal of, premium, if any, or interest on, the
Securities may not be made may commence and the duration of such Payment
Blockage Period may not exceed 179 days. No Non-payment Default with respect
to Designated Senior Indebtedness which existed or was continuing on the date
of the commencement of any Payment Blockage Period will be, or can be, made the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such Non-payment Default shall
have been cured or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, Publishing shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be paid over and delivered forthwith to a Senior Representative of the holders
of the Designated Senior Indebtedness or as a court of competent jurisdiction
shall direct and until so paid shall be held in trust for the benefit of the
holders of Senior Indebtedness.
SECTION 12.04. Payment Permitted if No Default. Nothing contained in this
Article, elsewhere in this Indenture or in any of the Securities shall prevent
Publishing, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of Publishing referred
to in Section 12.02 or under the conditions described in Section 12.03, from
making payments at any time of principal of, premium, if any, or interest on
the Securities in accordance with the terms of this Indenture.
SECTION 12.05. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash or Cash
Equivalents or in any other manner acceptable to the requisite holders of
Designated Senior Indebtedness, the Holders of the Securities shall be
subrogated to the rights of the holders of all Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest on
the Securities shall be paid in full.
148
148
For purposes of such subrogation, no payments or distributions to the holders
of Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article
to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among Publishing, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by Publishing to or on account of the Senior Indebtedness.
SECTION 12.06. Provisions Solely To Define Relative Rights. The provisions
of this Article are intended solely for the purpose of defining the relative
rights of the Holders of the Securities on the one hand and the holders of
Senior Indebtedness on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among Publishing, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the obligation of Publishing,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against Publishing of the Holders of the Securities
and creditors of Publishing other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling
of assets and liabilities of Publishing referred to in Section 12.02, to
receive, pursuant to and in accordance with such Section, cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 12.03, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section
12.03(c).
SECTION 12.07. Trustee To Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and
149
149
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of Publishing whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of Publishing owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file a proper claim at least 30 days before the expiration of the time
to file such claim, then the holders of Senior Indebtedness, and their agents,
trustees or other representatives are authorized to do so for and on behalf of
the Holders. The Trustee shall not be liable to any Holder for failure to file
such claim unless such failure is due to its negligence or wilful misconduct.
SECTION 12.08. No Waiver of Subordination Provisions. (a) No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of Publishing or by any act or failure to act
by any such holder, or by any non-compliance by Publishing with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this Section, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (3) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against Publishing and any other Person; provided,
however, that in no event shall any such actions limit the right of the Holders
of the Securities to take any action to
150
150
accelerate the maturity of the Securities in accordance with the provisions set
forth in Article V in this Indenture or to pursue any rights or remedies
hereunder or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
SECTION 12.09. Notice to Trustee. (a) Publishing shall give prompt written
notice to the Trustee of any fact known to Publishing which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from Publishing or a holder of Senior Indebtedness or
from a Senior Representative or any trustee, fiduciary or agent therefore; and,
prior to the receipt of any such written notice, the Trustee shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any Security),
then, anything herein contained to the contrary notwithstanding but without
limiting the rights and remedies of the holders of Senior Indebtedness or any
trustee, fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date; nor
shall the Trustee be charged with knowledge of the curing of any such default
or the elimination of the act or condition preventing any such payment unless
and until the Trustee shall have received an Officers' Certificate to such
effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee by a Person representing himself to be a Senior
Representative or a holder of Senior Indebtedness (or a trustee, fiduciary or
agent therefore) to establish that such notice has been given by a Senior
Representative or a holder of Senior Indebtedness (or a trustee, fiduciary or
agent therefor); provided, however, that failure to give such notice to
151
151
Publishing shall not affect in any way the ability of the Trustee to rely on
such notice. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such Payment.
SECTION 12.10. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of Publishing referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other Indebtedness of Publishing, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article; provided that the foregoing shall apply only if
such court has been fully apprised of the provisions of this Article.
SECTION 12.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to the provisions in this Indenture regarding compensation and indemnification
of the Trustee.
152
152
SECTION 12.12. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by Publishing
and be then acting under this Indenture, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Section 12.11
shall not apply to Publishing or any Affiliate of Publishing if it or such
Affiliate acts as Paying Agent.
SECTION 12.13. No Suspension of Remedies. Nothing contained in this
Article shall limit the right of the Trustee or the Holders of Securities to
take any action to accelerate the maturity of the Securities pursuant to the
provisions described under "Events of Default" and as set forth in this
Indenture or to pursue any rights or remedies hereunder or under applicable
law, subject to the rights, if any, under this Article of the holders, from
time to time, of Senior Indebtedness to receive the cash, property or
securities receivable upon the exercise of such rights or remedies.
SECTION 12.14. Trustee's Relation to Senior Indebtedness. With respect to
the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this Article against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall, in the absence of gross negligence
or wilful misconduct, pay over or deliver to Holders, Publishing or any other
Person moneys or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
153
153
ARTICLE XIII
Satisfaction and Discharge
SECTION 13.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to surviving rights of
registration of transfer or exchange of the Securities of any Series herein
expressly provided for) and the Trustee, on demand of and at the expense of
Publishing, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all the Securities of any Series theretofore authenticated and delivered
(other than (x) lost, stolen or destroyed Securities of any Series which have
been replaced or paid as provided in Section 3.06 and (y) Securities of any
Series for whose payment United States dollars have theretofore been
irrevocably deposited in trust by Publishing and thereafter repaid to
Publishing or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(2) all Securities of any Series not theretofore delivered to the Trustee for
cancellation
(x) have become due and payable, or
(y) will become due and payable at their Stated Maturity within one year,
or
(z) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of Publishing,
and Publishing has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust an amount sufficient to pay and discharge the
entire indebtedness on the Securities of such Series not theretofore
delivered to the Trustee for cancellation, including principal of, premium,
if any, and accrued interest on the Securities of such Series at such
Maturity, Stated Maturity or Redemption Date;
154
154
(b) Publishing has paid all other sums payable hereunder by Publishing; and
(c) Publishing has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each to the effect that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with and that such satisfaction and discharge will not result in
a breach or violation of, or constitute a default under, this Indenture or a
breach or violation of any agreement relating to any Senior Indebtedness.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of Publishing to the Trustee under Section 6.07 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of Subsection (a) of this Section, the obligations of the Trustee under
Section 13.02 and the last paragraph of Section 10.03 shall survive.
SECTION 13.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 10.03, all United States dollars deposited with
the Trustee pursuant to Section 13.01 shall be held in trust and applied by it,
in accordance with the provisions of the Securities 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 of, premium, if
any, and interest on the Securities for whose payment such United States
dollars have been deposited with the Trustee.
ARTICLE XIV
Guarantee
SECTION 14.01. Xxxxxxxxx International Guarantee. For value received,
Xxxxxxxxx International, in accordance with this Article XIV, hereby
absolutely, unconditionally and irrevocably guarantees to the Trustee and the
Holders, as if Xxxxxxxxx International were the principal debtor, the punctual
payment and performance when due of all Indenture Obligations (which for
purposes of this Guarantee shall also be deemed to include all commissions,
fees, charges, costs and other expenses (including reasonable legal fees and
disbursements of one counsel) arising out of or incurred by
155
155
the Trustee or the Holders in connection with the enforcement of this
Guarantee).
SECTION 14.02. Continuing Guarantee; No Right of Set-Off; Independent
Obligation. (a) This Guarantee shall be a continuing guarantee of the payment
and performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid to the Trustee
(including the fees and expenses of its agents and counsel) or the Holders; and
this Guarantee shall not be considered as wholly or partially satisfied by the
payment or liquidation at any time or from time to time of any sum of money for
the time being due or remaining unpaid to the Trustee or the Holders.
Xxxxxxxxx International covenants and agrees to comply with all obligations,
covenants, agreements and provisions applicable to it in this Indenture
including those set forth in Article VIII and Section 10.18. Without limiting
the generality of the foregoing, Xxxxxxxxx International's liability shall
extend to all amounts which constitute part of the Indenture Obligations and
would be owed by Publishing under this Indenture and the Securities but for the
fact that they are unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving Publishing.
(b) Xxxxxxxxx International hereby guarantees that the Indenture
Obligations will be paid to the Trustee without set-off or counterclaim or
other reduction whatsoever (whether for taxes, withholding or otherwise) in
lawful currency of the United States of America.
(c) Xxxxxxxxx International guarantees that the Indenture Obligations shall
be paid strictly in accordance with their terms regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the holders of the Securities.
(d) Xxxxxxxxx International's liability to pay or perform or cause the
performance of the Indenture Obligations under this Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been given
to Xxxxxxxxx International in the manner prescribed in Section 1.06 hereof.
156
156
(e) Except as provided herein, the provisions of this Article XIV cover all
agreements between the parties hereto relative to this Guarantee and none of
the parties shall be bound by any representation, warranty or promise made by
any Person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been delivered by
Xxxxxxxxx International free of any conditions whatsoever and that no
representations, warranties or promises have been made to Xxxxxxxxx
International affecting its liabilities hereunder, and that the Trustee shall
not be bound by any representations, warranties or promises now or at any time
hereafter made by Publishing to Xxxxxxxxx International.
SECTION 14.03. Guarantee Absolute. The obligations of Xxxxxxxxx
International hereunder are independent of the obligations of Publishing under
the Securities and this Indenture and a separate action or actions may be
brought and prosecuted against Xxxxxxxxx International whether or not an action
or proceeding is brought against Publishing and whether or not Publishing is
joined in any such action or proceeding. The liability of Xxxxxxxxx
International hereunder is irrevocable, absolute and unconditional and (to the
extent permitted by law) the liability and obligations of Xxxxxxxxx
International hereunder shall not be released, discharged, mitigated, waived,
impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of any
Indebtedness or other obligation of Publishing or any other Person under this
Indenture or the Securities, or any agreement or instrument relating to any
of the foregoing;
(b) any grants of time, renewals, extensions, indulgences, releases,
discharges or modifications which the Trustee or the Holders may extend to,
or make with, Publishing, Xxxxxxxxx International or any other Person, or any
change in the time, manner or place of payment of, or in any other term of,
all or any of the Indenture Obligations, or any other amendment or waiver of,
or any consent to or departure from, this Indenture or the Securities,
including any increase or decrease in the Indenture Obligations;
(c) the taking of security from Publishing, Xxxxxxxxx International or any
other Person, and the
157
157
release, discharge or alteration of, or other dealing with, such security;
(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of
the Indenture Obligations and the obligations of Xxxxxxxxx International
hereunder;
(e) the abstention from taking security from Publishing, Xxxxxxxxx
International or any other Person or from perfecting, continuing to keep
perfected or taking advantage of any security;
(f) any loss, diminution of value or lack of enforceability of any security
received from Publishing, Xxxxxxxxx International or any other Person, and
including any other guarantees received by the Trustee;
(g) any other dealings with Publishing, Xxxxxxxxx International or any other
Person, or with any security;
(h) the Trustee's or the Holders' acceptance of or entering into any
composition with Publishing or Xxxxxxxxx International;
(i) the application by the Holders or the Trustee of all monies at any time
and from time to time received from Publishing, Xxxxxxxxx International or
any other Person on account of any indebtedness and liabilities owing by
Publishing or Xxxxxxxxx International to the Trustee or the Holders, in such
manner as the Trustee or the Holders deems best and the changing of such
application in whole or in part and at any time or from time to time, or any
manner of application of collateral, or proceeds thereof, to all or any of
the Indenture Obligations, or the manner of sale of any Collateral;
(j) the release or discharge of Publishing or Xxxxxxxxx International or of
any other Guarantor of the Securities or of any Person liable directly as
surety or otherwise by operation of law or otherwise
158
158
for the Securities, other than an express release in writing given by the
Trustee, on behalf of the Holders, of the liability and obligations of
Xxxxxxxxx International hereunder;
(k) any change in the name, business, capital structure or governing
instrument of Publishing or Xxxxxxxxx International or any refinancing or
restructuring of any of the Indenture Obligations;
(l) the sale of Publishing's or Xxxxxxxxx International's business or any
part thereof;
(m) subject to Section 14.14, any merger or consolidation, arrangement or
reorganization of Publishing, Xxxxxxxxx International, any Person resulting
from the merger or consolidation of Publishing or Xxxxxxxxx International
with any other Person or any other successor to such Person or merged or
consolidated Person or any other change in the corporate existence, structure
or ownership of Publishing or Xxxxxxxxx International;
(n) the insolvency, bankruptcy, liquidation, winding-up, dissolution,
receivership or distribution of the assets of Publishing or its assets or any
resulting discharge of any obligations of Publishing (whether voluntary or
involuntary) or of Xxxxxxxxx International or the loss of corporate
existence;
(o) subject to Section 14.14, any arrangement or plan of reorganization
affecting Publishing or Xxxxxxxxx International;
(p) any other circumstance (including any statute of limitations) that might
otherwise constitute a defense available to, or discharge of, Publishing or
Xxxxxxxxx International; or
(q) any modification, compromise, settlement or release by the Trustee, or
by operation of law or otherwise, of the Indenture Obligations or the
liability of Publishing or any other obligor under the Securities, or of any
Collateral, in whole or in part, and any refusal of payment by the Trustee,
in whole or in part, from any other obligor or other guarantor in connection
with any of the Indenture Obligations, whether or not with notice to, or
further assent by, or
159
159
any reservation of rights against, Xxxxxxxxx International.
SECTION 14.04. Right to Demand Full Performance. In the event of any
demand for payment or performance by the Trustee from Xxxxxxxxx International
hereunder, the Trustee or the Holders shall have the right to demand its full
claim and to receive all dividends or other payments in respect thereof until
the Indenture Obligations shall have been paid in full, and Xxxxxxxxx
International shall continue to be liable hereunder for any balance which may
be owing to the Trustee (including the fees and expenses of its agent and
counsel) or the Holders by Publishing under this Indenture and the Securities.
The retention by the Trustee or the Holders of any security, prior to the
realization by the Trustee or the Holders of its rights to such security upon
foreclosure thereon, shall not, as between the Trustee and Xxxxxxxxx
International, be considered as a purchase of such security, or as payment,
satisfaction or reduction of the Indenture Obligations due to the Trustee or
the Holders by Publishing or any part thereof.
SECTION 14.05. Waivers. (a) Xxxxxxxxx International hereby expressly
waives (to the extent permitted by law) notice of the acceptance of this
Guarantee and notice of the existence, renewal, extension or the
nonperformance, nonpayment, or nonobservance on the part of Publishing of any
of the terms, covenants, conditions and provisions of this Indenture or the
Securities or any other notice whatsoever to or upon Publishing or Xxxxxxxxx
International with respect to the Indenture Obligations. Xxxxxxxxx
International hereby acknowledges communication to it of the terms of this
Indenture and the Securities and all of the provisions therein contained and
consents to and approves the same. Xxxxxxxxx International hereby expressly
waives (to the extent permitted by law) diligence, presentment, protest and
demand for payment.
(b) Without prejudice to any of the rights or recourses which the Trustee
or the Holders may have against Publishing, Xxxxxxxxx International hereby
expressly waives (to the extent permitted by law) any right to require the
Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or recourse against Publishing,
Xxxxxxxxx International or any other Person;
160
160
(ii) value, realize upon, or dispose of any security of Publishing or any
other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee or the Holders
may have in law or equity;
before requiring or becoming entitled to demand payment from Xxxxxxxxx
International under this Guarantee.
SECTION 14.06. Xxxxxxxxx International Remains Obligated in Event
Publishing Is No Longer Obligated to Discharge Indenture Obligations. It is
the express intention of the Trustee and Xxxxxxxxx International that if for
any reason Publishing has no legal existence, is or becomes under no legal
obligation to discharge the Indenture Obligations owing to the Trustee or the
Holders by Publishing or if any of the Indenture Obligations owing by
Publishing to the Trustee or the Holders becomes irrecoverable from Publishing
by operation of law or for any reason whatsoever, this Guarantee and the
covenants, agreements and obligations of Xxxxxxxxx International contained in
this Article XIV shall nevertheless be binding upon Xxxxxxxxx International, as
principal debtor, until such time as all such Indenture Obligations have been
paid in full to the Trustee and all Indenture Obligations owing to the Trustee
or the Holders by Publishing have been discharged, or such earlier time as
Section 4.02 shall apply to the Securities and Xxxxxxxxx International shall be
responsible for the payment thereof to the Trustee or the Holders upon demand.
SECTION 14.07. Waiver of Rights. Xxxxxxxxx International agrees (to the
extent permitted by law) that it hereby waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, exoneration, contribution, indemnity or subrogation (whether
contractual, under Section 509 of Title Eleven of the United States Code, under
common law or otherwise) or any similar rights or "claims" (as such term is
defined under Title Eleven of the United States Code), against Publishing or
any Restricted Subsidiary arising from the existence of, or performance by,
Xxxxxxxxx International under this Guarantee.
SECTION 14.08. Guarantee Is in Addition to Other Security. This Guarantee
shall be in addition to and not in substitution for any other guarantees or
other security
161
161
which the Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by Publishing and (except as
may be required by law) the Trustee shall be under no obligation to marshal in
favor of Xxxxxxxxx International any other guarantees or other security or any
moneys or other assets which the Trustee may be entitled to receive or upon
which the Trustee or the Holders may have a claim.
SECTION 14.09. Release of Security Interests. Without limiting the
generality of the foregoing and except as otherwise provided in this Indenture,
Xxxxxxxxx International hereby consents and agrees, to the fullest extent
permitted by applicable law, that the rights of the Trustee hereunder, and the
liability of Xxxxxxxxx International hereunder, shall not be affected by any
and all releases for any purpose of any Collateral, if any, from the Liens and
security interests created by any document relating thereto and that this
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Indenture Obligations is rescinded or
must otherwise be returned by the Trustee upon the insolvency, bankruptcy or
reorganization of Publishing or otherwise, all as though such payment had not
been made.
SECTION 14.10. No Bar to Further Actions. Except as provided by law, no
action or proceeding brought or instituted under Article XIV and this Guarantee
and no recovery or judgment in pursuance thereof shall be a bar or defense to
any further action or proceeding which may be brought under Article XIV and
this Guarantee by reason of any further default or defaults under Article XIV
and this Guarantee or in the payment of any of the Indenture Obligations owing
by Publishing.
SECTION 14.11. Failure to Exercise Rights Shall Not Operate as a Waiver; No
Suspension of Remedies. (a) No failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article XIV and this Guarantee shall operate as
a waiver thereof, nor shall any single or partial exercise of any rights,
power, privilege or remedy preclude any other or further exercise thereof, or
the exercise of any other rights, powers, privileges or remedies. The rights
and remedies herein provided for are cumulative and not exclusive of any rights
or remedies provided in law or equity.
162
162
(b) Nothing contained in this Article XIV shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article V or to pursue any rights or remedies hereunder
or under applicable law.
SECTION 14.12. Trustee's Duties; Notice to Trustee. (a) Any provision in
this Article XIV or elsewhere in this Indenture allowing the Trustee to request
any information or to take any action authorized by, or on behalf of Xxxxxxxxx
International, shall be permissive and shall not be obligatory on the Trustee
except as the Holders may direct in accordance with the provisions of this
Indenture.
(b) The Trustee shall not be required to inquire into the existence, powers
or capacities of Publishing, Xxxxxxxxx International or the officers, directors
or agents acting or purporting to act on their respective behalf.
(c) Notwithstanding the provisions of this Article XIV or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from Xxxxxxxxx International; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.01, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Responsible Officer of the
Trustee shall not have received any such notice from Xxxxxxxxx International at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within three Business
Days prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition
preventing any such payment unless and until the Responsible Officer of the
Trustee shall have received an Officers' Certificate to such effect.
163
163
(d) In the case at any time any Paying Agent other than the Trustee shall
have been appointed by Publishing and be then acting hereunder, the term
"Trustee" as used in this Article XIV shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XIV in addition to or in place of the
Trustee; provided, however, that this Section 14.12 shall not apply to
Publishing or any Affiliate of Publishing if Publishing or such Affiliate acts
as Paying Agent.
SECTION 14.13. Successors and Assigns. All terms, agreements and
conditions of this Article XIV shall extend to and be binding upon Xxxxxxxxx
International and its successors and permitted assigns and shall enure to the
benefit of and may be enforced by the Trustee and its successors and assigns;
provided, however, that Xxxxxxxxx International may not assign any of its
rights or obligations hereunder other than in accordance with Article VIII.
SECTION 14.14. Release of Guarantee. Concurrently with the payment in full
of all of the Indenture Obligations, Xxxxxxxxx International shall be released
from and relieved of its obligations under this Article XIV. Upon the delivery
by Publishing to the Trustee of an Officer's Certificate and, if requested by
the Trustee, an Opinion of Counsel to the effect that the transaction giving
rise to the release of this Guarantee was made by Publishing in accordance with
the provisions of this Indenture and the Securities, the Trustee shall execute
any documents reasonably required in order to evidence the release of Xxxxxxxxx
International from its obligations under this Guarantee. If any of the
Indenture Obligations are revived and reinstated after the termination of this
Guarantee, then all of the obligations of Xxxxxxxxx International under this
Guarantee shall be revived and reinstated as if this Guarantee had not been
terminated until such time as the Indenture Obligations are paid in full, and
Xxxxxxxxx International shall enter into an amendment to this Guarantee,
reasonably satisfactory to the Trustee, evidencing such revival and
reinstatement.
This Guarantee shall terminate (a) upon a merger or consolidation of
Xxxxxxxxx International with Publishing, in accordance with Article VIII or (b)
if after giving effect to a transaction or transactions permitted to be
164
164
consummated pursuant to Article VIII, Xxxxxxxxx International no longer owns
any Capital Stock of Publishing.
SECTION 14.15. Execution of Guarantee. To evidence the Guarantee,
Xxxxxxxxx International hereby agrees to execute a guarantee substantially in
the form set forth in Section 2.05, to be endorsed on each Security
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of Xxxxxxxxx International by its Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
SECTION 14.16. Guarantee Subordinate to Senior Guarantor Indebtedness.
Xxxxxxxxx International covenants and agrees, and each Holder of a security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, this Guarantee is hereby
made subordinate and subject in right of payment as provided in this Article to
the prior payment in full, in cash or Cash Equivalents of all Senior Guarantor
Indebtedness; provided, however, that the Indebtedness represented by this
Guarantee in all respects shall rank equally with, or prior to, all existing
and future unsecured Indebtedness of Xxxxxxxxx International that is
subordinated to Senior Guarantor Indebtedness.
This Article XIV shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold Senior
Guarantor Indebtedness; and such provisions are made for the benefit of the
holders of Senior Guarantor Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such provisions.
SECTION 14.17. Payment Over of Proceeds Upon Dissolution of Xxxxxxxxx
International, etc. In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to Xxxxxxxxx International
or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of Xxxxxxxxx International, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c)
any assignment for the benefit of
165
165
creditors or any other marshaling of assets or liabilities of Xxxxxxxxx
International, then and in any such event:
(1) the holders of Senior Guarantor Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents of all amounts due on or
in respect of all Senior Guarantor Indebtedness, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind or
character (excluding Permitted Guarantor Junior Securities) on account of
principal of, premium, if any, or interest on the Securities (including any
payment or other distribution which may be received from the holders of
Subordinated Guarantor Indebtedness as a result of any payment on such
Subordinated Guarantor Indebtedness); and
(2) any payment or distribution of assets of Publishing of any kind or
character, whether in cash, property or securities (excluding Permitted
Junior Guarantor Securities), by set-off or otherwise, to which the Holders
or the Trustee would be entitled but for the provisions of this Article shall
be paid by the liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Guarantor
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such Senior Guarantor Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the Senior Guarantor
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash or Cash Equivalents or in any other form acceptable
to the requisite holders of Designated Senior Guarantor Indebtedness, of all
Senior Guarantor Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Guarantor
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of Publishing of any kind or character,
whether in cash, property or securities, in respect of principal, premium, if
any, and interest on the Securities before all Senior Guarantor Indebtedness
is paid in full, then and in
166
166
such event such payment or distribution (excluding Permitted Guarantor Junior
Securities) (including any payment or other distribution which may be
received from the holders of Subordinated Indebtedness as a result of any
payment on such Subordinated Indebtedness) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of Publishing for application to the payment of all Senior Guarantor
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Guarantor Indebtedness in full in cash or Cash Equivalents after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Guarantor Indebtedness and until so paid shall be held in trust for
the benefit of the holders of Senior Guarantor Indebtedness.
The consolidation of Xxxxxxxxx International with, or the merger of
Xxxxxxxxx International with or into, another Person or the liquidation or
dissolution of Xxxxxxxxx International following the conveyance, transfer or
lease of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of Xxxxxxxxx
International for the purposes of this Section if the Person formed by such
consolidation or the surviving entity of such merger or the Person which
acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in Article VIII.
SECTION 14.18. Default on Senior Guarantor Indebtedness. (a) Upon the
maturity of any Senior Guarantor Indebtedness by lapse of time, acceleration or
otherwise, all principal thereof and interest thereon and other amounts due in
connection therewith shall first be paid in full in cash or Cash Equivalents or
such payment duly provided for before any payment is made by Xxxxxxxxx
International or any Person acting on behalf of Xxxxxxxxx International in
respect of the Securities.
(b) No payment (excluding payments in the form of Permitted Guarantor
Junior Securities) shall be made by
167
167
Xxxxxxxxx International in respect of the Securities by Xxxxxxxxx International
during the period in which Section 14.17 shall be applicable, during any
suspension of payments in effect under Section 12.03(a) of this Indenture or
during any Payment Blockage Period in effect under Section 12.03(b) of this
Indenture.
(c) In the event that, notwithstanding the foregoing, Xxxxxxxxx
International shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section, then and in
such event such payment shall be paid over and delivered forthwith to the
representatives of Senior Guarantor Indebtedness or as a court of competent
jurisdiction shall direct and until so paid shall be held in trust for the
benefit of the holders of Senior Indebtedness.
SECTION 14.19. Payment Permitted by Xxxxxxxxx International if No Default.
Nothing contained in this Article, elsewhere in this Indenture or in any of the
Securities shall prevent Xxxxxxxxx International, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of Publishing referred to in Section 14.17 or under the conditions
described in Section 14.18, from making payments at any time of principal of,
premium, if any, or interest on the Securities.
SECTION 14.20. Subrogation to Rights of Holders of Senior Guarantor
Indebtedness. Subject to the payment in full of all Senior Guarantor
Indebtedness, the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Guarantor Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Guarantor Indebtedness until the principal of, premium, if any, and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Guarantor Indebtedness of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Guarantor Indebtedness by Holders of the Securities or the Trustee,
shall, as among Xxxxxxxxx International, its creditors other than holders of
Senior Guarantor Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by
168
168
Xxxxxxxxx International to or on account of the Senior Guarantor Indebtedness.
SECTION 14.21. Provisions Solely to Define Relative Rights. The provisions
of Sections 14.16 through 14.29 of this Indenture are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Guarantor Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among Xxxxxxxxx
International, its creditors other than holders of Senior Guarantor
Indebtedness and the Holders of the Securities, the obligation of Xxxxxxxxx
International, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against Xxxxxxxxx International
of the Holders of the Securities and creditors of Xxxxxxxxx International other
than the holders of Senior Guarantor Indebtedness; or (c) prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Guarantor Indebtedness (1) in
any case, proceeding, dissolution, liquidation or other winding up, assignment
for the benefit of creditors or other marshaling of assets and liabilities of
Xxxxxxxxx International referred to in Section 14.17, to receive, pursuant to
and in accordance with such Section, cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 14.18, to prevent any payment prohibited by
such Section or enforce their rights pursuant to Section 14.18(c).
SECTION 14.22. Trustee to Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of Xxxxxxxxx
International whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of
169
169
Xxxxxxxxx International owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file a proper claim at least 30 days before the expiration of the time to
file such claim, then the holders of Senior Guarantor Indebtedness, and their
agents, trustees or other representative are authorized to do so on behalf of
the Holders.
SECTION 14.23. No Waiver of Subordination Provisions. (a) No right of any
present or future holder of any Senior Guarantor Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of Publishing or by any act
or failure to act by any such holder, or by any noncompliance by Xxxxxxxxx
International with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of Subsection (a) of this Section, the
holders of Senior Guarantor Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Guarantor Indebtedness, do any one or more of the following: (1) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Senior Guarantor Indebtedness or any instrument evidencing the
same or any agreement under which Senior Guarantor Indebtedness is outstanding;
(2) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Guarantor Indebtedness; (3) release any
Person liable in any manner for the collection or payment of Senior Guarantor
Indebtedness; and (4) exercise or refrain from exercising any rights against
Xxxxxxxxx International and any other Person; provided, however, that in no
event shall any such actions limit the right of the Holders of the Securities
to take any action to accelerate the maturity of the Securities in accordance
with provisions described under "Events of Default" and as set forth pursuant
to Article V in this Indenture or to pursue any rights or remedies hereunder or
under applicable laws if the taking of such action does not otherwise violate
the terms of this Article.
170
170
SECTION 14.24. Notice to Trustee by Xxxxxxxxx International. (a) Xxxxxxxxx
International shall give prompt written notice to the Trustee of any fact known
to Xxxxxxxxx International which would prohibit the making of any payment to or
by the Trustee in respect of the Guarantee. Notwithstanding the provisions of
this Article or any provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from Xxxxxxxxx
International or a holder of Senior Guarantor Indebtedness or from a Senior
Guarantor Representative or any trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the Trustee shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any Security),
then, anything herein contained to the contrary notwithstanding but without
limiting the rights and remedies of the holders of Senior Guarantor
Indebtedness or any trustee, fiduciary or agent thereof, the Trustee shall have
full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it two Business Days prior to
such date; nor shall the Trustee be charged with knowledge of the curing of any
such default or the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an officers'
certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and Xxxxxxxxx International by a Person
representing himself to be a Senior Guarantor Representative or a holder of
Senior Guarantor Indebtedness (or a trustee, fiduciary or agent therefor) to
establish that such notice has been given by a Senior Guarantor Representative
or a holder of Senior Guarantor Indebtedness (or a trustee, fiduciary or agent
therefor); provided, however, that failure to give such notice to Publishing
shall not affect in any way the ability of the Trustee to rely on such notice.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a
171
171
holder of Senior Guarantor Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Guarantor Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 14.25. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of Xxxxxxxxx International
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior
Guarantor Indebtedness and other indebtedness of Xxxxxxxxx International, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article; provided that
the foregoing shall apply only if such court has been fully apprised of the
provisions of this Article.
SECTION 14.26. Rights of Trustee as a Holder of Senior Guarantor
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Guarantor Indebtedness which may at any time be held by
it, to the same extent as any other holder of Senior Guarantor Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to the provisions in this Indenture regarding
compensation and indemnification of the Trustee.
172
172
SECTION 14.27. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by Publishing
and be then acting under this Indenture, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Section 14.26
shall not apply to Publishing or any Affiliate of Publishing if it or such
Affiliate acts as Paying Agent.
SECTION 14.28. No Suspension of Remedies. Nothing contained in this
Article shall limit the right of the Trustee or the Holders of Securities to
take any action to accelerate the maturity of the Securities pursuant to
Article V of this Indenture or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article of the
holders, from time to time, of Senior Guarantor Indebtedness to receive the
cash, property or securities receivable upon the exercise of such rights or
remedies.
SECTION 14.29. Trustee's Relation to Senior Guarantor Indebtedness. With
respect to the holders of Senior Guarantor Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Guarantor Indebtedness shall be read into
this Article against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Guarantor Indebtedness an d the Trustee
shall not be liable to any holder of Senior Guarantor Indebtedness if it shall
mistakenly in the absence of gross negligence or wilful misconduct pay over or
deliver to Holders, Publishing or any other Person moneys or assets to which
any holder of Senior Guarantor Indebtedness shall be entitled by virtue of this
Article or otherwise.
* * * *
173
173
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
by
-------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
XXXXXXXXX INTERNATIONAL INC.,
solely in its capacity as
Guarantor
by
-------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
FLEET NATIONAL BANK OF
CONNECTICUT
by
-------------------------
Name:
Title:
