Exhibit 4.1
================================================================================
World Color Press, Inc.
$300,000,000
8-3/8% Senior Subordinated Notes due 2008
-------------
INDENTURE
Dated as of November 20, 1998
-------------
The Bank of New York
Trustee
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions.................................................1
Section 1.2 Other Definitions..........................................17
Section 1.3 Incorporation by Reference of Trust Indenture Act..........17
Section 1.4 Rules of Construction......................................18
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating............................................19
Section 2.2 Execution and Authentication...............................19
Section 2.3 Registrar and Paying Agent.................................20
Section 2.4 Paying Agent to Hold Assets in Trust.......................21
Section 2.5 Holder Lists...............................................22
Section 2.6 Transfer and Exchange......................................22
Section 2.7 Replacement Securities.....................................31
Section 2.8 Outstanding Securities.....................................32
Section 2.9 Treasury Securities........................................32
Section 2.10 Temporary Securities.......................................33
Section 2.11 Cancellation...............................................33
Section 2.12 Defaulted Interest.........................................33
Section 2.13 CUSIP Numbers..............................................34
ARTICLE III
OPTIONAL REDEMPTION
Section 3.1 Notices to Trustee.........................................34
Section 3.2 Selection of Securities to be Redeemed.....................34
Section 3.3 Notice of Redemption.......................................35
Section 3.4 Effect of Notice of Redemption.............................36
Section 3.5 Deposit of Redemption Price................................36
Section 3.6 Securities Redeemed in Part................................37
Section 3.7 Optional Redemption........................................37
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities......................................38
Section 4.2 Maintenance of Office or Agency............................38
Section 4.3 SEC Reports; Financial Statements..........................39
Section 4.4 Compliance Certificate; Notice of Default..................39
Section 4.5 Payment of Taxes and Other Claims..........................40
Section 4.6 Waiver of Stay, Extension and Usury Laws...................41
Section 4.7 Limitations on Restricted Payments.........................41
Section 4.8 Dividends and Payment Restrictions.........................44
Section 4.9 Incurrence of Indebtedness.................................45
Section 4.10 Limitation on Sales of Assets..............................47
Section 4.11 Transactions With Affiliates...............................51
Section 4.12 Limitations on Liens.......................................52
Section 4.13 Investments in Unrestricted Subsidiaries...................52
Section 4.14 Corporate Existence........................................53
Section 4.15 Limitation on Other Subordinated Indebtedness..............53
ARTICLE V
SUCCESSORS
Section 5.1 Merger, Consolidation, or Sale of Assets...................54
Section 5.2 Opinion of Counsel to Trustee; Officers' Certificate.......55
Section 5.3 Successor Corporation Substituted..........................55
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default..........................................56
Section 6.2 Acceleration...............................................58
Section 6.3 Other Remedies.............................................60
Section 6.4 Waiver of Past Defaults....................................60
Section 6.5 Control By Majority........................................61
Section 6.6 Limitations On Suits.......................................61
Section 6.7 Rights of Holders To Receive Payment.......................62
Section 6.8 Collection Suit By Trustee.................................62
Section 6.9 Trustee May File Proofs of Claim...........................62
Section 6.10 Priorities.................................................63
ii
Section 6.11 Undertaking For Costs......................................64
Section 6.12 Rights and Remedies Cumulative.............................64
Section 6.13 Delay or Omission Not Waiver...............................64
Section 6.14 Restoration of Rights and Remedies.........................64
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee..........................................65
Section 7.2 Rights of Trustee..........................................66
Section 7.3 Individual Rights of Trustee...............................68
Section 7.4 Trustee's Disclaimer.......................................68
Section 7.5 Notice of Default..........................................68
Section 7.6 Reports by Trustee to Holders..............................68
Section 7.7 Compensation and Indemnity.................................69
Section 7.8 Replacement of Trustee.....................................70
Section 7.9 Successor Trustee by Merger, Etc...........................71
Section 7.10 Eligibility; Disqualification..............................71
Section 7.11 Preferential Collection of Claims against Company..........71
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance...72
Section 8.2 Legal Defeasance and Discharge.............................72
Section 8.3 Covenant Defeasance........................................73
Section 8.4 Conditions to Legal or Covenant Defeasance.................73
Section 8.5 Deposited Cash and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions...........75
Section 8.6 Repayment to the Company...................................75
Section 8.7 Reinstatement..............................................76
Section 9.1 Supplement Indentures Without Consent of Holders...........77
Section 9.2 Amendments, Supplemental Indentures and Waivers
with Consent of Holders....................................77
Section 9.3 Compliance with TIA........................................79
Section 9.4 Revocation and Effect of Consents..........................79
iii
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.5 Notation on or Exchange of Securities......................80
Section 9.6 Trustee to Sign Amendments, Etc............................81
ARTICLE X
SUBORDINATION
Section 10.1 Securities Subordinated to Senior Indebtedness.............81
Section 10.2 No Payment on Securities in Certain Circumstances..........81
Section 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorgani-
zation of Company..........................................83
Section 10.4 Holders to Be Subrogated to Rights of Holders of
Senior Indebtedness........................................84
Section 10.5 Obligations of the Company Unconditional...................85
Section 10.6 Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice.......................................86
Section 10.7 Subordination Rights Not Impaired by Acts or Omis-
sions of Company or Holders of Senior Indebtedness.........86
Section 10.8 Holders Authorize Trustee to Effectuate Subordination
of Securities..............................................87
Section 10.9 Right of Trustee to Hold Senior Indebtedness...............87
Section 10.10 Article Ten Not to Prevent Events of Default...............88
Section 10.11 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness...............................................88
Section 11.1 Trust Indenture Act Controls...............................88
Section 11.2 Notices....................................................88
Section 11.3 Communication by Holders With Other Holders................90
Section 11.4 Certificate and Opinion as to Conditions Precedent.........90
Section 11.5 Statements Required in Certificate or Opinion..............90
Section 11.6 Rules by Trustee, Paying Agent, Registrar..................91
Section 11.7 Legal Holidays.............................................91
Section 11.8 No Recourse Against Others.................................91
Section 11.9 Governing Law..............................................91
Section 11.10 No Adverse Interpretation of Other Agreements..............92
Section 11.11 Successors.................................................92
Section 11.12 Counterpart Originals......................................92
iv
ARTICLE XI
MISCELLANEOUS
Section 11.13 Table of Contents, Headings, etc...........................93
Section 11.14 Severability...............................................93
Section 11.15 Qualification of Indenture.................................93
Section 11.16 Registration Rights........................................93
SIGNATURES
EXHIBIT A FORM OF SECURITY
v
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
--------------- ---------
310 (a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.**
(a)(4)................................................... N.A.
(b)...................................................... 7.8; 7.10; 12.2
(c)...................................................... N.A.
311 (a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312 (a)...................................................... 2.5
(b)...................................................... 11.3
(c)...................................................... 11.3
313 (a)...................................................... 7.6
(b)(1)................................................... N.A.
(b)(2)................................................... 7.6
(c)...................................................... 7.6; 11.2
(d)...................................................... 7.6
314 (a)...................................................... 4.3; 11.2
(b)...................................................... N.A.
(c)(1)................................................... 12.4
(c)(2)................................................... 12.4
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 11.5
(f)...................................................... N.A.
315 (a)...................................................... 7.1(2)
(b)...................................................... 7.5; 12.2
(c)...................................................... 7.1(1)
(d)...................................................... 7.1(3)
(e)...................................................... 6.11
316 (a)(last sentence)....................................... 2.9
(a)(1)(A)................................................ 6.5
(a)(1)(B)................................................ 6.4
(a)(2)................................................... N.A.
(b)...................................................... 6.7
(c)...................................................... 9.4
317 (a)(1)................................................... 6.8
--------
* This Cross-Reference Table is not part of the Indenture.
** N.A. means not applicable.
vi
(a)(2)................................................... 6.9
(b)...................................................... 2.4
318 (a)...................................................... 11.1
vii
INDENTURE, dated as of November 20, 1998, among World Color Press,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders (as defined below) of the
Company's 8-3/8% Senior Subordinated Notes due 2008 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 DEFINITIONS.
"ADJUSTED CONSOLIDATED NET INCOME" means, with respect to any Person
for any period, (i) the Consolidated Net Income of such Person for such period,
plus (ii) in the case of the Company and its Restricted Subsidiaries, all cash
received during such period by the Company or any Restricted Subsidiary from its
Unrestricted Subsidiaries from the payment of dividends or distributions
(including tax sharing payments and loans or advances which are junior in right
of payment to the Securities and have a longer Average Life than the
Securities), but only to the extent such cash payments are not otherwise
included in "Adjusted Consolidated Net Income." Each item of Adjusted
Consolidated Net Income will be determined in conformity with GAAP, except that,
for purposes of the application of Accounting Principles Board Opinions Nos. 16
and 17, such Person may select any amortization practice allowable by GAAP up to
40 years, notwithstanding the use of a different amortization in such Person's
consolidated financial statements. Any designation of a Subsidiary of the
Company as a Restricted Subsidiary or Unrestricted Subsidiary at or prior to the
time of the calculation of Adjusted Consolidated Net Income of a Subsidiary will
be treated as if it had occurred at the beginning of the applicable period.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled by,"
and "under common control with") another Person if the controlling Person
possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of the controlled
Person, whether through ownership of voting securities, by agreement or
otherwise.
"AGENT" means any authenticating agent, Registrar, Paying Agent or
transfer agent.
"ASSET SALE" means, with respect to any Person, in one or a series
of related transactions, the sale, lease, conveyance, disposition or other
transfer by the referent Person of any of its assets (including by way of a
sale-and-leaseback and including the sale or other transfer or issuance of any
Capital Stock of any Subsidiary of the referent Person); PROVIDED that
notwithstanding the foregoing, the term "Asset Sale" shall not include the sale,
lease, conveyance, disposition or other transfer of (i) all or substantially all
of the assets of the Company, as permitted pursuant to Section 5.1 hereof, (ii)
any assets between the Company or any Restricted Subsidiary, (iii) any sale,
conveyance, disposition or other transfer or (A) cash and cash equivalents, (B)
inventory in the ordinary course of business and (C) any other tangible or
intangible asset, in each case in the ordinary course of business of the Company
or its Restricted Subsidiaries, or (iv) the sale or discount, in each case
without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof.
"AVERAGE LIFE" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (i) the sum of
the products of the number of years from the date of determination to the dates
of each successive scheduled principal payment or, in the case of Redeemable
Stock, each successive scheduled mandatory redemption payment of such security
or instrument multiplied by the amount of such principal payment or, in the case
of Redeemable Stock, such mandatory redemption payment, by (ii) the sum of all
such principal payments or, in the case of Redeemable Stock, mandatory
redemption payments.
"BANKRUPTCY LAW" means Title 11, U.S. Code, as amended, or any
similar federal, state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
2
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
which would at such time be required to be capitalized on the balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"CASH EQUIVALENTS" means (i) securities 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) time deposits and
certificates of deposit of any domestic commercial bank of recognized standing
having capital and surplus in excess of $500.0 million or a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development and having total assets in
excess of $500.0 million with a maturity date not more than one-year from the
date of acquisition, (iii) repurchase obligations with a term of not more than 7
days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (ii)
above, (iv) commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 and commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (v) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) through (iv) above.
"COMMON STOCK" means the common stock, par value $0.01 per share,
of the Company.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and
thereafter means such successor.
3
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Adjusted Consolidated Net Income of such Person for such period PLUS
(a) provision for taxes based on income or profits to the extent such provision
for taxes was included in computing Adjusted Consolidated Net Income, PLUS (b)
consolidated Interest Expense, whether paid or accrued, to the extent such
expense was deducted in computing Adjusted Consolidated Net Income (including
amortization of original issue discount and non-cash interest payments), PLUS
(c) (depreciation, amortization and other non-cash charges to the extent such
depreciation, amortization and other non-cash charges were deducted in computing
Adjusted Consolidated Net Income (including amortization of goodwill and other
intangibles); PROVIDED, with respect to the calculation of the Company's Fixed
Charge Coverage Ratio, that if, during such period, (i) such Person or any of
its Subsidiaries shall have made any Asset Sales (other than in the case of the
Company and its Subsidiaries, sales of the Capital Stock of or any assets of
Unrestricted Subsidiaries which constitute Asset Sales), Consolidated Cash Flow
of such Person and its Subsidiaries for such period shall be reduced by an
amount equal to the Consolidated Cash Flow (if positive), to the extent such
Consolidated Cash Flow was included in computing Consolidated Cash Flow,
directly attributable to the assets or Capital Stock which are the subject of
such Asset Sales for such period or increased by an amount equal to the
Consolidated Cash Flow (if negative), to the extent such Consolidated Cash Flow
was included in computing Consolidated Cash Flow, directly attributable thereto
for such period and (ii) such Person or any of its Subsidiaries (other than, in
the case of the Company and its Subsidiaries, Unrestricted Subsidiaries) has
made any acquisition of assets or Capital Stock (occurring by merger or
otherwise), including, without limitation, any acquisition of assets or Capital
Stock occurring in connection with a transaction causing a calculation to be
made hereunder, Consolidated Cash Flow of such Person and its Subsidiaries shall
be calculated (notwithstanding clause (ii) of the definition of Consolidated Net
Income), excluding any expenses which, in the good faith estimate of management,
will be eliminated as a result of such acquisition, as if such acquisition of
assets or Capital Stock (including the incurrence of any Indebtedness in
connection with any such acquisition and the application of the proceeds
thereof) took place on the first day of such period.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person for
any period, the (a) consolidated Interest Expense, whether paid or accrued, to
the extent such expense was deducted in computing Adjusted Consolidated Net
Income (including amortization of original issue discount and non-cash interest
payments) and (b) amount of all cash dividend payments on all series of
preferred stock, other than cash dividends on preferred stock of Unrestricted
Subsidiaries and cash dividends paid to such Person
4
or its Subsidiaries (other than in the case of the Company and its Restricted
Subsidiaries, Unrestricted Subsidiaries); PROVIDED that if, during such period
(i) such Person or any of its Subsidiaries shall have made any Asset Sales
(other than in the case of the Company and its Subsidiaries, sales of the
Capital Stock of or any assets of Unrestricted Subsidiaries which constitute
Asset Sales), Consolidated Fixed Charges of such Person and its Subsidiaries for
such period shall be reduced by an amount equal to the Consolidated Fixed
Charges directly attributable to the assets which are the subject of such Asset
Sales for such period and (ii) such Person or any of its Subsidiaries (other
than, in the case of the Company and its Subsidiaries, Unrestricted
Subsidiaries) has made any acquisition of assets or Capital Stock (occurring by
merger or otherwise), including, without limitation, any acquisition of assets
or Capital Stock occurring in connection with the transaction causing a
calculation to be made hereunder, Xxxxxxx dated Fixed Charges of such Person and
its Subsidiaries shall be calculated on a pro forma basis as if such acquisition
of assets or Capital Stock (including the incurrence of any Indebtedness in
connection with any such acquisition and the application of the proceeds
thereof) took place on the first day of such period.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
(other than, in the case of the Company and its Subsidiaries, Unrestricted
Subsidiaries) for such period, on a consolidated basis, determined in accordance
with GAAP, PROVIDED that (i) the net income (or loss) of any Person which is not
a Subsidiary or is accounted for by the equity method of accounting shall be
included only to the extent of the amount of cash dividends or distributions
(including tax sharing payments and loans or advances which are junior in right
of payment to the Securities and have a longer Average Life than the Securities)
paid to the referent Person or a Subsidiary of the referent Person (other than,
in the case of the Company and its Restricted Subsidiaries, Unrestricted
Subsidiaries), (ii) except to the extent includible pursuant to the foregoing
clause (i), the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of such Person or is merged into or consolidated with such
Person or any of its Subsidiaries or that Person's assets are acquired by such
Person or any of its Subsidiaries shall be excluded, (iii) any gains or losses
attributable to Asset Sales net of related tax costs or tax benefits, as the
case may be, shall be excluded, (iv) after-tax items classified as extraordinary
gains or losses shall be excluded and (v) the cumulative effect of changes in
accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, at any date of determination, the
sum of the Capital Stock and additional paid-in-capital plus retained earnings
(or minus
5
accumulated deficit) of the referent Person and its Subsidiaries on a
consolidated basis, less amounts attributable to Redeemable Stock, each item to
be determined in conformity with GAAP (excluding the effects of (i) foreign
currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52 and (ii) the application of
Accounting Principles Board Opinions No. 16 and 17 and related interpretations.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of
the Trustee specified in Section 11.2 or such other address as the Trustee may
designate from time to time.
"CREDIT AGENT" means the agent or representative of the lenders
under the Credit Facility.
"CREDIT FACILITY" means the Second Amended and Restated Credit
Agreement, dated as of June 6, 1996, as amended, by and among the Company,
certain financial institutions parties thereto and Bankers Trust Company, as
Administrative Agent, BA Securities, Inc., as Syndication Agent, and Citibank,
N.A., as Documentation Agent, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, supplemented, renewed,
refunded, refinanced, restructured or replaced from time to time (including
without limitation, any extension of maturity thereof or the inclusion of
additional borrowers or guarantors thereunder).
"CURRENCY AGREEMENT" means the obligations of any Person pursuant to
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect such Person or any of its
subsidiaries against fluctuations in currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEFAULT" means any event, act or condition that is or, after notice
or the passage of time or both, would be an Event of Default.
"DEFINITIVE SECURITIES" means Securities that are in the form of the
Security attached hereto as Exhibit A that do not include the information called
for by footnotes 1 and 5 thereof.
6
"DEPOSITARY" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"DESIGNATED SENIOR DEBT" means (i) the Senior Bank Debt and (ii) any
other Senior Indebtedness permitted under this Indenture having a principal
amount of at least $30.0 million that is designated as "Designated Senior Debt"
by written notice form the Company to the Trustee.
"DTC" shall have the meaning specified in Section 2.3.
"EQUITY INTERESTS" means Capital Stock, warrants, options or other
rights to acquire Capital Stock (but excluding any debt security which is
convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"EXCHANGE SECURITIES" means the 8-3/8% Senior Subordinated Notes due
2008 to be issued pursuant to this Indenture in connection with the offer to
exchange Securities for the Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than the Credit Facility) in existence on the Issue Date,
until such amounts are repaid.
"FIXED CHARGE COVERAGE RATIO" means the ratio of Consolidated Cash
Flow to Consolidated Fixed Charges.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession which are in effect
7
in the United States at the time when and for the period as to which such
accounting principles are to be applied.
"GLOBAL SECURITY" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 5
to the form of Security attached hereto as Exhibit A.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security
is registered. The Holder of a Security will be treated as the owner of such
Security for all purposes.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement obligations with respect
thereto) or representing the balance deferred and unpaid of the purchase price
of any property (including pursuant to financing leases), if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP (except that any such
balance that constitutes a trade payable and/or an accrued liability arising in
the ordinary course of business shall not be considered Indebtedness), and shall
also include, to the extent not otherwise included, any Capital Lease
Obligations, the maximum fixed repurchase price of any Redeemable Stock,
indebtedness secured by a Lien to which the property or assets owned or held by
such Person is subject, whether or not the obligations secured thereby shall
have been assumed, guarantees of items that would be included within this
definition to the extent of such guarantees (exclusive of whether such items
would appear upon such balance sheet), and net liabilities in respect of
Currency Agreements and Interest Rate Agreements. For purposes of the preceding
sentence, the maximum fixed repurchase price of any Redeemable Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Stock as if such Redeemable Stock were repurchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, PROVIDED that if such Redeemable Stock is not then permitted to
be repurchased, the repurchase price shall be the book value of such Redeemable
Stock. The amount of Indebtedness of any Person at any date shall be without
duplication (i) the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such contingent
obligations at such date and (ii) in the case of Indebtedness of others secured
by a Lien to which the property or assets owned or held by such Person
8
is subject, the lesser of the fair market value at such date of any asset
subject to a Lien securing the Indebtedness of others and the amount of the
Indebtedness secured.
"INDENTURE" means this Indenture as amended or supplemented from
time to time in accordance with the terms hereof.
"INITIAL PURCHASERS" means BT Alex. Xxxxx Incorporated and CIBC
Xxxxxxxxxxx Corp.
"INITIAL SECURITIES" means the 8-3/8% Senior Subordinated Notes due
2008, as supplemented from time to time in accordance with the terms hereof,
issued under this Indenture on the Issue Date.
"INTEREST EXPENSE" means, with respect to any Person, for any
period, the aggregate amount of interest in respect of Indebtedness (including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and the net cost (benefit)
associated with Interest Rate Agree ments, and excluding amortization of
deferred finance fees and interest recorded as accretion in the carrying value
of liabilities (other than Indebtedness) recorded at a discounted value) and all
but the principal component of rentals in respect of Capital Lease Obligations,
paid, accrued or scheduled to be paid or accrued by such Person during such
period.
"INTEREST PAYMENT DATE" means the stated due date of an installment
of interest on the Securities.
"INTEREST RATE AGREEMENTS" means the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement or
other similar agreement or arrangement designed to protect such Person or any of
its Subsidiaries against fluctuations in interest rates.
"INVESTMENT" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business, which are recorded as
accounts receivable on the balance sheet of any Person or its Subsidiaries) 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 or acquisition of Capital Stock,
bonds, notes, debentures or other securities issued by any other Person. For the
purposes of Sections 4.7 and 4.13
9
hereof, (i) "Investment" shall include and be valued at the fair market value of
the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary and shall exclude the fair
market value of the net assets of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) any
property transferred to or form an Unrestricted Subsidiary shall be valued at
fair market value at the time of such transfer, in each case as determined by
the Board of Directors of the Company in good faith.
"ISSUE DATE" means the date of first issuance of the Securities
hereunder.
"KKR" means Kohlberg Kravis Xxxxxxx & Co., L.P.
"LIEN" means any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give any security interest in and any filing or other
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"MATURITY DATE" means, with respect to any Security, the date on
which the principal of (and premium, if any) and interest on such Security
become due and payable as therein or herein provided, whether at Stated
Maturity, or by declaration of acceleration, call for redemption or otherwise.
"NET PROCEEDS" means, with respect to any Asset Sale, the aggregate
amount of U.S. Legal Tender (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset Sale,
other than the portion of such deferred payment constituting interest, and
including any amounts received as disbursements or withdrawals from any escrow
or similar account established in connection with any such Asset Sale, but, in
each such case, only as and when so received) received by the Company or any of
its Subsidiaries in respect of such Asset Sale, net of (i) the cash expenses of
such sale (including, without limitation, the payment of principal, premium, if
any, and interest on Indebtedness required to be paid as a result of such Asset
Sale (other than pursuant to Section 4.10(a) hereof) and legal, accounting and
investment banking fees and sales commissions), (ii) taxes paid or payable as a
result thereof, (iii) any portion of cash proceeds which the Company determines
in good faith should be reserved for post-closing adjustments, it being
understood and agreed that on the day that all such post-closing adjustments
have been
10
determined, the amount (if any) by which the reserved amount in respect of such
Asset Sale exceeds the actual post-closing adjustments payable by the Company or
any of its Subsidiaries shall constitute Net Proceeds on such date and (iv) any
relocation expenses and pension, severance and shutdown costs incurred as a
result thereof.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifica tions, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICERS" means the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller or the Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers,
one of whom must be the Company's Chief Executive Officer, Chief Financial
Officer or the Controller.
"OPINION OF COUNSEL" means a written opinion prepared in accordance
with Section 11.5 hereof, from legal counsel who is reasonably acceptable to the
Trustee. Except as specified in Section 8.4(f), the counsel may be an employee
of or counsel to the Company or the Trustee.
"PERMITTED INVESTMENTS" means (i) cash or Cash Equivalents, (ii)
investments that are in Persons at least a majority of whose revenues are
derived from commercial printing or prepress services or ancillary operations
related thereto and that have the purpose of furthering the business operations
of the Company, (iii) advances to employees not in excess of $5.0 million at any
one time outstanding, (iv) accounts receivable created or acquired in the
ordinary course of business, (v) obligations or shares of stock received in
connection with any good faith settlement or bankruptcy proceeding involving a
claim relating to a Permitted Investment, (vi) evidences of Indebtedness,
obligations or other investments not exceeding $5.0 million in the aggregate
held at any one time by the Company or any of its Restricted Subsidiaries and
(vii) Currency Agreements and other similar agreements designed to hedge against
fluctuations in foreign exchange rates entered into in the ordinary course of
business in connection with the operation of the Company's or its Subsidiaries'
businesses.
11
"PERMITTED LIENS" means (i) Liens for taxes, assessments,
governmental charges or claims which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor; (ii) statutory Liens of
landlords and carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor; (iii)
Liens incurred or deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of social
security; (iv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (v) easements,
rights-of-way, zoning or other restrictions, minor defects or irregularities in
title and other similar charges or encumbrances not interfering in any material
respect with the business of the Company or any of its Subsidiaries incurred in
the ordinary course of business; (vi) Liens (including extensions, renewals and
replacements thereof) upon real or tangible personal property acquired after the
date of this Indenture, PROVIDED that (a) any such Lien is created solely for
the purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of the item
of property subject thereto, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such cost, (c) such Lien does not
extend to or cover any other property other than such item of property and any
improvements on such item and (d) the incurrence of such Indebtedness is
permitted by Section 4.9 hereof; (vii) Liens securing reimbursement obligations
with respect to letters of credit which encumber documents and other property
relating to such letters of credit and the products and proceeds thereof; (viii)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(ix) judgment and attachment Liens not giving rise to an Event of Default; (x)
leases or subleases granted to others not interfering in any material respect
with the business of the Company or any of its Restricted Subsidiaries; (xi)
Liens encumbering customary initial deposits and margin deposits, and other
Liens incurred in the ordinary course of business and which are within the
general parameters customary in the industry, in each case securing Indebtedness
under Interest Rate Agreements and Currency Agreements; (xii) Liens encumbering
deposits made to secure obligations arising from statutory, regulatory,
contractual or warranty requirements of
12
the Company or its Subsidiaries; (xiii) Liens arising out of consignment or
similar arrangements for the sale of goods entered into by the Company or any of
its Subsidiaries in the ordinary course of business of the Company and its
Subsidiaries; (xiv) any interest or title of a lessor in the property subject to
any Capital Lease Obligation or operating lease; (xv) Liens arising from filing
Uniform Commercial Code financing statements regarding leases; (xvi) Liens
permitted by the Credit Facility as in effect on the Issue Date; (xvii) Liens
securing Indebtedness described in clause (xiv) of the second paragraph of
Section 4.9 hereof; (xviii) Liens between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries; (xix) Liens securing letters of
credit in an amount not to exceed $10 million in the aggregate at any one time;
(xx) additional Liens at any one time outstanding with respect to assets of the
Company and its Restricted Subsidiaries the fair market value of which does not
exceed $10 million on the date of determination; (xxi) Liens existing on the
Issue Date and any extensions, renewals or replacements thereof; (xxii) Liens
securing Senior Indebtedness; and (xxiiii) the Lien granted to the Trustee under
this Indenture and any substantially equivalent Lien granted to any trustee or
similar institution under any indenture for Indebtedness permitted by the terms
of this Indenture.
"PERSON" or "PERSON" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership, trust,
unincorporated association, or a government or any agency or political
subdivision thereof.
"REDEEMABLE STOCK" means any Equity Interest which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable before the stated maturity of the Securities), or upon the
happening of any event, matures or is mandatorily redeemable, in whole or in
part, prior to the stated maturity of the Securities, or is, by its terms or
upon the happening of any event, redeemable at the option of the holder thereof,
in whole or in part, at any time prior to the stated maturity of the Securities,
except for Equity Interests of the Company issued to present and former members
of management of the Company and its Subsidiaries and certain of their former
affiliates pursuant to Agreements in effect on the Issue Date and Equity
Interests of the Company issued after the Issue Date to members of management of
the Company and its Subsidiaries pursuant to agreements containing provisions
for the repurchase of such Equity Interests upon death, disability or
termination of employment of such persons which are substantially identical to
those contained in the agreements in effect on the Issue Date.
13
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 5 in the Form of Security attached as Exhibit A hereto.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to Paragraph 5
in the Form of Security, which shall include, without duplication, in each case,
accrued and unpaid interest to the Redemption Date (subject to the provisions of
Section 3.4).
"REGISTRAR" shall have the meaning specified in Section 2.3.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date by and between the Company and the Initial
Purchasers providing for certain registration rights for the Securities.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent
or representative for any Senior Indebtedness.
"RESTRICTED INVESTMENT" means any investment in, capital
contribution, loan or advance to or purchase of Equity Interests in, any Person
that is not a wholly owned Subsidiary, or other transfer of assets to
Subsidiaries or Affiliates that are not wholly owned (other than any such other
transfer of assets to Subsidiaries or Affiliates that are not wholly owned in
transactions the terms of which are fair and reasonable to the transferor and
are at least as favorable as the terms that could be obtained by the transferor
in a comparable transaction made on an arms' length basis between unaffiliated
parties (A) as conclusively determined, for any such transfer involving
aggregate consideration in excess of $5.0 million, by (i) a majority of the
directors of the transferor that are unaffiliated with the transferee or, if
there are no such directors, by a majority of the directors of the transferor or
(ii) an opinion of a nationally recognized investment banking firm stating that
such transaction is fair to the transferor from a financial point of view, and
(B) otherwise as conclusively determined by the Company), except in each case
for Permitted Investments and any such Investments existing on the Issue Date.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company which at
the time of determination is not an Unrestricted Subsidiary. The Board of
Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if, immediately after giving effect to such
designation, the Company could incur
14
at least $1.00 of additional Indebtedness pursuant to the first paragraph of
Section 4.9 hereof (without giving effect to clauses (i) through (xvii) of the
second paragraph thereof), on a PRO FORMA basis taking into account such
designation.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means, collectively, the Initial Securities and, when
and if issued as provided in the Registration Rights Agreement, the Exchange
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"SECURITIES CUSTODIAN" means the Registrar, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"SENIOR BANK DEBT" means Indebtedness and all other monetary
obligations of every nature outstanding under the Credit Facility, including
letters of credit and reimbursement obligations in respect thereof and letters
of credit and reimbursement obligations in respect of letters of credit issued
by lenders party to the Credit Facility.
"SENIOR INDEBTEDNESS" means (i) the Senior Bank Debt and (ii) any
other Indebtedness permitted to be incurred pursuant to the terms hereof, unless
the instrument under which such Indebtedness is incurred expressly provides that
it is on a parity with or subordinated in right of payment to the Securities.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
shall not include (i) Indebtedness that is expressly subordinate or junior in
right of payment to any Indebtedness of the Company, (ii) Indebtedness that is
represented by Redeemable Stock, (iii) any liability for federal, state, local
or other taxes owed or owing by the Company, (iv) Indebtedness of the Company to
any Subsidiary or any other Affiliate of the Company, (v) trade payables, (vi)
Indebtedness that is incurred in violation of this Indenture (other than Senior
Bank Debt) and (vii) the 6% Convertible Notes.
"6% CONVERTIBLE NOTES" means the Company's 6% Convertible Senior
Subordinated Notes due 2007.
15
"STATED MATURITY" means, when used with respect to any Security or
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"SUBSIDIARY" of any Person means any entity of which shares of the
Capital Stock or other equity interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to cast at least
a majority of the votes that may be cast by all shares or equity interests
having ordinary voting power for the election of directors or other governing
body of such entity are owned by such Person directly and/or through one or more
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
xx.xx. 77aaa-77bbbb).
"TRANSFER RESTRICTED SECURITIES" means Securities that bear or are
required to bear the legend set forth in Section 2.6 hereof.
"TRANSFERS" means (i) any payment of interest on Indebtedness,
dividends or repayments of loans or advances and (ii) any other transfers of
assets, in each case from an Unrestricted Subsidiary to the Company or any of
its Restricted Subsidiaries.
"TRUSTEE" means The Bank of New York until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"TRUST OFFICER" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company
which at the time of determination is an Unrestricted Subsidiary (as designated
by the Board of Directors of the Company, as provided below) and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Company
may designate any
16
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns, or holds any Lien on, any property of, any other
Subsidiary of the Company which is not a Subsidiary of the Subsidiary to be so
designated; PROVIDED that (a) the Company certifies that such designation
complies with Section 4.7 and 4.13 hereof, and (b) each Subsidiary to be so
designated and each of its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries. The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary, PROVIDED that immediately
after giving effect to such designation, the Company could incur at least $1.00
of additional Indebtedness pursuant to the Section 4.9 (without giving effect to
clauses (i) through (xvii) of the second paragraph thereof), on a PRO FORMA
basis, giving effect to such designation.
"U.S. GOVERNMENT OBLIGATIONS" means direct noncallable obligations
of or guaranteed by the United States of America for the payment of which
obligation or guarantee the full faith and credit of the United States of
America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
Section 1.2 OTHER DEFINITIONS.
Defined
Term in Section
---- ----------
"Asset Sale Payment Date"................... 4.10(a)
"Covenant Defeasance"....................... 8.3
"Excess Net Proceeds"....................... 4.10(a)
"Final Put Date" 4.10(c)
"Legal Holiday"............................. 11.7
"Legal Defeasance".......................... 8.2
"Net Proceeds Offer"........................ 4.10(b)
"Net Proceeds Offer Amount"................. 4.10(d)
"Net Proceeds Payment Date"................. 4.10(b)
17
"Paying Agent".............................. 2.3
"Payment Blockage Period"................... 10.2(a)
"Purchase Price"............................ 4.10(b)
"Registrar"................................. 2.3
"Restricted Payments"....................... 4.7
"Retired Equity Interest"................... 4.7
"Refunding Equity Interest"................. 4.7
"Surviving Entity".......................... 5.1
Section 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITYHOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company, any other obligor
upon the Securities or any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
18
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) references to Sections or Articles are to Sections or
Articles of this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
Section 2.1 FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto, which is a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage or the terms hereof. The Company shall
approve the form of Securities and any notation, legend or endorsement on them.
Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Section 2.2 EXECUTION AND AUTHENTICATION.
19
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Security for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate the Initial Securities for original
issue in the aggregate principal amount of up to $300.0 million and shall
authenticate Exchange Securities for original issue in the aggregate principal
amount of up to $300.0 million, in each case upon a written order of the Company
in the form of an Officers' Certificate, PROVIDED that such Exchange Securities
shall be issuable only upon the valid surrender for cancellation of Initial
Securities of a like aggregate principal amount in accordance with the
Registration Rights Agreement. The Officers' Certificate shall specify the
amount of Securities to be authenticated and the date on which the Securities
are to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed $300.0 million, except as provided in
Section 2.7. Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
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 an Agent to deal with the Company, any Affiliate of the Company,
or any of their respective Subsidiaries.
Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
20
Section 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or exchange ("Registrar") and an office or agency where
Securities may be presented for payment ("Paying Agent") and where notices and
demands to or upon the Company in respect of the Securities may be served. The
Company may act as Registrar or Paying Agent, except that for the purposes of
Articles III, VIII and Section 4.10 and as otherwise specified in this
Indenture, neither the Company nor any Affiliate of the Company shall act as
Paying Agent. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one or
more additional Paying Agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional Paying Agent. The Company
hereby initially appoints the Trustee as Registrar and Paying Agent, and by its
signature hereto, the Trustee hereby agrees so to act. The Company may at any
time change any Paying Agent or Registrar without notice to any Holder.
The Company shall enter into an appropriate written agency agreement
with any Agent (including the Paying Agent) not a party to this Indenture, which
agreement shall implement the provisions of this Indenture that relate to such
Agent, and shall furnish a copy of each such agreement to the Trustee. The
Company shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
The Trustee is authorized to enter into a letter of representation
with DTC in the form provided to the Trustee by the Company and to act in
accordance with such letter.
Section 2.4 PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Holders or
21
the Trustee all assets held by the Paying Agent for the payment of principal of,
premium, if any, or interest on, the Securities (whether such assets have been
distributed to it by the Company or any other obligor on the Securities), and
shall notify the Trustee in writing of any Default by the Company (or any other
obligor on the Securities) in making any such payment. If the Company or an
Affiliate of the Company acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund for the benefit of the Holders or the
Trustee. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default or any
Event of Default, upon written request to a Paying Agent, require such Paying to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent (if other than
the Company or a Subsidiary of the Company) shall have no further liability for
such assets.
Section 2.5 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee or any
Paying Agent is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and, at such other
times as the Trustee or any such Paying Agent may request in writing, a list in
such form and as of such date as the Trustee or any such Paying Agent may
reasonably require of the names and addresses of Holders and the Company shall
otherwise comply with TIA ss. 312(a).
Section 2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized denominations,
22
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Securities surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and
the Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities that
are Definitive Securities, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the name
of such Holder, without transfer, a certification from such Holder
to that effect (in substantially the form set forth on the reverse
of the Security); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (within the meaning
of Rule 144A promulgated under the Securities Act), that is aware
that any sale of Securities to it will be made in reliance on Rule
144A under the Securities Act and that is acquiring such Transfer
Restricted Security for its own account or for the account of
another such "qualified institutional buyer," a certification from
such Holder to that effect (in substantially the form set forth on
the reverse of the Security); or
(C) if such Transfer Restricted Security is being
transferred pursuant to an exemption from registration in accordance
with Rule 144, or outside the United States in an offshore
transaction in compliance with Rule 904 under the Securities Act, or
pursuant to an effective registration statement under the Securities
Act, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security); or
(D) if such Transfer Restricted Security is being
transferred to an "institutional accredited investor" within the
meaning
23
of Rule 501(A)(1), (2), (3) or (7) under the Securities Act (an
"IAI") that is acquiring the Security for its own account, or for
the account of such an IAI, not with a view to or for offer or sale
in connection with any distribution in violation of the Securities
Act, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security)
(including a letter in the form of Annex A to the Security) and, if
such transfer is in respect of an aggregate principal amount of
Securities less than $250,000, an opinion of counsel reasonably
acceptable to the Company, the Trustee and the Registrar to the
effect that such transfer is in compliance with the Securities Act;
or
(E) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the registration
requirements of the Securities Act and in accordance with all
applicable securities laws of the states of the United States, a
certification from such Holder to that effect (in substantially the
form set forth on the reverse of the Security) and an opinion of
counsel reasonably acceptable to the Company and to the Registrar to
the effect that such transfer is in compliance with the Securities
Act.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
(i)(A) if such Definitive Security is a Transfer
Restricted Security which is being transferred to a "qualified
institutional buyer" (within the meaning of Rule 144A promulgated
under the Securities Act), that is aware that any sale of Securities
to it will be made in reliance on Rule 144A under the Securities Act
and that is acquiring such Transfer Restricted Security for its own
account or for the account of another such "qualified institutional
buyer," a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security); or
24
(B) if such Definitive Security is a Transfer Restricted
Security which is being transferred outside the United States in an
offshore transaction in compliance with Rule 904 under the
Securities Act, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security); or
(C) if such Definitive Security is a Transfer Restricted
Security which is being transferred to an IAI that is acquiring the
Security for its own account, or for the account of such an IAI, not
with a view to or for offer or sale in connection with any
distribution in violation of the Securities Act, a certification
from such Holder to that effect (in substantially the form set forth
on the reverse of the Security) (including a letter in the form of
Annex A to the Security) and, if such transfer is in respect of an
aggregate principal amount of Securities less than $250,000, an
opinion of counsel reasonably acceptable to the Company, the Trustee
and the Registrar to the effect that such transfer is in compliance
with the Securities Act; and
(ii) whether or not such Definitive Security is a
Transfer Restricted Security, written instructions directing the Trustee
to make, or to direct the Securities Custodian to make, an endorsement on
the applicable Global Security (the "Applicable Global Security") to
reflect an increase in the aggregate principal amount of the Securities
represented by the Applicable Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Applicable Global
Security to be increased accordingly. If an Applicable Global Security is not
then outstanding, the Company shall issue and the Trustee shall authenticate a
new Global Security in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor.
25
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR
A DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive Security. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depositary,
from the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Global Security, and upon receipt by the Trustee
of a written instruction or such other form of instructions as is
customary for the Depositary or the Person designated by the Depositary as
having such a beneficial interest in a Transfer Restricted Security only,
the following additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being transferred to
the Person designated by the Depositary as being the beneficial
owner, a certification from the transferor to that effect (in
substantially the form set forth on the reverse of the Security); or
(B) if such beneficial interest is being transferred to
a "qualified institutional buyer" (within the meaning of Rule 144A
promulgated under the Securities Act), that is aware that any sale
of Securities to it will be made in reliance on Rule 144A under the
Securities Act and that is acquiring such beneficial interest in the
Transfer Restricted Security for its own account or the account of
another such "qualified institutional buyer", a certification to
that effect from the transferor (in substantially the form set forth
on the reverse of the Security); or
(C) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with Rule
144, or outside the United States in an offshore transaction in
compliance with Rule 904 under the Securities Act, or pursuant to an
effective registration statement under the Securities Act, a
certification from the transferor to that effect (in substantially
the form set forth on the reverse of the Security);
26
(D) if such beneficial interest is being transferred to
an IAI that is acquiring the Security for its own account, or for
the account of such an IAI, not with a view to or for offer or sale
in connection with any distribution in violation of the Securities
Act, a certification from the transferor to that effect (in
substantially the form set forth on the reverse of the Security)
(including a letter in the form of Annex A to the Security) and, if
such transfer is in respect of an aggregate principal amount of
Securities less than $250,000, an Opinion of Counsel reasonably
acceptable to the Company, the Trustee and the Registrar to the
effect that such transfer is in compliance with the Securities Act;
or
(E) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act and in accordance with all applicable securities
laws of the states of the United States, a certification to that
effect from the transferor (in substantially the form set forth on
the reverse of the Security) and an Opinion of Counsel from the
transferee or transferor reasonably acceptable to the Company and to
the Registrar to the effect that such transfer is in compliance with
the Securities Act,
then the Trustee or the Securities Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate principal
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form of
an Officers' Certificate, the Trustee or the Trustee's authenticating agent will
authenticate and make available for delivery to the transferee a Definitive
Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.6(d)
shall be registered in such names and in such authorized denominations as
the Deposi tary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
make available for delivery such Definitive Securities to the Persons in
whose names such Securities are so registered.
27
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL
SECURITIES. Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.6), a Global
Security may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF
DEPOSITARY. If at any time:
(i) the Depositary for the Securities (x) notifies the
Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Securities and a successor Depositary for the
Global Securities is not appointed by the Company within 90 days after
delivery of such notice or (y) has ceased to be a clearing agency
registered under the Exchange Act;
(ii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive
Securities under this Indenture; or
(iii) there shall have occurred and be continuing a
Default or an Event of Default with respect to the Securities;
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will, or its authenticating agent will, authenticate and make available for
delivery Definitive Securities, in an aggregate principal amount equal to the
principal amount of the Global Securities, in exchange for such Global
Securities.
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, redeemed, repurchased or cancelled, such Global
Security shall be returned to or retained and cancelled by the Trustee. At any
time prior to such cancellation, if any beneficial interest in a Global Security
is exchanged for Definitive Securities, redeemed, repurchased or cancelled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made
28
on such Global Security, by the Trustee or the Securities Custodian, at the
direction of the Trustee, to reflect such reduction.
(h) LEGENDS.
(i) Except as permitted by the following paragraph (ii),
each Security certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE FOLLOW ING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (C) IT IS AN INSTITU TIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"), OR (D) IT HAS OTHERWISE ACQUIRED THIS NOTE OR A
BENEFICIAL INTEREST HEREIN IN ACCORDANCE WITH THE TERMS OF THE INDENTURE
RELATING TO THIS NOTE AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON
THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURI-
29
TIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRA TION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, THE
TRUSTEE AND THE REGISTRAR) OR (G) PURSUANT TO AN EFFEC TIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFF
SHORE TRANSACTION," "U.S. PERSONS" AND "UNITED STATES" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULA TION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Security) pursuant to Rule 144 under the Securities Act or an effective
regis tration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that
is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legend set forth above
and rescind any restriction on the transfer of such Transfer
Restricted Security; and
30
(B) any such Transfer Restricted Security represented by
a Global Security shall not be subject to the provisions set forth
in (i) above (such sales or transfers being subject only to the
provisions of Section 2.6(c) hereof); PROVIDED, HOWEVER, that with
respect to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Security for a Definitive
Security that does not bear a legend, which request is made in
reliance upon Rule 144 under the Securities Act, the Holder thereof
shall certify in writing to the Registrar that such request is being
made pursuant to Rule 144 under the Securities Act (such
certification to be substantially in the form set forth on the
reverse of the Security).
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
DEFINITIVE SECURITIES.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee or any authenticating agent of
the Trustee shall authenticate Definitive Securities and Global Securities
at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessment, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments, or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.2 (fourth paragraph), 2.10,
3.6, 4.10, or 9.5).
(iii) The Registrar shall not be required to register
the transfer of or exchange (a) any Definitive Security selected for
redemption in whole or in part pursuant to Article III, except the
unredeemed portion of any Definitive Security being redeemed in part, or
(b) any Security for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase or redeem Securities and
ending at the close of business on the day of such mailing.
(iv) Prior to due presentment for registration or
transfer of any Security, the Trustee, any Agent and the Company may deem
and treat the Person in whose name the Security is registered as the
absolute owner of
31
such Security, and none of the Trustee, Agent or the Company shall be
affected by notice to the contrary.
(j) MISCELLANEOUS.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder's Security in violation of any provision of
this Indenture and/or applicable United States federal or state securities
law.
Section 2.7 REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by an Officer, shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of both Trustee and the Company to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company and shall be entitled to all benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
Section 2.8 OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security except as provided in Section
2.9.
If a Security is replaced pursuant to Section 2.7 hereof (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the
32
Trustee receives proof satisfactory to it that the replaced Security is held by
a BONA FIDE purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company, a Subsidiary of the Company or any Affiliate thereof) holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest and premium, if any, due on the Securities payable on
that date and payment of the Securities called for redemption is not otherwise
prohibited, then on and after that date Securities cease to be outstanding and
interest on them ceases to accrue.
Section 2.9 TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or by any Affiliate of the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which a Trustee actually knows are so owned shall be so disregarded.
Section 2.10 TEMPORARY SECURITIES
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by an Officer and delivered or caused to be
delivered to a Trust Officer. Temporary Securities shall be substantially in the
form of Definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities authenticated and delivered hereunder.
Section 2.11 CANCELLATION
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or
Paying Agent (other than the
33
Company or an Affiliate of the Company) and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.7, the Company may not issue
new Securities to replace Securities that have been paid or that have been
delivered to the Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section 2.11, except as expressly permitted in the form of Securities and as
permitted by this Indenture.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities,
it shall pay the defaulted interest in any lawful manner plus, (to the extent
lawful) interest on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is a Business Day, in each case at the rate provided in
the Securities and in Section 4.1 hereof. At least 15 days before the subsequent
special record date, the Company shall mail to each Holder with a copy to the
Trustee a notice that states the special record date, the related payment date
and the amount of defaulted interest, and interest payable on defaulted
interest, if any, to be paid.
Section 2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness of such number either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE III
OPTIONAL REDEMPTION
Section 3.1 NOTICES TO TRUSTEE.
34
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before a Redemption Date, an Officers'
Certificate setting forth that such redemption shall occur pursuant to Section
3.7 hereof and setting forth the Redemption Date, the principal amount of
Securities to be redeemed and the Redemption Price.
Section 3.2 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed PRO
RATA or by lot or by such other method as the Trustee shall determine to be fair
and appropriate and in such manner as complies with any applicable legal and
stock exchange requirements.
The Trustee shall make the selection form the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
Section 3.3 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee and each Holder whose Securities are to be redeemed at
the last address for such Holder shown on the registry books of the Registrar.
At the Company's request delivered to the Trustee at least 15 days before the
date selected for the mailing of the notice of redemption, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Securities to be redeemed
and shall state:
(a) the Redemption Date;
35
(b) the Redemption Price, including the amount of accrued and unpaid
interest to be paid upon such redemption;
(c) the name, address and telephone number of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the Redemption
Price;
(e) that, unless the Company defaults in its obligation to deposit
U.S. Legal Tender with the Paying Agent in accordance with Section 3.5 hereof,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of such Securities
is to receive payment of the Redemption Price, including accrued and unpaid
interest to the Redemption Date, upon surrender to the Paying Agent of the
Securities called for redemption and to be redeemed;
(f) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of such
Security to be redeemed and that, after the Redemption Date, and upon surrender
of such Security, a new Security or Securities in aggregate principal amount
equal to the unredeemed portion thereof will be issued;
(g) if less than all the Securities are to be redeemed, the
identifica tion of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption;
(h) the CUSIP number of the Securities to be redeemed; and
(i) that the notice is being sent pursuant to this Section 3.3 and
pursuant to the option redemption provisions of Paragraph 5 of the Securities.
Section 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.3,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price together with accrued and unpaid interest. Upon
surrender to the Trustee or if the Trustee is no longer the Paying Agent, to the
Paying Agent, such
36
Securities called for redemption shall be paid at the Redemption Price plus
interest, if any, accrued and unpaid on the Redemption Date; PROVIDED that if
the Redemption Date is after a regular record date and on or prior to the
Interest Payment Date to which such record date relates, the accrued interest
shall be payable to the Holder of the redeemed Securities registered on the
relevant record date, and PROVIDED, FURTHER, that if a Redemption Date is a
Legal Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the prior from such Redemption Date to such succeeding
Business Day.
Section 3.5 DEPOSIT OF REDEMPTION PRICE.
At least one Business Day prior to the Redemption Date, the Company
shall deposit with the Paying Agent (other than the Company or an Affiliate of
the Company) U.S. Legal Tender sufficient to pay the Redemption Price of, and
accrued and unpaid interest on, all Securities to be redeemed on such Redemption
Date (other than Securities or portions thereof called for redemption on that
date that have been delivered by the Company to the Trustee for cancellation).
The Paying Agent shall promptly return to the Company any U.S. Legal Tender so
deposited in excess of the amounts necessary to pay the Redemption Price and
accrued interest on all Securities to be redeemed.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not otherwise prohibited, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and in the Security.
Section 3.6 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without
37
service charge, a new Security or Securities equal in principal amount to the
unredeemed portion of the Security surrendered.
Section 3.7 OPTIONAL REDEMPTION.
The Company may redeem all or any of the Securities, in whole or in
part, at any time on or after November 15, 2003, at a Redemption Price equal to
a percentage of the principal amount thereof, as set forth in the immediately
succeeding paragraph, plus accrued and unpaid interest to the Redemption Date.
The Redemption Price as a percentage of the principal amount shall
be as follows, if the Securities are redeemed during the 12 month period
beginning:
YEAR PERCENTAGE
---- ----------
November 15, 2003..................... 104.188%
November 15, 2004..................... 102.792%
November 15, 2005..................... 101.396%
November 16, 2006 and thereafter...... 100.000%
Notwithstanding the foregoing, at any time prior to November 15,
2001, the Company may also redeem up to 40% of the aggregate principal amount of
the Securities originally outstanding with the net proceeds from any public
offering of Equity Interests of the Company (other than Redeemable Stock) at a
Redemption Price equal to 108.375% of the principal thereof plus accrued and
unpaid interest to the Redemption Date; PROVIDED that at least 60% in aggregate
principal amount of the Securities originally issued must remain outstanding
after each such redemption. Any such redemption must be consummated on or prior
to 120 days of the receipt of the proceeds of such offering of Equity Interests.
Any redemption pursuant to this Section 3.7 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.1 through 3.6
hereof.
ARTICLE IV
COVENANTS
38
Section 4.1 PAYMENT OF SECURITIES.
The Company shall pay the principal of, premium, if any, and
interest on the Securities on the dates and in the manner provided herein and in
the Securities. Principal, premium, if any, and interest shall be considered
paid on the date due if the Trustee or Paying Agent, other than the Company or
an Affiliate of the Company, holds for the benefit of the Holders, on or before
10:00 a.m. New York City time on that date, money deposited by the Company in
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, at the same rate per annum on the Securities to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful;
Section 4.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain, in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee or the
Registrar) 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 the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby initially designates the Trustee's
39
agency at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, X.X., X.X. 00000,
Attn: Corporate Trust Trustee Administration as such office.
Section 4.3 SEC REPORTS; FINANCIAL STATEMENTS.
(a) The Company shall deliver to the Trustee and mail to each Holder
and to prospective purchasers of Securities identified to the Company by an
Initial Purchaser, within 15 days after the filing of the same with the SEC,
copies of its annual report and of the information, documents and other reports,
if any, which the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. The Company shall also comply with the other
provisions of TIA ss.314(a).
(b) The Company shall deliver to the Trustee and to each Holder,
within 15 days after it files the same with the SEC, copies of all reports and
information that the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the SEC and provide the
Trustee and Holders with such annual reports and such information, documents and
other reports as would otherwise be required if it were subject to such
requirements.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.4 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 120 days after
the end of its fiscal year an Officers' Certificate complying with Section
314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to each such Officer signing such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions or covenants in this
40
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers'
Certificate shall also notify the Trustee should the relevant fiscal year end on
any date other than the current fiscal year end date.
(b) So long as not contrary to the then current policies of the
American Institute of Certified Public Accountants, the Company shall deliver to
the Trustee within 120 days after the end of each of its fiscal years a written
report of a firm of independent certified public accountants with an established
national reputation stating that in conducting their audit for such fiscal year,
nothing has come to their attention that caused them to believe that the Company
or any Restricted Subsidiary of the Company was not in compliance with the
provisions set forth in Article IV or V of this Indenture.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any Default
or Event of Default under this Indenture, an Officers' Certificate specifying
such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto. The Trustee shall not be deemed to have
knowledge of a Default or an Event of Default unless one of its Trust Officers
receives written notice thereof from the Company or any of the Holders.
Section 4.5 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, all material taxes, assessments and governmental
charges (including withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon the Company or any of its Restricted
Subsidiaries or properties and assets of the Company or any of its Restricted
Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment or
governmental charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
Section 4.6 WAIVER OF STAY, EXTENSION AND USURY LAWS.
41
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law,
wherever enacted, now or at any hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal of, premium,
if any, or interest on the Securities as contemplated herein or in the
Securities or which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law insofar as such law
applies to the Securities, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee relating to any such law, but will suffer and permit the execution
of every such power as though no such law has been enacted.
Section 4.7 LIMITATIONS ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make
any distribution on account of the Company's or any of its Restricted
Subsidiaries' Capital Stock or other Equity Interests (other than (A) dividends
or distributions payable in Equity Interests (other than Redeemable Stock) of
the Company or such Restricted Subsidiary or (B) dividends or distributions
payable by a Restricted Subsidiary so long as, in the case of any dividend or
distribution payable on any class or series of securities issued by a Restricted
Subsidiary other than a wholly owned Restricted Subsidiary, the Company or a
Restricted Subsidiary receives at least its pro rata share of such dividend or
distribution in accordance with its equity interest in such class or series of
securities), (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any of its Restricted Subsidiaries (other
than any such Equity Interests purchased from the Company or any of its
Restricted Subsidiaries), (iii) voluntarily prepay any Indebtedness that is
subordinated to the Securities (other than in connection with (A) any extension,
refinancing, renewal, replacement, substitution or refunding thereof permitted
by the terms of the Indenture, (B) Indebtedness between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries or (C) any Indebtedness
permitted by clauses (iv) and (viii) of the second paragraph of Section 4.9 or
(iv) make any Restricted Investments (the foregoing actions set forth in clauses
(i) through (iv) being referred to as "Restricted Payments"), if:
42
(a) a Default or Event of Default shall have occurred and be
continuing at the time of such Restricted Payment or shall occur as a
consequence thereof; or
(b) immediately after such Restricted Payment and after giving
effect thereto on a pro forma basis, the Company could not incur at least $1.00
of additional Indebtedness pursuant to the first paragraph of Section 4.9 hereof
(without giving effect to clauses (i) through (xvii) of the second paragraph
thereof); or
(c) such Restricted Payment, together with the aggregate of (i) all
other Restricted Payments made after the Issue Date PLUS (ii) the amount, if
any, by which the net amount of Investments in all Unrestricted Subsidiaries
(determined by subtracting (A) the aggregate amount of all Transfers (valued as
provided in the definition of Investment) from each Unrestricted Subsidiary to
the Company or its Restricted Subsidiaries from and after the Issue Date through
and including the relevant date of determination (calculated in accordance with
the penultimate paragraph of this Section 4.7) from (B) the aggregate amount of
all Investments in such Unrestricted Subsidiary made by the Company and its
Restricted Subsidiaries from and after the Issue Date through and including the
relevant date of determination, but in any case not below zero) exceeds $40
million, exceeds (iii) the sum of (A) 50% of the amount of the Adjusted
Consolidated Net Income (other than amounts, if any, included in the preceding
clause (c)(ii)) of the Company for the period (taken as one accounting period)
from the beginning of the first quarter commencing immediately after the Issue
Date through the end of the Company's fiscal quarter ending immediately prior to
the time of such Restricted Payment (or, if Adjusted Consolidated Net Income for
such period is a deficit, 100% of such deficit); PLUS (B) 50% of the aggregate
amortization of intangibles for the period specified in subclause (iii)(A) of
this clause (c); PLUS (C) 100% of the aggregate amounts contributed to the
capital of the Company from and after the Issue Date; PLUS (D) 100% of the
aggregate net cash proceeds and the fair market value, as determined in good
faith by the Board of Directors, of marketable securities received by the
Company from (1) the issue or sale of Equity Interests of the Company (other
than such Equity Interests issued or sold to a Restricted Subsidiary and other
than Redeemable Stock) or any Indebtedness or security convertible into or
exchangeable for any such Equity Interest that has been so converted or
exchanged, (2) the sale of the stock of an Unrestricted Subsidiary or the sale
of all or substantially all of the assets of an Unrestricted Subsidiary to the
extent that a liquidating dividend is paid to the Company or any Restricted
Subsidiary from the proceeds of such sale or (3) the sale or other disposition
of Restricted Investments made by the Company and its Restricted
43
Subsidiaries, in each case from and after the Issue Date plus (E) 100% of the
aggregate net cash proceeds received by the Company from the issue and sale of
the 6% Convertible Notes are converted into Common Stock of the Company.
The foregoing provisions shall not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at the date of
declaration thereof such payment would have complied with the provisions of this
Indenture, (ii)(A) the retirement of any Equity Interests of the Company (the
"Retired Equity Interests") either in exchange for or out of the net proceeds of
the substantially concurrent sale (other than to a Restricted Subsidiary) of
other Equity Interests of the Company (the "Refunding Equity Interests") other
than any Redeemable Stock, and (B) if immediately prior to retirement of any
Retired Equity Interest the declaration and payment of dividends thereon was
permitted under clause (vi) of this paragraph, the declaration and payment of
dividends on the Refunding Equity Interest in an aggregate amount per year no
greater than the aggregate amount of dividends per year that was declarable and
payable on such Retired Equity Interest issued in connection with such
retirement immediately prior to such retirement; (iii) the repurchase,
redemption or other acquisition or retirement for value of (A) any Equity
Interests of the Company issued to present and former members of management of
the Company and its Subsidiaries and certain of their former affiliates,
pursuant to agreements in effect on the Issue Date and (B) any Equity Interests
of the Company issued after the Issue Date to members of management of the
Company and its Subsidiaries pursuant to agreements executed subsequent to the
Issue Date, containing provisions for the repurchase of such Equity Interests
upon death, disability or termination of employment of such persons which are
substantially identical to those contained in the agreements in effect on the
Issue Date, (iv) the declaration and payment of dividends on the Company's
Common Stock of up to 6% per annum of the net proceeds received by the Company
in the initial public offering of its Common Stock and any subsequent public
offerings of the Company's Common Stock; (v) the repurchase, redemption or other
acquisition or retirement for value of Indebtedness of the Company which is
subordinated in right of payment to the Securities either in exchange for or out
of the proceeds of the issuance of Equity Interests (other than Redeemable
Stock) of the Company; (vi) the declaration and payment of dividends to holders
of any class or series of the Company's preferred stock issued after the Issue
Date (including, without limitation, the declaration and payment of dividends on
Refunding Equity Interests in excess of the dividends declarable and payable
thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of
such issuance the Company's Fixed Charge Coverage Ratio, after giving effect to
such
44
issuance, would be greater than 1.25 to 1; (vii) the redemption, repurchase or
other acquisition or retirement for value of any Indebtedness of the Company
which is subordinated in right of payment to the Securities (A) with the
proceeds of, or in exchange for, Indebtedness incurred pursuant to clause (ix)
of the second paragraph of Section 4.9 hereof or (B) if, after giving effect to
such redemption, repurchase or retirement, the Company could incur at least
$1.00 of Indebtedness under the first paragraph of Section 4.9 hereof (without
giving effect to clauses (i) through (xvii) of the second paragraph thereof);
(viii) the purchase, redemption or other acquisition or retirement for value of
any Equity Interest of a Restricted Subsidiary that is not a wholly owned
Subsidiary to the extent such purchase, redemption or other acquisition or
retirement constitutes a Permitted Investment; PROVIDED that in determining the
aggregate amount expended for Restricted Payments in accordance with paragraph
(c) above, (1) no amounts expended under clauses (ii)(A), (v), (vii) and (viii)
of this paragraph shall be included, and (2) 100% of the amounts expended under
clauses (i), (ii)(B), (iii), (iv) and (vi) of this paragraph shall be included.
In determining the net amount of Investments in Unrestricted
Subsidiar ies pursuant to clause (c)(ii) of the first paragraph of this Section
4.7 on any relevant date of determination, (i) all Transfers which would not be
included in the Adjusted Consolidated Net Income of the Company for the relevant
period will be applied to reduce the aggregate amount of Investments in
Unrestricted Subsidiaries before any Transfer which would be included in the
Adjusted Consolidated Net Income of the Company for the relevant period shall be
so applied and (ii) no Transfer (or portion thereof) which would be included in
the Adjusted Consolidated Net Income of the Company for the relevant period will
be applied to reduce the aggregate amount of Investments in Unrestricted
Subsidiaries if, prior to or as a result of the application of such Transfer,
the net amount of Investments in Unrestricted Subsidiaries (after taking into
account all prior applications of Transfers) is or would be $40 million or less.
No later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.7 were computed, which calculations may
be based on the Company's latest available internal financial statements.
Section 4.8 DIVIDENDS AND PAYMENT RESTRICTIONS.
45
The Company shall not, and shall 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 (i) pay dividends or make any other distributions on
its Capital Stock, or any other interest or participation in, or measured by,
its profits, owned by the Company or any of its Restricted Subsidiaries, or pay
any Indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its Restricted Subsidiaries or
(iii) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of: (A) the terms (as in effect on the Issue Date) of any
Existing Indebtedness, (b) the terms (as in effect on the Issue Date) of the
Credit Facility, (C) the terms of Indebtedness of the Company incurred in
accordance with Section 4.9 hereof; PROVIDED that the terms of any such
Indebtedness constitute no greater encumbrance or restriction on the ability of
any Restricted Subsidiary to pay dividends or made distributions, make loans or
advances or transfer properties or assets than is otherwise permitted by this
Section 4.8 at such time, (D) the terms of this Indenture and the Securities,
(E) applicable law, (F) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices, (G) the terms of
purchase money obligations for property acquired in the ordinary course of
business, but only to the extent that such purchase money obligations restrict
or prohibit the transfer of the property so acquired, (H) any encumbrance or
restriction with respect to a Subsidiary of the Company that is not a Subsidiary
of the Company on the Issue Date, which encumbrance or restriction is in
existence at the time such Person becomes a Subsidiary of the Company or is
created on the date it becomes a Subsidiary of the Company, (I) any encumbrance
or restriction with respect to a Subsidiary of the Company imposed pursuant to
an agreement which has been entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Subsidiary or (J) any
encumbrance or restriction existing under any amendment to, and any agreement
which refinances or replaces, the agreements described in clauses (A), (B), (C)
and (D), PROVIDED that the terms and conditions of any such encumbrances or
restrictions contained in any such amendment or agreement constitute no greater
encumbrance or restriction on the ability of any Restricted Subsidiary to pay
dividends or make distributions, make loans or advances or transfer properties
or assets than those under or pursuant to the agreement evidencing the
Indebtedness or obligations so amended, refinanced or replaced. Nothing
contained in this Section 4.8 shall prevent the Company or a Restricted
Subsidiary from entering into any agreement permitting or providing for the
incurrence of Liens otherwise permitted by Section 4.12 hereof.
46
Section 4.9 INCURRENCE OF INDEBTEDNESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any
Indebtedness unless the Company's Fixed Charge Coverage Ratio for its four full
fiscal quarters ending immediately prior to the date such additional
Indebtedness is created, incurred, issued, assumed or guaranteed would have been
at least 2.25 to 1 determined on a pro forma basis (including a pro forma
application of the net proceeds of such Indebtedness) as if the additional
Indebtedness had been created, incurred, issued, assumed or guaranteed at the
beginning of such four-quarter period.
The foregoing limitations will not apply to the incurrence of (i)
Indebtedness pursuant to the Credit Facility (provided that the principal amount
of such Indebtedness shall not exceed the aggregate amount of the commitments
under the Credit Facility on the Issue Date PLUS the amount of Indebtedness
under the Credit Facility incurred (A) as additional Indebtedness permitted
under clause (viii) of this paragraph and which reduces the amount of
Indebtedness otherwise permitted under said clause (viii), (B) as additional
Indebtedness permitted under the first paragraph of this Section 4.9 or (C) as
reimbursement obligations with respect to letters of credit permitted under
clause (vii) below); (ii) Existing Indebtedness; (iii) Indebtedness represented
by the Securities; (iv) Capital Lease Obligations; (v) Indebtedness constituting
purchase money obligations for property acquired in the ordinary course of
business or other similar financing transactions; (vi) Indebtedness incurred in
connection with capital expenditures; (vii) Indebtedness constituting
reimbursement obligations with respect to letters of credit, including, without
limitation, letters of credit in respect of workers' compensation claims, issued
for the account of the Company or a Restricted Subsidiary in the ordinary course
of business, or other Indebtedness with respect to reimbursement-type
obligations regarding workers' compensation claims; (viii) additional
Indebtedness in an aggregate principal amount equal to the greater of (A) $75.0
million in the aggregate at any one time outstanding for the Company and its
Restricted Subsidiaries and (B)(1) 10% of the Consolidated Net Worth of the
Company at the time of incurrence by the Company and (2) 10% of the Consolidated
Net Worth of any Restricted Subsidiary at the time of incurrence by such
Restricted Subsidiary; (ix) Indebtedness created, incurred, issued, assumed or
given in exchange for, or the proceeds of which are used to, extend, refinance,
renew, replace, substitute or refund any Indebtedness permitted under the
Indenture or any Indebtedness issued to so extend,
47
refinance, renew, replace, substitute or refund such Indebtedness, including any
additional Indebtedness incurred to pay premiums and fees in connection
therewith (the "Refinancing Indebtedness"); PROVIDED, that (A) the principal
amount of such Refinancing Indebtedness shall not exceed the outstanding
principal amount of Indebtedness (including unused commitments) so extended,
refinanced, renewed, replaced, substituted or refunded plus any amounts incurred
to pay premiums and fees in connection therewith, (B) in the case of Refinancing
Indebtedness for Indebtedness permitted under clause (ii) of this paragraph, the
Refinancing Indebtedness shall have an Average Life equal to or greater than the
Average Life of the Indebtedness being extended, refinanced, renewed, replaced,
substituted or refunded and (C) to the extent such Refinancing Indebtedness
refinances Indebtedness subordinated to the Securities, such Refinancing
Indebtedness is subordinated to the Securities at least to the same extent as
the Indebtedness being extended, refinanced, renewed, replaced, substituted or
refunded; and PROVIDED FURTHER that subclauses (B) and (C) of this clause (ix)
will not apply to any refunding or refinancing of any Senior Indebtedness; (x)
intercompany Indebtedness incurred in connection with Investments in
Unrestricted Subsidiaries; PROVIDED that such Investments are permitted by each
of Section 4.7 and Section 4.13 hereof; (xi) Indebtedness of any unconsolidated
Subsidiary of the Company created after the Issue Date; PROVIDED that such
Indebtedness is nonrecourse to the Company and its consolidated Restricted
Subsidiaries and the Company and its consolidated Restricted Subsidiaries have
no obligations with respect to such Indebtedness, (xii) Indebtedness under
Currency Agreements and Interest Rate Agreements; PROVIDED that in the case of
Currency Agreements which relate to other Indebtedness, such Currency Agreements
do not increase the Indebtedness of the Company outstanding other than as a
result of fluctuations in foreign currency exchange rates; (xiii) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts, which will not be, and will not be deemed to be, inadvertent) drawn
against insufficient funds in the ordinary course of business; (xiv)
Indebtedness of an entity at the time it is acquired as a Restricted Subsidiary;
PROVIDED that such Indebtedness was not incurred or assumed by such entity in
connection with or in anticipation of such acquisition; (xv) Indebtedness
between the Company and any Restricted Subsidiary or between Restricted
Subsidiaries, (xvi) guarantees by Restricted Subsidiaries of Indebtedness of the
Company or any Restricted Subsidiary if the Indebtedness so guaranteed is
permitted under this Indenture; and (xvii) the Company's Obligations arising
from the repurchase, redemption or other acquisitions of Equity Interests from
management investors to the extent permitted by Section 4.7.
48
Section 4.10 LIMITATION ON SALES OF ASSETS.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries (other than unconsolidated Restricted Subsidiaries) to,
directly or indirectly, consummate any Asset Sale that results in Net Proceeds
in excess of $45.0 million (including the sale of any of the stock of any
Restricted Subsidiary) unless the Company shall apply the Net Proceeds from such
Asset Sale to one or more of the following in such combination as it shall
choose: (i) an investment in another asset or business in the same line of
business as, or a line of business similar to that of, the line of business of
the Company and its Subsidiaries; PROVIDED that such investment occurs prior to
the later to occur of (x) if applicable, the date on which such proceeds are
required to be applied pursuant to the express terms of the Credit Facility as
in effect on the Issue Date and without regard to any waiver of such terms and
(y) the 366th day following the date of such Asset Sale (the "Asset Sale Payment
Date"); PROVIDED, FURTHER, that if the terms of the Credit Facility do not
restrict the use of such proceeds, the Asset Sale Payment Date shall be deemed
to be the 366th day following the date of such Asset Sale, (ii) a Net proceeds
Offer (as defined below) expiring on or prior to the Asset Sale Payment Date or
(iii) the purchase, redemption or other prepayment or repayment of outstanding
Senior Indebtedness on or prior to the Asset Sale Payment Date; PROVIDED,
HOWEVER, that if the net amount not invested pursuant to clause (i) or applied
pursuant to clause (iii) above (the "Excess Net Proceeds") is less than $15.0
million, the Company shall not be further obligated to offer to redeem
Securities pursuant to clause (ii) above; and PROVIDED, FURTHER, that for
purposes of the foregoing calculation of Excess Net Proceeds the Company shall
be required to repay any Senior Indebtedness that by its terms may be so repaid
at the time of such calculation, prior to determining the Excess Net Proceeds.
(b) For purposes of subsection (ii) of clause (a) of this Section,
the Company shall apply that portion of the Net Proceeds of the Asset Sale
required to make a tender offer in accordance with applicable law (a "Net
Proceeds Offer") to repurchase the Securities at a price (the "Purchase Price")
not less than 100% of the principal amount thereof plus accrued and unpaid
interest to the date fixed for payment therefor, which date shall be no earlier
than 30 days or later than 45 days after the date of mailing of the notice of
the Net Proceeds Offer; PROVIDED, HOWEVER that the Company may extend the date
fixed for payment if, in the opinion of counsel, the Net Proceeds Offer is
required to be extended under applicable law (as so extended, the "Net Proceeds
Payment Date"). Any Net Proceeds Offer shall be made by the Company only if and
to the extent permitted under and subject to prior compliance with the terms of
any
49
agreement governing Senior Indebtedness. If on the date any Net Proceeds Offer
is commenced securities of the Company ranking PARI PASSU in right of payment
with the Securities are outstanding and the terms of such securities provide
that an offer to repurchase such securities similar to the Net Proceeds Offer is
to be made with respect thereto, then the Net Proceeds Offer shall be made
concurrently with such other offer, and securities of each issue shall be
accepted on a pro rata basis, in proportion to the aggregate principal or face
amount, as the case may be, of securities of each issue which the holders
thereof elect to have redeemed.
(c) At such time as the Company determines to make a Net Proceeds
Offer, it shall so notify the Trustee in writing. Within 15 days thereafter, it
shall mail or cause the Trustee to mail (in the Company's name and at its
expense) notice of a Net Proceeds Offer to the Holders of the Securities at
their last registered addresses with a copy to the Trustee and the Paying Agent.
The Net Proceeds Offer shall remain open from the time of mailing until the
close of business on the fourth Business Day prior to the Net Proceeds Payment
Date. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to the Net Proceeds Offer. The
notice, which shall govern the terms of the Net Proceeds Offer, shall state:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.10 and that the Securities will be accepted for payment on a PRO RATA
basis (rounded down to the nearest $1,000), if necessary;
(2) the Purchase Price and the Net Proceeds Payment Date;
(3) that any Security not tendered or accepted for payment
will continue to accrue interest;
(4) that any Security accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds Payment
Date;
(5) that each Holder of a Security electing to have such
Security purchased pursuant to a Net Proceeds Offer will be required to
surrender the Security, at the address specified in the notice prior to the
close of business on the fourth Business Day prior to the Net Proceeds Payment
Date (the "Final Put Date");
(6) that Holders will be entitled to withdraw their election
if the Trustee receives, not later than the close of business on the fifth
Business Day next
50
preceding the Net Proceeds Payment Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Securities the
Holder delivered for purchase and a statement that such Holder is withdrawing
his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered.
Any such Net Proceeds Offer shall comply with all applicable
provisions of federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture that conflict with such laws
shall be deemed to be superseded by the provision of such laws.
The Trustee shall notify the Company at the opening of business on
the Business Day following the Final Put Date as to the principal amount of each
of the Securities or portions thereof which have been surrendered to the Trustee
in connection with the Net Proceeds Offer. On the Net Proceeds Payment Date, the
Company shall (i) subject to clause (b) of this Section 4.10, accept for payment
on a PRO RATA basis (if necessary) Securities or portions thereof tendered
pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent money
sufficient to pay the Purchase Price with respect to all Securities or portions
thereof so accepted and (iii) deliver or cause to be delivered to the Trustee
all Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company and the
calculations used in determining the amount of Net Proceeds to be applied to the
redemption of Securities. The Paying Agent shall promptly mail to Holders of
Securities so accepted, payment in an amount equal to the Purchase Price, and
the Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed by the
Trustee to the Holder thereof. The Company will publicly announce the results of
the Net Proceeds Offer on or as soon as practicable after the Net Proceeds
Payment Date. For purposes of this Section 4.10, the Trustee shall act as the
Paying Agent.
(d) After the Final Put Date, the Company will not be restricted
under this Section 4.10 as to its use of any remaining Net Proceeds available to
make such Net Proceeds Offer but not used to redeem the Securities pursuant
thereto.
51
Notwithstanding any other provision of this Indenture to the
contrary, for a period of 120 days after the Final Put Date, the Company may use
any Net Proceeds available to make such Net Proceeds Offer but not used to
redeem Securities pursuant thereto to purchase, redeem or otherwise acquire or
retire for value any securities of the Company ranking junior in right of
payment to the Securities at a price, stated as a percentage of the principal or
face amount of such junior securities, not greater than the price, stated as a
percentage of the principal amount of the Securities, offered in the Net
Proceeds Offer; PROVIDED that if the Net Proceeds Offer is for a principal
amount (the "Net Proceeds Offer Amount") of Securities less than the aggregate
principal amount of the Securities then outstanding then the Net Proceeds
available for such a purchase, redemption or other acquisition or retirement for
value of junior securities shall not exceed the Net Proceeds Offer Amount.
Section 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) involving aggregate consideration in excess of $5.0
million for any one transaction with any Affiliate, except for (i) transactions
(including any investments, loans or advances by or to any Affiliate) in good
faith the terms of which are fair and reasonable to the Company or such
Restricted Subsidiary, as the case may be, and are at least as favorable as the
terms which could be obtained by the Company or such Restricted Subsidiary, as
the case may be, in a comparable transaction made on an arm's length basis
between unaffiliated parties; PROVIDED that any such transaction shall be deemed
to be on terms that are fair and reasonable and that are at least as favorable
as the terms that could be obtained by the Company or such Restricted
Subsidiary, as the case may be, in a comparable transaction made on an arm's
length basis between unaffiliated parties if (a) the Company or such Restricted
Subsidiary, as the case may be, delivers to the Trustee and the Holders a
written opinion of a nationally recognized investment banking firm stating that
the transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view or (b) a majority of the directors of the Company
unaffiliated with such Affiliate or, if there are no such directors, a majority
of the directors of the Company approve such transaction, (ii) payments by the
Company or any of its Restricted Subsidiaries to KKR or any affiliate thereof
made pursuant to any financial advisory, financing, underwriting or placement
agreement, (iii) any Restricted Payment not otherwise prohibited under Section
4.7 hereof and any Investment not prohibited under Section 4.13 hereof, (iv) the
payment of reasonable and
52
customary regular fees to directors of the Company and its Subsidiaries who are
not employees of the Company or its Subsidiaries, (v) payments to KKR that are
not otherwise prohibited by Section 4.7 hereof, (vi) loans to officers,
directors and employees of the Company and its Subsidiaries for business or
personal purposes and other loans and advances made in the ordinary course of
business of the Company and its Restricted Subsidiaries and (viii) the payment
by the Company of management fees to KKR and/or its affiliates.
Section 4.12 LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) upon any asset now owned or
hereafter acquired by it or any income or profits therefrom or assign or convey
any right to receive income therefrom. Notwithstanding the foregoing, the
Company or any Restricted Subsidiary may create or assume any Lien upon its
properties or assets if the Company shall cause the Securities to be equally and
ratably secured with all other Indebtedness secured by such Lien for so long as
such other Indebtedness shall be so secured.
Section 4.13 INVESTMENTS IN UNRESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make any Investment in any Unrestricted
Subsidiary, if at the time of such Investment:
(a) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof;
(b) the amount of such Investment exceeds the amount then permitted
to be used to make Restricted Payments pursuant to clause (c) of the first
paragraph of Section 4.7 hereof; or
(c) immediately after such Investment and after giving effect
thereto on a pro forma basis deducting from Consolidated Net Income the amount
of any Investment the Company has made in an Unrestricted Subsidiary during the
four full
53
fiscal quarters last preceding the date of such Investment, the Company would
not be permitted to incur at least $1.00 of Indebtedness pursuant to the first
paragraph of Section 4.9 hereof (without giving effect to clauses (i) through
(xvii) of the second paragraph thereof).
Notwithstanding clauses (b) or (c) of this paragraph or any other
provision of this Indenture, the Company shall be permitted to make Investments
in Unrestricted Subsidiaries in an aggregate amount not to exceed $40.0 million
at any one time outstanding. The amount by which the aggregate of all
Investments in Unrestricted Subsidiaries exceeds $40.0 million at any one time
outstanding shall be counted in determining the aggregate permissible amount of
Restricted Payments pursuant to clause (c) of the first paragraph under Section
4.7 hereof. The net amount of Investments in Unrestricted Subsidiaries that (i)
exceeds $40.0 million shall be reduced by all Transfers from Unrestricted
Subsidiaries to the Company and its Restricted Subsidiaries in accordance with
clause (c)(ii) and the penultimate paragraph of Section 4.7 and (ii) is less
than or equal to $40.0 million shall be reduced by the amount of all Transfers
which would not be included in the Adjusted Consolidated Net Income of the
Company. The Company will not permit any Unrestricted Subsidiary to become a
Restricted Subsidiary, except in compliance with the last sentence of the
definition of Unrestricted Subsidiary.
Not later than the date of making any Investment described above,
the Company shall deliver to the Trustee an Officers' Certificate stating that
such Investment is permitted and setting forth the basis upon which the
calculations required by this Section 4.13 were computed, which calculations may
be based on the Company's latest available internal financial statements.
Section 4.14 CORPORATE EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each
Restricted Subsidiary in accordance with the respective organizational documents
of each Restricted Subsidiary (as amended from time to time) and the rights
(charger and statutory), licenses and franchises of the Company and its
Restricted Subsidiaries; PROVIDED that neither the Company nor any Restricted
Subsidiary shall be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any Restricted Subsidiary,
if the Board of Directors of the Company or such Restricted Subsidiary shall
54
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.
Section 4.15 LIMITATION ON OTHER SUBORDINATED INDEBTEDNESS.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is expressly by its terms
subordinate or junior in right of payment to any Senior Indebtedness and senior
in any respect in right of payment to the Securities.
ARTICLE V
SUCCESSORS
Section 5.1 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not in a single transaction or through a series of
related transactions consolidate with or merge with or into, or directly or
indirectly sell, transfer, lease or convey all or substantially all of its
properties and assets to, another Person (except any Restricted Subsidiary
existing on the date hereof and except any other Restricted Subsidiary created
or acquired after the date hereof with a positive Consolidated Net Worth,
PROVIDED that in connection with any merger of the Company with any such
Subsidiary, no consideration (other than common stock in the surviving
corporation or the Company) shall be issued or distributed to the stockholders
of the Company) unless:
(a) (i) the Company is the continuing person or (ii) the resulting,
surviving or transferee entity (the "Surviving Entity") is a corporation or
partnership organized and existing under the laws of the United States, any
state thereof or the District of Columbia and expressly assumes by supplemental
indenture, executed and delivered to the Trustee, in a form satisfactory to the
Trustee, all of the obligations of the Company under this Indenture and the
Securities;
(b) immediately after giving effect to such transaction, no Default
and no Event of Default under this Indenture shall have occurred and be
continuing;
55
(c) immediately after giving effect to such transaction on a PRO
FORMA basis, the Consolidated Net Worth of the Surviving Entity is at least
equal to the Consolidated Net Worth of the Company immediately prior to such
transaction; and
(d) immediately after giving effect to such transaction on a PRO
FORMA basis, the Fixed Charge Coverage Ratio of the Surviving Entity is at least
1:1; PROVIDED that if the Fixed Charge Coverage Ratio of the Company before
giving effect to such transaction is within the range set forth in column (A)
below, then the PRO FORMA Fixed Charge Coverage Ratio of the Surviving Entity
shall be at least equal to the lesser of (x) the ratio determined by multiplying
the percentage set forth in Column B by the Fixed Charged Charge Coverage Ratio
of the Company prior to such transaction, and (y) the ratio set forth in Column
C below:
(A) (B) (C)
--- --- ---
1.11:1 to 1.99:1..................... 90% 1.5:1
2.00:1 to 2.99:1..................... 80% 2.1:1
3.00:1 to 3.99:1..................... 70% 2.4:1
4.00:1 or more....................... 60% 2.5:1
and PROVIDED, FURTHER, that if the PRO FORMA Fixed Charge Coverage Ratio of the
Surviving Entity is 3:1 or more, the calculation in the preceding proviso shall
be inapplicable and such transaction shall be deemed to have complied with the
require ments of this clause (d).
Section 5.2 OPINION OF COUNSEL TO TRUSTEE; OFFICERS' CERTIFICATE.
The Trustee, subject to the provisions of Section 7.1 and 7.2, shall
receive and be entitled to conclusively rely upon an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, sale,
transfer, lease or conveyance complies with the applicable provisions of this
Indenture and that all conditions precedent herein provided relating to such
transaction have been complied with.
Section 5.3 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, transfer, lease or
conveyance of properties or assets in accordance with Section 5.1, the Surviving
Entity
56
formed by such consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such Surviving Entity had been named as the Company herein. When a
Surviving Entity duly assumes all of the obligations of the Company pursuant
hereto and pursuant to the Securities, the predecessor shall be released from
such obligations, PROVIDED that, in the case of transfer by lease, the
predecessor corporation shall not be released from the payment of principal,
premium, if any, and interest on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 EVENTS OF DEFAULT.
An "Event of Default," whenever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be occasioned or prohibited by the provisions of Article X or
voluntarily or involuntarily be effected by the operation of law or pursuant to
any judgment, decree or order of any administrative or governmental body):
(a) a default in the payment of interest on any Security when the
same shall become due and payable and the continuance of such default for a
period of 30 days;
(b) a default in the payment of all or any part of the principal of
or premium, if any, on any Security when and as the same shall become due and
payable at maturity, or upon acceleration, redemption or otherwise including
default in the payment of the Purchase Price required to be offered in a Net
Proceeds Offer;
(c) a failure by the Company to comply with any of the other
agreements or covenants in, or provisions of, the Securities or this Indenture
which failure continues for the period and after the notice specified below;
(d) a failure to pay the final scheduled principal installment in an
amount of at least $20.0 million at the stated maturity date thereof (after
giving effect to any applicable grace periods) under any mortgage, indenture or
instrument under which there may be issued or evidenced any Indebtedness for
borrowed money by the
57
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee is now existing or hereafter created;
(e) a default under any mortgage, indenture or instrument under
which there may be issued or evidenced any Indebtedness for borrowed money by
the Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee is now existing or hereafter created if, as a result
of such default, the maturity of such Indebtedness has been accelerated prior to
its express maturity, and the principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness with respect to which
the principal amount remains unpaid upon its final maturity (after giving effect
to any extension of such Maturity Date by the holder of such Indebtedness and
the expiration of any applicable grace period) or the maturity of which has been
so accelerated, aggregates $20.0 million or more;
(f) a final judgment or final judgments for the payment of money, or
the issuance of any warrant of attachment against any portion of the property or
assets of the Company or any of its Restricted Subsidiaries, that in the
aggregate, equal or exceed $10.0 million at any one time are entered by a court
or courts of competent jurisdiction against the Company, or any of its
Restricted Subsidiaries and such judgment or judgments or warrant of attachment
shall not be discharged, satisfied, stayed, annulled or rescinded within 60 days
of being entered or, in the case of any final judgment which provides for
payment over time, from any applicable payment date;
(g) the Company, or any of the Restricted Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors;
58
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Restricted Subsidiaries as debtor in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Restricted Subsidiaries or a Custodian for all or substantially all of the
property of the Company or any of its Restricted Subsidiaries, or
(iii) orders the liquidation of the Company or
any of its Restricted Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days;
The Company is required, pursuant to Section 4.4(a) hereof, to
deliver to the Trustee annually a statement regarding compliance with the
provisions of the Indenture, and the Company is required, pursuant to Section
4.4(c) hereof, upon becoming aware of any Default or Event of Default to deliver
a statement to the Trustee specifying such Default or Event of Default.
A Default under clause (c) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 30% in principal amount
of the then outstanding Securities notify the Company and the Trustee, in
writing of the Default and the Company does not cure the Default within 30 days
after receipt of the notice. The notice must specify the Default, demand that it
be remedied and state that the notice is a Notice of Default.
In the case of any Event of Default pursuant to the provisions of
this Section 6.1 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium, if any, which the Company would have had to pay if the
Company then had elected to redeem the Securities pursuant to Section 3.7
hereof, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law, anything in this Indenture or in the
Securities contained to the contrary withstanding.
Section 6.2 ACCELERATION.
59
If an Event of Default (other than an Event of Default with respect
to the Company specified in clauses (g) or (h) of Section 6.1 hereof) occurs and
is continuing, the Trustee by written notice to the Company or the Holders of at
least 30% (or 25% in the case of an Event of Default with respect to payment of
principal of or interest on the Securities) in aggregate principal amount of the
then outstanding Securities by written notice to the Company (and the Trustee if
given by the Holders), may and the Trustee at the request of such Holders shall,
declare all unpaid principal of, premium, if any, and accrued and unpaid
interest on the Securities to be due and payable immediately; PROVIDED, HOWEVER,
that if any Senior Indebtedness is outstanding pursuant to the Credit Facility,
upon a declaration of acceleration, such principal and interest shall be due and
payable upon the earlier of (x) the day that is five Business Days after the
provision to the Company and the Credit Agent of such written notice, unless
such Event of Default is cured or waived prior to such date, and (y) the date of
acceleration of any Senior Indebtedness under the Credit Facility. In the event
of a declaration of acceleration because an Event of Default described in clause
(d) or (e) of Section 6.1 hereof has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if such payment
default is cured or waived or the Holders of the Indebtedness which is the
subject of such Event of Default have rescinded their declaration of
acceleration in respect of such Indebtedness within 60 days thereof and the
Trustee has received written notice of such cure, waiver or rescission and no
other Event of Default described in clause (d) or (e) of Section 6.1 hereof has
occurred that has not been cured or waived within 60 days of the declaration of
acceleration of such Indebtedness in respect thereof. Upon such declaration of
acceleration the principal, premium, if any, and accrued interest, due and
payable on the Securities, as determined in the next succeeding paragraph, shall
be due and payable immediately. If an Event of Default with respect to the
Company specified in clause (g) or (h) of Section 6.1 hereof occurs, all unpaid
principal of, premium, if any, and accrued interest on the Securities then
outstanding shall IPSO FACTO become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee or any Holder.
Notwithstanding the foregoing, at any time after a declaration of
acceleration has been made and before a judgment or decree for payment of the
money due has been obtained, the Holder or Holders of a majority in aggregate
principal amount of then outstanding Securities, by written notice to the
Company and the Trustee, may waive, on behalf of all Holders, a Default or an
Event of Default if:
60
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, applicable to) any
Securities which would become due otherwise than by such declaration of
acceleration, and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances for the Trustee,
its agents and counsel, and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
accelera tion, have been cured or waived.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective for any Default or Event of Default in the payment of the principal
of, premium, if any, or interest on any Security held by a non-consenting Holder
or any Default or Event of Default with respect to any covenant or provision
which cannot be modified or amended without the consent of the Holder of each
then outstanding Security, unless all such affected Holders agree, in writing,
to waive such Default or Event of Default. No such waiver shall cure or waive
any subsequent default or impair any right consequent thereon.
Section 6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if any
, or interest then due on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or
61
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies hereunder are
cumulative to the extent permitted by law.
Section 6.4 WAIVER OF PAST DEFAULTS.
Subject to Section 6.7, prior to the declaration of acceleration of
maturity of the Securities as provided in Section 6.2, the Holders of not less
than a majority in aggregate principal amount of the then outstanding Securities
by written notice to the Trustee may waive an existing Default or Event of
Default and its consequences (including waivers obtained in connection with a
tender offer or exchange offer for Securities), except a continuing Default or
Event of Default (i) in the payment of the principal of, premium, if any, or
interest on any Security (including, without limitation, pursuant to any
mandatory or optional redemption obligation hereunder) or (ii) with respect to
any covenant or provision which, under Article IX, cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.5 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the then
outstanding Securities 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 upon the Trustee, PROVIDED THAT the
Trustee may refuse to follow any direction that conflicts with any rule of law
or this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of other Holders not taking part in such written direction or that may
involve the Trustee in personal liability.
Section 6.6 LIMITATIONS ON SUITS.
A Holder may not pursue a remedy with respect to this Indenture or
the Securities unless:
62
(1) the Holder has previously given to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 30% (or 25% in the case of an
Event of Default with respect to payment of principal of and interest on the
Securities) in principal amount of the then outstanding Securities have made a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
indemnity satisfactory to the Trustee against any loss, liability or expense to
be incurred or reasonably probable to be incurred in compliance with such
request;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Securities do not give the
Trustee a direction which is inconsistent with the request,
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of, premium, if any,
and interest on the Security, on the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
Section 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as
63
trustee of an express trust against the Company for the amount of principal,
premium, if any, and interest remaining unpaid on the Securities, determined in
accordance with Section 6.2 hereof and interest on overdue principal, premium,
if any, and, to the extent lawful, interest, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee and
counsel.
Section 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other property which the Holders of the Securities may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the 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 6.10 PRIORITIES.
Subject to Article X, any money collected by the Trustee pursuant to
this Article VI shall be applied in the following order and, in case of the
distribution of such money on account of principal, premium (if any) or
interest, upon presentation of the
64
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest on, the Securities 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
the Securities for principal, premium, if any, and interest, respectively; and
THIRD: to the Company.
The Trustee may, but shall not be obligated to, fix a record date
and payment date for any payment to Holders pursuant to this Article VI.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 shall not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 hereof, or a suit by Holders of more
than 10% in aggregate principal amount of the then outstanding Securities.
Section 6.12 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, 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
65
or employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.13 DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI 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 6.14 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 case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
Section 7.1 DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in such
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
66
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no covenants
or obligations shall be implied or read into this Indenture which are
adverse to the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions (whether in their original or facsimile form) furnished to the
Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture but not to
verify the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by it, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) 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) and (c) of this Section 7.1.
(e) 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 to take or omit to take any action
under this Indenture or at the
67
request, order or direction of the Holders or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 11.4 and 11.5. The Trustee
shall not be liable for and shall have full and complete authorization and
protection in respect of any action it takes or omits to take in good faith in
reliance on such certificate, opinion or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee) appointed by it with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
68
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order, or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the performance
of the Company's covenants in Article IV hereof or as to the performance by any
Agent of its duties hereunder. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except any Default or Event of
Default of which the Trustee shall have received written notification (which
notice references this Indenture) or with respect to which a Trust Officer shall
have actual knowledge.
(i) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate.
Section 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any of
its Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11 hereof.
Section 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities or any money paid to the
Company or upon the Company's direction under any provision hereof, and it shall
not be responsible for any statement or recital herein or any statement in the
Securities other than its certificate of
69
authentication or for the use or application of any funds received by a Paying
Agent other than the Trustee.
Section 7.5 NOTICE OF DEFAULT.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder a notice of the
Default or Event of Default within 90 days after it occurs or, if later, within
ten days after such Default or Event of Default becomes known to the Trustee
unless such Default or Event of Default has been cured. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Security, the Trustee may withhold the notice if and so long as
a committee of its Trust Officers determines in good faith that withholding the
notice is in the interests of the Holders.
Section 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with May 15, 1999, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA ss.313(b). The
Trustee shall also transmit by mail all reports as required by TIA ss.313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system or
are delisted therefrom.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
Section 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
Company and the Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable disbursements, advances and expenses incurred by it, except for any
such disburse-
70
ments, advances and expenses arising from its negligence or bad faith. Subject
to the foregoing, such expenses shall include the reasonable fees, disbursements
and expenses of the Trustee's counsel.
The Company shall indemnify and hold harmless the Trustee or any
predecessor Trustee and their agents against any loss, liability or expense
(including without limitation reasonable fees and expenses of counsel) incurred
by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture including, without limitation, costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of its powers and duties hereunder, except as set
forth in the next paragraph. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal,
premium, if any, and interest on particular Securities. Such Lien shall survive
the satisfaction and discharge of the Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(g) or (h) hereof occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VIII of this
Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
Section 7.8 REPLACEMENT OF TRUSTEE.
71
The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company in writing. The Holders of a majority in
aggregate principal amount of the then outstanding Securities may remove the
Trustee by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
The foregoing notwithstanding, a resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section 7.8.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder or
Holders of a majority in aggregate principal amount of the Securities may
appoint a successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all
72
sums owing to the Trustee provided for in Section 7.7 have been paid, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee. The successor Trustee shall
mail a notice of its succession to the Holders.
Section 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
Subject to Section 7.10 hereof, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or
transferee corporation is otherwise eligible hereunder, be the successor
Trustee.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA ss.
310(a)(1) and TIA ss. 310(a)(5). The Trustee shall have a combined capital and
surplus of at least $25.0 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA ss. 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
73
The Company may, at its option and at any time, elect to have
Section 8.2 or Section 8.3 applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article VIII.
Section 8.2 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.2, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by, and this Indenture shall cease to be of further effect as to, all
outstanding Securities, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.5 and the other Sections of this Indenture
referred to in (a) and (b) below, and the Company shall be deemed to have
satisfied all its obligations under such Securities and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) rights of
Holders to receive payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due from the trust funds
described below; (b) the Company's obligations with respect to such Securities
concerning issuing temporary Securities, registration of Securities, mutilated,
destroyed, lost or stolen Securities, and the maintenance of an office or agency
for payment and money for security payments held in trust; (c) the rights,
powers, trust, duties, and immunities of the Trustee, and the Company's
obligations in connection therewith; and (d) this Article VIII. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under Section
8.3 with respect to the Securities.
Section 8.3 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Company shall be released from its
obligations under the covenants contained in Sections 4.3, 4.4, 4.7, 4.8, 4.9,
4.10, 4.11, 4.12, 4.13 and 4.15, and Article V, with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof)
74
in connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company need not
comply with and shall have any liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document (and Section 6.1(c) shall not apply to any such covenant), but, except
as specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
of the option applicable to this Section 8.3, Sections 6.1(d), 6.1(e) and 6.1(f)
shall not constitute Events of Default.
Section 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article VIII
applicable to it), in trust, for the benefit of the Holders of such Securities,
(i) U.S. Legal Tender in an amount, or (ii) 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, U.S. Legal Tender in an amount, or (iii) a combination
thereof, in such amounts, as in each case will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge and
which shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge the principal of, premium, if any, and interest on the outstanding
Securities on the stated maturity or on the applicable redemption date, as the
case may be, of such principal or installment of principal, premium, if any, or
interest on the Securities and the Trustee, for the exclusive benefit of the
Holders of the Securities, shall have a valid, perfected, exclusive security
interest in such trust;
(b) In the case of an election under Section 8.2 before the date
that is one year prior to the Stated Maturity, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably acceptable
to the Trustee confirming that (i) the Company has received from, or there has
been published by, the
75
Internal Revenue Service a ruling or (ii) since the date hereof, there has been
a change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3 before the date
that is one year prior to the Stated Maturity, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably acceptable
to the Trustee confirming that the Holders of the outstanding Securities 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 in the
same amount, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or, insofar as
Section 6.1(g) or Section 6.1(h) is concerned, at any time in the period ending
on the 91st day after the date of such deposit;
(e) Such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) In the case of an election under either Section 8.2 or 8.3, the
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit made by the Company pursuant to its election under Section 8.2
or 8.3 was not made by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company or others;
and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the conditions
precedent provided for in, in the case of the Officers' Certificate, clauses (a)
through (f), and, in the case of the Opinion of Counsel, clauses (a) (with
respect to the validity and perfection of the security interest), (b), (c) and
(e) of this Section 8.4 have been complied with.
76
If the funds deposited with the Trustee to effect Legal Defeasance
or Covenant Defeasance are insufficient to pay the principal of, premium, if
any, and interest on the Securities when due, then the obligations of the
Company under this Indenture and the Securities will be revived and no such
defeasance will be deemed to have occurred.
Section 8.5 DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6, all U.S. Legal Tender and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Paying Agent") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Paying Agent, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any other Paying Agent as the Trustee may determine, to the
Holders of such 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. The Company
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 8.4 or the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of outstanding Securities.
Section 8.6 REPAYMENT TO THE COMPANY.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee or the Paying Agent, as applicable, shall deliver or pay to the Company
from time to time upon the request of the Company any U.S. Legal Tender or U.S.
Government Obligations held by it as provided in Section 8.4 hereof which in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.4(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Any U.S. Legal Tender and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on
77
any Security and remaining unclaimed for two years after such principal, and
premium, if any, or interest has become due and payable shall, subject to the
requirements of applicable law, be paid to the Company on its request; and the
Holder of such Security shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in 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 be repaid to the Company at the Company's written
request.
Section 8.7 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.2 or 8.3, 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
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Section 8.2 and 8.3, as the case may be; PROVIDED,
HOWEVER, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the U.S. Legal Tender and U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 SUPPLEMENT INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may enter
into
78
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency, PROVIDED such
action pursuant to this clause (a) shall not adversely affect the interests of
any Holder in any respect;
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company or
to make any other change that does not adversely affect the rights of any
Holder;
(c) to provide for collateral for the Securities;
(d) to evidence the succession of another person to the Company, and
the assumption by any such successor of the obligations of the Company, herein
and in the Securities in accordance with Article V;
(e) to provide for uncertificated Securities; or
(f) to effect or maintain the qualification of this Indenture under
the TIA.
Section 9.2 AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH CONSENT OF
HOLDERS.
Subject to Section 6.7, with the consent of the Holders of a
majority in aggregate principal amount of then outstanding Securities, by
written act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by Board Resolutions, and the Trustee may amend or
supplement this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Sections 6.4 and 6.7, the Holder or
Holders of a majority, in principal amount of then outstanding Securities may
waive compliance by the Company with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
79
(a) change the percentage of principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver of any provision of
this Indenture or the Securities;
(b) reduce the rate or extend the time for payment of interest on
any Security;
(c) reduce the principal amount of any Security, or reduce the
Purchase Price or the Redemption Price;
(d) change the stated maturity or the Net Proceeds Payment Date
(other than in accordance with Section 4.10) of any Security;
(e) alter the redemption provisions of Article III or the terms or
provisions of Section 4.10 in a manner adverse to any Holder;
(f) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Securities or the rights of
Holders to recover the principal or premium of, interest on, or redemption
payment with respect to, any Security;
(g) make any changes in Section 6.4, 6.7 or this clause (g);
(h) make the principal of, or the interest on, any Security payable
with anything or in any manner other than as provided for in this Indenture and
the Securities as in effect on the date hereof;
(i) waive a Default or an Event of Default in the payment of
principal of or premium, if any, or interest on the Securities or that resulted
from failure to comply with Section 4.10; or
(j) make the Securities subordinated in right of payment to any
extent or under any circumstances to any other indebtedness, except to the
extent no less favorable to the Holders than would be consistent with Article X
and this Indenture as in effect on the Issue Date;
80
(k) make any changes relating to (a) the right of the Trustee to
file proof of claim in any bankruptcy or similar proceeding, or (b) the
limitation on the right of Holders to direct the Trustee to institute legal
proceedings with respect to the Indenture or to such provision.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mal such notice, or any defect therein, shall not, however, in
any way impair or affect the validity or any such supplemental indenture.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 9.3 COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
Section 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by written notice to
the Company or the person designated by the Company as the person to whom
consents should be sent received before the date on which the Trustee receives
an Officers' Certificate certifying that the
81
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those persons who were Holders at such record date, and only those persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (9) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; PROVIDED, that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
Section 9.5 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes, the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment, supplement or waiver.
Section 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
82
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article IX is authorized or permitted by this Indenture.
ARTICLE X
SUBORDINATION
Section 10.1 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agrees that the payment of the principal of, premium,
if any, and interest on the Securities is subordinated, to the extent and in the
manner provided in this Article X, to the prior payment in full in cash or cash
equivalents of all Senior Indebtedness whether outstanding on the Issue Date or
thereafter incurred, including any interest accruing subsequent to a bankruptcy
or other similar proceeding whether or not such interest is an allowed claim
enforceable against the Company in a bankruptcy case under Title 11 of the
United States Code.
This Article X 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 any one
or more of them may enforce such provisions.
Section 10.2 NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No direct or indirect payment by or on behalf of the Company of
principal of, premium, if any, or interest on the Company of principal of,
premium, if any, or interest on the Securities whether pursuant to the terms of
the Securities or upon acceleration or otherwise shall be made if, at the time
of such payment there exists a default in the payment of all or any portion of
principal of, premium, if any, or interest
83
on any Designated Senior Debt (and the Trustee has received written notice
thereof), and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of Designated Senior
Debt. In addition, during the continuance of any other event of default with
respect to (i) the Credit Facility pursuant to which the maturity thereof may be
accelerated, upon the occurrence of (a) receipt by the Trustee of written notice
from the Credit Agent, or (b) if such event of default results from the
acceleration of the Securities, the date of such acceleration, no such payment
may be made by or on behalf of the Company upon or in respect of the Securities
for a period ("Payment Blockage Period") commencing on the earlier of the date
of receipt of such notice or the date of such acceleration and ending 179 days
thereafter (unless such Payment Blockage Period shall be terminated by written
notice to the Trustee from the Credit Agent), or (ii) any other Designated
Senior Debt, upon receipt by the Trustee of written notice from the trustee or
other representative for the holders of such Designated Senior Debt (or the
holders of at least a majority in aggregate principal amount of such other
Designated Senior Debt then outstanding), no such payment may be made by or on
behalf of the Company upon or in respect of the Securities for a Payment
Blockage Period commencing on the date of receipt of such notice and ending 119
days thereafter (unless such Payment Blockage Period shall be terminated by
written notice to the Trustee from such trustee or other representative
commencing the Payment Blockage Period). Notwithstanding anything herein to the
contrary, in no event will a Payment Blockage Period extend beyond 179 days from
the date on which such Payment Blockage Period was commenced. Not more than one
Payment Blockage Period may be commenced with respect to the Securities during
any period of 360 consecutive days; PROVIDED that the commencement of a Payment
Blockage Period by the holders of Designated Senior Debt other than under the
Credit Facility shall not bar the commencement of another Payment Blockage
Period by the Credit Agent within such period of 360 consecutive days. For all
purposes of this paragraph, no Event of Default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect to
the Designated Senior Debt initiating such Payment Blockage Period shall be, or
be made, the basis for the commencement of a second Payment Blockage Period by
the representative of such Designated Senior Debt whether or not within a period
of 360 consecutive days unless such event of default shall have been cured or
waived for a period of not loss than 90 consecutive days.
(b) In furtherance of the provisions of Section 10.1, in the event
that, notwithstanding the foregoing provisions of this Section 10.2, any payment
on account of principal of, premium, if any, or interest on the Securities or to
redeem (or make a deposit in redemption of), defease or acquire any of the
Securities shall be made by or
84
on behalf of the Company and received by the Trustee, by any Holder or by any
Paying Agent (or, if the Company is acting as its own Paying Agent, money for
any such payment shall be segregated and hold in trust), at a time when such
payment was prohibited by the provisions of this Section 10.2, then, unless and
until such payment is no longer prohibited by this Section 10.2, such payment
(subject to the provisions of Section 10.6) shall be received and held in trust
by the Trustee or such Holder or Paying Agent for the benefit of the holders of
Senior Indebtedness, or their respective representative, ratably according to
the respective amounts of Senior Indebtedness held or represented by each, and
shall be immediately paid over or delivered to the holders of the Senior
Indebtedness remaining unpaid to the extent necessary to make payment in full,
in cash or cash equivalents, to the holders of all Senior Indebtedness remaining
unpaid, after giving effect to all concurrent payments and such distributions to
or for the holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee and the
Holders of any default or event of default, and any cure or waiver thereof, or
any acceleration under any Senior Indebtedness or under any agreement pursuant
to which Senior Indebtedness may have been issued.
Section 10.3 SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR INDEBTEDNESS
ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF COMPANY.
Upon any distribution of assets of the Company of any kind or
character, whether in cash, property or securities upon any dissolution, winding
up, total or partial liquidation or reorganization of the Company (including,
without limitation, in bankruptcy, insolvency or receivership proceedings or
upon any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company):
(a) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full in cash or cash equivalents of all amounts payable
under Senior Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness whether
or not such interest is an allowed claim against the Company in a bankruptcy
case under Title 11 of the United States Code), before the Holders or the
Trustee on behalf of the Holders are entitled to receive any payment on account
of the principal of, premium, if any or interest on the Securities;
85
(b) any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be entitled
except for the provisions of this Article X, shall be immediately paid by the
Company or by any liquidating trustee or agent or other person making such a
payment or distribution, directly to the holders of Senior Indebtedness or their
Representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash or cash equivalents of all Senior Indebtedness remaining
unpaid after giving effect to all concurrent payments and distributions to or
for the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent (or, if the Company is acting as its own Paying
Agent, money for any such payment or distribution shall be segregated or held in
trust) on account of principal of, premium, if any, or interest on the
Securities before all Senior Indebtedness is paid in full in cash or cash
equivalents, such payment or distribution (subject to the provisions of Sections
10.6) shall be received and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of the holders of the Senior Indebtedness, or their
respective representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, and shall be immediately paid over or
delivered to the holders of the Senior Indebtedness remaining unpaid to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid after giving effect to all concurrent payments and distributions to or
for the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
Section 10.4 HOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS
Subject to the payment in full in cash or cash equivalents of all
Senior Indebtedness, the Holders of Securities shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full, and for the purpose of such
subrogation no such payments or distributions
86
to the holders of Senior Indebtedness by or on behalf of the Company, or by or
on behalf of the Holders by virtue of this Article X, which otherwise would have
been made to the Holders shall, as between the Company and the Holders, be
deemed to be payment by the Company to or on account of the Senior Indebtedness,
it being understood that the provisions of this Article X are and are intended
solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article X shall have been
applied, pursuant to the provisions of this Article X, to the payment of amounts
payable under the Senior Indebtedness, then the Holders shall be entitled to
receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash or cash equivalents.
Section 10.5 OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company and
the Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders 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 is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
X, of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any distribution of assets or securities of the Company referred to in this
Article X, the Trustee, subject to the provisions of Sections 7.1 and 7.2, and
the Holders shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article X. Nothing in
87
this Section 10.5 shall apply to the claims of, or payments to, the Trustee
under or pursuant to Section 7.7.
Section 10.6 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE OF
NOTICE.
Neither the Trustee nor any Paying Agent shall at any time be
charged with the knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee or Paying Agent, unless and until
the Trustee or Paying Agent shall have received written notice thereof from the
Company or one or more holders of Senior Indebtedness or from any trustee or
agent therefor, and, prior to the receipt of any such written notice, the
Trustee or paying agent shall be entitled to assume conclusively that no such
facts exist. Unless at least three Business Days prior to the date on which by
the terms of this Indenture any moneys are to be deposited by the Company with
the Trustee or any Paying Agent (whether or not in trust) for any purpose
(including, without limitation, the payment of the principal, premium, if any,
the interest or other amounts due on any Security), the Trustee or Paying Agent
shall have received with respect to such moneys the notice provided for in the
preceding sentence, the Trustee or Paying Agent shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date. The foregoing shall not apply
to the Paying Agent if the Company is acting as Paying Agent. Nothing contained
in this Section 10.6 shall limit the right of the holders of Senior Indebtedness
to recover payments as contemplated by Section 10.2.
Section 10.7 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF COMPANY
OR HOLDERS OF SENIOR INDEBTEDNESS.
(a) No right of any present or future holders of any Senior
Indebtedness to enforce subordination provisions contained in this Article X
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time,
88
without the consent of or notice to the holder of any Indebtedness of the
Company, without incurring responsibility to the holders of any Indebtedness of
the Company, and without impairing or releasing the subordination provisions
contained in this Article X, or the obligations hereunder of the holders of the
Indebtedness of the Company, do any one or more of the following: (a) 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; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness or fail to perfect or delay the perfection of any
such lien; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 10.8 HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF SECURITIES
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article X and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attor ney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company) tending towards
liquidation of the business and assets of the Company, the immediate filing of a
claim for the unpaid balance of his Securities in the form required in said
proceedings and cause said claim to be approved. If the Trustee does not file a
proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their Representative are or is hereby
authorized to have the right to file and are or is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities. Nothing
herein contained shall be deemed to authorize the Trustee or the holders of
Senior Indebtedness or their Representative to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
Section 10.9 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
89
The Trustee shall be entitled to all of the rights set forth in this
Article X in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 10.10 ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article X shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 6.1.
Section 10.11 NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or the Company or
any other person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article X or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations are as specifically set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee. Nothing in this Section 10.11 shall affect the obligation of any other
such person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Indebtedness or their Representative.
ARTICLE XI
MISCELLANEOUS
Section 11.1 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of the Indenture under the TIA, shall control.
90
Section 11.2 NOTICES.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the other's address.
If to the Company
World Color Press, Inc.
The Mill
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xx., Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administrator
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered, five Business Days
after being deposited in the mail, postage prepaid, if mailed, when receipt
acknowledged, if telecopied and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, certified or registered, return receipt requested, to the
Holder's address shown on
91
the register kept by the Registrar. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time proscribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 11.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel to the Trustee (which shall include the
statements set forth in Section 11.5 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been complied
with.
Section 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
92
(a) a statement that the Person making such certificate or opinion
has read and understands such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, such Person has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with, and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; PROVIDED that with respect to
matters of fact Opinions of Counsel may rely on an Officers' Certificate or
certificates of public officials.
Section 11.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.7 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 11.8 NO RECOURSE AGAINST OTHERS.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security
93
waives and releases all such liability. The waiver and release are part of the
consider ation for Issuance of the Securities.
Section 11.9 GOVERNING LAW
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF TIE TRUSTEE OR ANY SECURITYHOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 11.11 SUCCESSORS.
94
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 11.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together represent the same agreement.
Section 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.14 SEVERABILITY.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 11.15 QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualifica tion of this Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive from
the Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
Section 11.16 REGISTRATION RIGHTS.
95
Certain Holders of the Securities may be entitled to certain
registration rights with respect to such Securities pursuant to, and subject to
the terms of, the Registration Rights Agreement.
96
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
WORLD COLOR PRESS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President
THE BANK OF NEW YORK, Trustee
By: /s/ Xxxx Xx Xxxxxx
--------------------------------
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
97
EXHIBIT A
FORM OF SECURITY
8-3/8% SENIOR SUBORDINATED NOTE DUE 2008
CUSIP:
No. $_________
WORLD COLOR PRESS, INC.
promises to pay to
or registered assigns, the principal sum of ________________ dollars on November
15, 2008.
Interest Payment Dates: May 15 and November 15 commencing May 15, 1999. Record
Dates: May 1 and November 1
Reference is hereby made to the further provisions of this Senior Subordinated
Note due 2008 set forth on the reverse side hereof and such further provisions
shall have the same effect as if set forth on the front side hereof.
A-1
IN WITNESS WHEREOF, the Company has caused this certificate to be duly executed
by its duly authorized officers.
WORLD COLOR PRESS, INC.
By: ______________________________
By: ______________________________
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities referred to in the within mentioned Indenture.
Dated: November 20, 0000
XXX XXXX XX XXX XXXX, as Trustee
By: ______________________________
Authorized Signatory
A-2
8-3/8% SENIOR SUBORDINATED NOTE DUE 2008
Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONG FUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.(1)
----------
(1) This paragraph should only be added if the Security is issued in
global form.
A-3
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE FOLLOW ING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (C) IT IS AN INSTITU TIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"), OR (D) IT HAS OTHERWISE ACQUIRED THIS NOTE OR A
BENEFICIAL INTEREST HEREIN IN ACCORDANCE WITH THE TERMS OF THE INDENTURE
RELATING TO THIS NOTE AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON
THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURI TIES ACT, (D) IN A TRANSACTION MEETING OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANS FER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIRE MENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF
A-4
COUNSEL ACCEPTABLE TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR) OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANS FERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSAC TIONS," "U.S.
PERSONS" AND "UNITED STATES" HAVE THE MEAN INGS GIVEN TO THEM BY RULE 902
OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING.(2)
Capitalized terms used herein have the meaning assigned to them in
the Indenture (as defined in Section 4 below) unless otherwise indicated.
1. INTEREST. World Color Press, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
8-3/8% per annum from November 20, 1998 until maturity. The Company will pay
interest semiannually on May 15 and November 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Securities will accrue from the most recent date
on which interest has been paid or, if no interest has been paid, from the Issue
Date; PROVIDED that if there is no existing Default in the payment of interest,
and if this Security is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that the
first Interest Payment Date shall be May 15, 1999. The Company shall pay
interest on overdue principal from time to time on demand at the same rate per
annum on the Securities to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
----------
(2) This paragraph should be included only for the Transfer Restricted
Securities.
A-5
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the May 1 or November 1 next preceding
the Interest Payment Date, even if such Securities are cancelled after such
record date and on or before such Interest Payment Date. The Securities will be
payable both as to principal and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest may be made by check
mailed to the holders of the Securities at their addresses set forth in the
register of holders of Securities and PROVIDED that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest and premium on all Global Securities, and all other Securities the
Holders of which shall have provided wire transfer instructions to an account
within the United States to the Company or the Paying Agent at least five days
before the relevant Record Date. Until otherwise designated by the Company, the
Company's office or agency will be the corporate trust office of the Trustee
presently located at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, X.X.,
XX. 00000, Attn: Corporate Trust Trustee Administration.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may, subject to certain exceptions, act in
any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture
dated as of November 20, 1998 (the "Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code xx.xx. 77 aaa-77bbbb) (the "TIA"). The Securities
are subject to all such terms, anD Holders are referred to the Indenture and the
TIA for a statement of such terms. The Securities are general unsecured
obligations of the Company limited to $300.0 million in aggregate principal
amount, plus premium, if any, plus amounts, if any, sufficient to pay interest
on outstanding Securities as set forth in Paragraph 2 hereof.
5. REDEMPTION.
A-6
(a) The Company may redeem all or any of the Securities, in
whole or in part, at any time on or after November 15, 2003, at the Redemption
Price (expressed as a percentage of the principal amount therefor) set forth
below if the Securities are redeemed during the twelve-month period beginning on
the date indicated in the table below, in each case together with any accrued
but unpaid interest to the Redemption Date, as set forth in Section 3.7 of the
Indenture.
YEAR REDEMPTION
---- ----------
November 15, 2003.................104.188%
November 15, 2004.................102.792%
November 15, 2005.................101.396%
November 16, 2006 or thereafter...100.000%
Notwithstanding the foregoing, at any time prior to November 15,
2001, the Company may also redeem up to 40% in aggregate principal amount of the
Securities originally issued with the net proceeds from any public offering of
Equity Interests of the Company (other than Redeemable Stock) at a redemption
price equal to 108.375% of the principal amount thereof plus accrued and unpaid
interest to the Redemption Date; PROVIDED that at least 60% in aggregate
principal amount of the Securities originally issued must remain outstanding
after each such redemption.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder whose Securities are to be redeemed at its registered address. Securities
in denomina tions larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Securities held by a Holder are to be
redeemed. On and after the Redemption Date interest ceases to accrue on
Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Security or portion of a Security
selected for redemption, except the unredeemed portion of any Security being
redeemed in part. Also, it need not exchange or register the transfer of any
Securities for a period of 15 days before a selection of Securities to be
A-7
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. Except as set forth in
the Indenture, if the Company irrevocably deposits with the Trustee, in trust,
for the benefit of the Holders, U.S. Legal Tender, U.S. Government Obligations
or a combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the Securities to redemption or
maturity and comply with the other provisions of the Indenture relating thereto,
the Company will be discharged from certain provisions of the Indenture and the
Securities (including the restrictive covenants described in paragraph 12 below,
but excluding their obligation to pay the principal of, premium, if any and
interest on the Securities).
10. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities then outstanding (including consents obtained in connection
with a tender offer or exchange offer for Securities). Without the consent of
any Holder, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency (provided that
such action shall not adversely affect the interests of the Holders in any
respect); to add to the covenants of the Company for the benefit of Holders or
to surrender any right or power herein conferred upon the Company or to make any
other change that does not adversely affect the rights of any Holder; to provide
collateral for the Securities; to evidence the succession of another person to
the Company; to provide for uncertificated Securities; and to effect or maintain
the qualification of the Indenture under the TIA.
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Securities held by a non-consenting holder) (i)
change the percentage of the principal amount of this Security whose Holders
must consent to an amendment, supplement or waiver of any provision of any
Security or the Indenture; (ii) reduce the rate or extend the time for payment
on this Security; (iii) reduce the principal amount of any Security or reduce
the Purchase Price or the Redemption Price; (iv) change the Stated Maturity or
the Net Proceeds Payment Date (other than in accordance with Section 4.10 of the
Indenture); (v) alter the redemption provisions of Article Three of the
Indenture or the terms and provisions of Section 4.10 of the Indenture, in any
A-8
case, in a manner adverse to any Holder; (vi) make changes in provisions
concerning waivers of Defaults or Events of Defaults of Holders of securities or
the rights of Holders to recover principal or premium of, interest on, or
redemption payment with respect to, any Security in the form and manner provided
in the Indenture; (vii) make any changes to Section 6.9 or 6.6 or the third
sentence of Section 9.2 of the Indenture.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture or this Security (and the
obligation of the Company to obtain any such consent otherwise required from
such Holder) may be subject to the requirement that such Holder shall have been
the Holder of record of any Securities with respect to which such consent is
required or sought as of a date identified by the Trustee in a notice furnished
to Holders in accordance with the terms of the Indenture.
11. DEFAULTS AND REMEDIES. Events of Default include: default in
payment of interest on any Security for 30 days; default in payment of principal
of or premium on the Securities at maturity, or upon acceleration, redemption or
otherwise; failure by the Company for 30 days after written notice to it from
the Trustee or Holders of at least 30% in principal amount of the then
outstanding Securities to comply with any of its other agreements in the
Indenture or the Securities; certain defaults under other Indebtedness; certain
final judgments that remain undischarged for 60 days after being entered; and
certain events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 30% (or 25% in the case of an
Event of Default with respect to payment of principal of or interest on the
Securities) in aggregate principal amount of the then outstanding Securities may
declare all the Securities to be immediately due and payable for any amount
equal to 100% of the principal amount of the Securities plus premium, if any,
and accrued interest to the date of payment, except that in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Securities become due and payable immediately without further action
or notice and except that if any Senior Indebtedness is outstanding pursuant to
the Credit Facility, upon a declaration of acceleration, such principal,
premium, if any, and interest shall be due and payable upon the earlier of (x)
the day that is five business days after the provision to the Company and the
Credit Agent of such written notice, unless such Event of Default is cured or
waived prior to such date and (y) the date of acceleration of any Senior
Indebtedness under the Credit Facility. Holders may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority is principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing
A-9
Default or Event of Default (except a Default or an Event of Default in payment
of principal, premium, if any, or interest) if and so long as a committee of its
Trust Officers determines in good faith that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
12. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, pay dividends and make distributions with respect to, or repurchase or
otherwise acquire or retire for value, any of their Equity Interests, prepay
subordinated Indebtedness, make Restricted Investments, incur additional
Indebtedness, enter into transactions with Affiliates, incur Liens, sell assets,
merge or consolidate with any other person and sell, lease, transfer or
otherwise dispose of all or substantially all of its properties ro assets. The
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
13. TRUSTEE DEALINGS WITH COMPANY. Subject to applicable provisions
under the TIA, the Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates as if it
were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company, as such, shall
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
15. AUTHENTICATION. This Security shall not be valid until authenti
cated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Monors Act).
17. SUBORDINATION. The securities are subordinated to Senior
Indebtedness (as defined in the Indenture), which includes (i) the Senior Bank
Debt and (ii) any other Indebtedness permitted to be incurred pursuant to the
terms of Section 4.8 of the Indenture, unless the instrument under which such
Indebtedness is incurred
A-10
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities. Notwithstanding anything to the contrary in the
foregoing, "Senior Indebtedness" shall not include (i) Indebtedness that is
expressly subordinate or junior in right of payment to any Indebtedness of the
Company, (ii) Indebtedness that is represented by Redeemable Stock, (iii) any
liability for federal, state, or local taxes owed or owing by the Company, (iv)
Indebtedness of the Company to any Subsidiary or any Affiliate of the Company,
(v) trade payables, (vi) Indebtedness that is incurred in violation of the
Indenture (other than Senior Bank Debt) and (vii) the 6% Convertible Notes. To
the extent provided in the Indenture, Senior Indebtedness must be paid before
the Securities may be paid. the Company agrees, and each Holder by accepting a
Security consents and agrees, to the subordination provided in the Indenture and
authorizes the Trustee to give it effect.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
19. ADDITIONAL RIGHTS OF HOLDERS OF SECURITIES. Certain Holders of
the Securities may be entitled to certain registration rights with respect to
such Securities pursuant to, and subject to the terms of, the Registration
Rights Agreement.3
----------
(3) This paragraph should be included only for the Initial Securities.
A-11
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
WORLD COLOR PRESS, INC.
The Mill
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
A-12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
In connection with any transfer of this Security occurring prior to the date
which is the earlier of (i) the date of the declaration by the Securities and
Exchange Commission of the effectiveness of a registration statement under the
Securities act of 1933, as amended (the "Securities Act") covering resales of
this Security (which effectiveness shall not have been suspended or terminated
at the date of the transfer) and (ii) November 20, 2000, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that:
[Check One]
|_| (a) this Security is being transferred in compliance with the exemp
tion from registration under the Securities Act provided by Rule 144A
thereunder.
|_| (b) this Security is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any Person other than the
Holder hereof unless
A-13
and until the conditions to any such transfer or registration set forth herein
and in Section 2.6 of the Indenture shall have been satisfied.(4)
________________________________________________________________________________
Date:______________________ Your Signature:_____________________________
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
----------
(4) This paragraph should be included only for the Initial Securities.
A-14
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(5)
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized signatory of
Date of Principal Amount of Principal Amount of Security following Trustee or
Exchange of this Global this Global such decrease (or Securities
Security Security increase) Custodian
------------------------------------------------------------------------------------------------
----------
(5) This schedule should only be added if the Security is issued in global
form.
A-15
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES1
Re: 8-3/8% SENIOR SUBORDINATED NOTES DUE 2008 OF WORLD COLOR PRESS, INC.
This Certificate relates to $______________ principal amount of Securities
held in (check applicable box) _____ book-entry or ______ definitive form by
______________ (the "Transferor").
The Transferor (check applicable box):
|_| has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
|_| has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that Transferor is familiar with
the Indenture relating to the above-captioned Securities and as provided in
Section 2.6 of such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below) because (check
applicable box):
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section
2.6(d)(i)(A) of the Indenture).
|_| Such Security is being transferred to a "qualified institutional
buyer" (within the meaning of Rule 144A promulgated under the Securities Act),
that is aware that any sale of Securities to it will be made in reliance on Rule
144A under the Securities Act and that is acquiring such Transfer Restricted
Security for its own account,
----------
(6) This Certificate shall be included only for Transfer Restricted
Securities.
A-16
or for the account of another such "qualified institutional buyer" (in
satisfaction of Section 2.6(a)(ii)(B) or Section 2.6 (d)(i)(B) of the
Indenture).
|_| Such Security is being transferred pursuant to an exemption from regis
tration in accordance with Rule 144, or outside the United States in an Offshore
Transaction in compliance with Rule 904 under the Securities Act, or pursuant to
an effective registration statement under the Securities Act (in satisfaction of
Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the Indenture).
|_| Such Security is being transferred to an institutional "accredited
investor" within the meaning of Rule 501(A)(1), (2), (3) or (7) under the
Securities Act that is acquiring the Security for its own account, or for the
account of such an institutional accredited investor, not with a view to or for
offer or sale in connection with any distribution in violation of the Securities
Act, and a letter in the form of Annex A to this Security accompanies this
Certificate, and, if such transfer is in respect of an aggregate principal
amount of Securities less than $250,000, an Opinion of Counsel to the effect
that such transfer is in compliance with the Securities Act accompanies this
Certificate (in satisfaction of Section 2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of
the Indenture).
|_| Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act and
in accordance with applicable securities laws of the states of the United
States, other than as provided in the three immediately preceding paragraphs. An
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 2.6(a)(ii)(E) or Section 2.6(d)(i)(E) of the Indenture).
-------------------------------
[INSERT NAME OF TRANSFEROR]
By: ___________________________
Date:______________________
A-17
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES(7)
Re: 8-3/8% SENIOR SUBORDINATED NOTES DUE 2008 OF WORLD COLOR PRESS, INC.
This Certificate relates to $______________ principal amount of Securities
held in (check applicable box) _____ book-entry or ______ definitive form by
______________ (the "TRANSFEROR").
The Transferor (check applicable box):
|_| has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
----------
(7) This certificate shall be included only for the Exchange Securities.
A-18
ANNEX A TO OFFERING SECURITY(8)
INVESTOR LETTER OF REPRESENTATION
WORLD COLOR PRESS, INC.
THE BANK OF NEW YORK, AS TRUSTEE
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attn: Corporate Trust Trustee Administration
Ladies and Gentlemen:
This letter is delivered by the undersigned to request a transfer of
$___________ principal amount of the 8-3/8% Senior Subordinated Notes due 2008
(the "Notes") of World Color Press, Inc. (the "Company"). The Notes are
described in that certain Offering Memorandum (the "Offering Memorandum") dated
November 12, 1998 relating to the offering of the Notes. We acknowledge receipt
of the Offering Memorandum and acknowledge that we have read the Offering
Memorandum, including the information on pages 68-70, have had access to such
financial and other information and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers thereto, as
we deem necessary in connection with our decision to purchase the Notes.
Upon transfer the Notes would be registered in the name of the
undersigned:
Name:____________________
Address:_________________
----------
(8) This Annex shall be included only for Transfer Restricted Securities.
A-19
Taxpayer ID Number:__________________
A-20
The undersigned represents and warrants to you that:
(a) We are an institutional "accredited investor" (as defined in Rule
501(a)(1),(2),(3),or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing Notes for our own account or for the account of
such an institutional "accredited investor," and we are acquiring the Notes for
investment purposes and not with a view to, or for offer or sale in connection
with any distribution in violation of the Securities Act, and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risk of our investment in the Notes and invest in or
purchase securities similar to the Notes in the normal course of our business
and we, and any accounts for which we are acting, are each able to bear the
economic risk of our or its investment. We confirm that neither the Company nor
any person acting on its behalf has offered to sell the Notes by, and that we
have not been made aware of the offering of the Notes by, any form of general
solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio.
(b) We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes within the time period referred to under Rule 144(k) (taking into
account the provisions of Rule 144(d) under the Securities Act, if applicable)
under the Securities Act as in effect on the Note of the transfer, (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement that has been declared effective under the Securities
Act, (c) so long as the Notes are eligible for resale pursuant to Rule 144A
under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A under the Securities Act (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) in an
offshore transaction complying with Rule 903 or 904 of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of Rule 501(a)(1),(2),(3),or (7) under the Securities Act that is purchasing for
its own account or for the account of an institutional "accredited investor", in
each case, with respect of the Notes, or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in
each of the foregoing cases to any requirement of law that the disposition of
our property of such investor account or accounts be at all times within our or
their control and in compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other
A-21
transfer of the Notes is proposed to be made pursuant to clause (e) above prior
to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the from of this letter to the
Company and the trustee (the "Trustee") under the indenture, dated as of
November 20, 1998, between the Company and the Trustee relating to the Notes,
which shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1),(2),(3) or (7) under
the Securities Act and that it is acquiring such Notes for investment purposes
and not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer, prior to the Resale Restriction Termination Date,
of the Notes (i) pursuant to clause (e) above (if such transfer is in respect of
an aggregate principal amount of Securities less than $250,000) or (ii) pursuant
to clause (f) above, to require the delivery of an opinion of counsel
satisfactory to the Company and the Trustee.
(c) We understand that the Notes will be in the form of definitive
physical certificates bearing the legend set forth in clause (4) in the
"Transfer Restrictions" section of the Offering Memorandum.
We acknowledge that you, the Initial Purchasers and others will rely upon
our confirmations acknowledgments and agreements set forth herein, and we agree
to notify you promptly in writing if any of our representations and warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
__________________________
By:_______________________
A-22
