Exhibit 4.3
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World Color Press, Inc.
$300,000,000
7 3/4% Senior Subordinated Notes due 2009
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INDENTURE
Dated as of February 22, 1999
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The Bank of New York
Trustee
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions.........................................................1
Section 1.2 Other Definitions..................................................20
Section 1.3 Incorporation by Reference of Trust Indenture Act..................20
Section 1.4 Rules of Construction..............................................21
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating....................................................22
Section 2.2 Execution and Authentication.......................................23
Section 2.3 Registrar and Paying Agent.........................................25
Section 2.4 Paying Agent to Hold Assets in Trust...............................25
Section 2.5 Holder Lists.......................................................26
Section 2.6 Transfer and Exchange..............................................26
Section 2.7 Replacement Securities.............................................44
Section 2.8 Outstanding Securities.............................................44
Section 2.9 Treasury Securities................................................45
Section 2.10 Temporary Securities...............................................45
Section 2.11 Cancellation.......................................................45
Section 2.12 Defaulted Interest.................................................46
Section 2.13 CUSIP Numbers......................................................46
Section 2.14 Issuance of Additional Securities..................................46
ARTICLE III
OPTIONAL REDEMPTION
Section 3.1 Notices to Trustee.................................................47
Section 3.2 Selection of Securities to be Redeemed.............................47
Section 3.3 Notice of Redemption...............................................48
Section 3.4 Effect of Notice of Redemption.....................................49
Section 3.5 Deposit of Redemption Price........................................49
Section 3.6 Securities Redeemed in Part........................................50
Section 3.7 Optional Redemption................................................50
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ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities..............................................51
Section 4.2 Maintenance of Office or Agency....................................52
Section 4.3 SEC Reports; Financial Statements..................................52
Section 4.4 Compliance Certificate; Notice of Default..........................53
Section 4.5 Payment of Taxes and Other Claims..................................54
Section 4.6 Waiver of Stay, Extension and Usury Laws...........................54
Section 4.7 Limitations on Restricted Payments.................................54
Section 4.8 Dividends and Payment Restrictions.................................58
Section 4.9 Incurrence of Indebtedness.........................................59
Section 4.10 Limitation on Sales of Assets......................................61
Section 4.11 Transactions With Affiliates.......................................64
Section 4.12 Limitations on Liens...............................................65
Section 4.13 Investments in Unrestricted Subsidiaries...........................65
Section 4.14 Corporate Existence................................................66
Section 4.15 Limitation on Other Subordinated Indebtedness......................67
ARTICLE V
SUCCESSORS
Section 5.1 Merger, Consolidation, or Sale of Assets...........................67
Section 5.2 Opinion of Counsel to Trustee; Officers' Certificate...............68
Section 5.3 Successor Corporation Substituted..................................68
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default..................................................69
Section 6.2 Acceleration.......................................................72
Section 6.3 Other Remedies.....................................................73
Section 6.4 Waiver of Past Defaults............................................74
Section 6.5 Control By Majority................................................74
Section 6.6 Limitations On Suits...............................................74
Section 6.7 Rights of Holders To Receive Payment...............................75
Section 6.8 Collection Suit By Trustee.........................................76
Section 6.9 Trustee May File Proofs of Claim...................................76
Section 6.10 Priorities.........................................................77
Section 6.11 Undertaking For Costs..............................................77
Section 6.12 Rights and Remedies Cumulative.....................................77
Section 6.13 Delay or Omission Not Waiver.......................................78
Section 6.14 Restoration of Rights and Remedies.................................78
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ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee..................................................78
Section 7.2 Rights of Trustee..................................................80
Section 7.3 Individual Rights of Trustee.......................................81
Section 7.4 Trustee's Disclaimer...............................................81
Section 7.5 Notice of Default..................................................82
Section 7.6 Reports by Trustee to Holders......................................82
Section 7.7 Compensation and Indemnity.........................................82
Section 7.8 Replacement of Trustee.............................................83
Section 7.9 Successor Trustee by Merger, Etc...................................85
Section 7.10 Eligibility; Disqualification......................................85
Section 7.11 Preferential Collection of Claims against Company..................85
ARTICLE VIII
LEGAL DEFEASANCE AND
COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance...........85
Section 8.2 Legal Defeasance and Discharge.....................................85
Section 8.3 Covenant Defeasance................................................86
Section 8.4 Conditions to Legal or Covenant Defeasance.........................87
Section 8.5 Deposited Cash and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions..............................89
Section 8.6 Repayment to the Company...........................................89
Section 8.7 Reinstatement......................................................90
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplement Indentures Without Consent of Holders...................90
Section 9.2 Amendments, Supplemental Indentures and Waivers with
Consent of Holders.................................................91
Section 9.3 Compliance with TIA................................................93
Section 9.4 Revocation and Effect of Consents..................................93
Section 9.5 Notation on or Exchange of Securities..............................94
Section 9.6 Trustee to Sign Amendments, Etc....................................94
ARTICLE X
SUBORDINATION
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PAGE
Section 10.1 Securities Subordinated to Senior Indebtedness.....................95
Section 10.2 No Payment on Securities in Certain Circumstances..................95
Section 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of Company.........................................................97
Section 10.4 Holders to Be Subrogated to Rights of Holders of Senior
Indebtedness.......................................................98
Section 10.5 Obligations of the Company Unconditional...........................99
Section 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice..................................................99
Section 10.7 Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness......................100
Section 10.8 Holders Authorize Trustee to Effectuate Subordination of
Securities........................................................100
Section 10.9 Right of Trustee to Hold Senior Indebtedness......................101
Section 10.10 Article X Not to Prevent Events of Default........................101
Section 10.11 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness......................................................101
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls......................................102
Section 11.2 Notices...........................................................102
Section 11.3 Communication by Holders With Other Holders.......................103
Section 11.4 Certificate and Opinion as to Conditions Precedent................103
Section 11.5 Statements Required in Certificate or Opinion.....................104
Section 11.6 Rules by Trustee, Paying Agent, Registrar.........................104
Section 11.7 Legal Holidays....................................................105
Section 11.8 No Recourse Against Others........................................105
Section 11.9 Governing Law.....................................................105
Section 11.10 No Adverse Interpretation of Other Agreements.....................106
Section 11.11 Successors........................................................106
Section 11.12 Counterpart Originals.............................................106
Section 11.13 Table of Contents, Headings, etc..................................106
Section 11.14 Severability......................................................106
Section 11.15 Qualification of Indenture........................................107
Section 11.16 Registration Rights...............................................107
SIGNATURES.......................................................................108
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PAGE
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
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310(a)(1)............................................................... 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.**
(a)(4)............................................................... N.A.
(b).................................................................. 7.8; 7.10; 11.2
(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)............................................................... 11.4
(c)(2)............................................................... 7.2; 11.4
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 11.5
(f).................................................................. N.A.
315(a).................................................................. 7.1(2)
(b).................................................................. 7.5; 11.2
(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
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* 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
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INDENTURE, dated as of February 22, 1999, 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 7 3/4% Senior Subordinated Notes due 2009 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 DEFINITIONS.
"144A GLOBAL SECURITY" means a global security in the form of
Exhibit A hereto bearing the Global Security Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding principal
amount of the Initial Securities sold in reliance on Rule 144A.
"ADDITIONAL SECURITIES" means, subject to the Company's
compliance with Section 4.9, 7 3/4% Senior Subordinated Notes due 2009 issued
from time to time after the Issue Date under the terms of this Indenture (other
than pursuant to Section 2.6, 2.7, 2.10, 3.6, 4.10 or 9.5 of this Indenture and
other than Exchange Securities issued pursuant to an Exchange Offer).
"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.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"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.
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"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.
"BOARD RESOLUTION" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"BROKER-DEALER" means any broker-dealer that receives Exchange
Securities for its own account in an Exchange Offer in exchange for Initial
Securities that were acquired by such broker-dealer as a result of market-making
or other trading activities.
"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
3
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 ▇▇▇▇▇'▇ 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.
"CEDEL" means Cedel Bank, societe anonyme, or any successor
thereof.
"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.
"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
4
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 (iii) 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 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, ▇▇▇▇▇▇▇ 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
5
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 includable 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 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.
6
"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 bear the Global
Security Legend or the "Schedule of Exchange of Interests in the Global
Security" attached thereto.
"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.
7
"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).
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system, or any successor thereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"EXCHANGE OFFER" means a registered offer to exchange Initial
Securities for Exchange Securities pursuant to the terms of a Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an Exchange
Offer Registration Statement as defined in a Registration Rights Agreement.
"EXCHANGE SECURITIES" means the 7 3/4% Senior Subordinated
Notes due 2009 to be issued pursuant to this Indenture in connection with the
offer to exchange Securities for Initial Securities (including any Additional
Securities) that may be made by the Company pursuant to a 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 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 each of a 144A Global Security, a
Regulation S Permanent Global Security and a Regulation S Temporary Global
Security.
8
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
2.7(g)(ii) to be placed on all Global Securities issued under this Indenture.
"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 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.
9
"INDENTURE" means this Indenture as amended or supplemented
from time to time in accordance with the terms hereof.
"INDIRECT PARTICIPANT" means, with respect to DTC, Euroclear
or Cedel, a Person that clears through or maintains a direct or indirect
custodial relationship with a Participant.
"INITIAL PURCHASERS" means (i) with respect to the Initial
Securities issued pursuant to the Indenture on the Issue Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, ABN AMRO Incorporated, BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.,
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and Fleet Securities Inc. and (ii) with respect to each
issuance of Additional Securities, the Persons purchasing such Additional
Securities under the related purchase agreement or underwriting agreement.
"INITIAL SECURITIES" means (i) the $300.0 million 7 3/4%
Senior Subordi nated Notes due 2009, issued under this Indenture on the Issue
Date and (ii) Additional Securities, if any, issued in a transaction exempt from
the registration requirements of the Securities Act, in each case as
supplemented from time to time in accordance with the terms hereof.
"INSTITUTIONAL ACCREDITED INVESTOR" means an "institutional
accredited investor" within the meaning of Rule 501(A)(1), (2), (3) or (7) under
the Securities Act.
"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
10
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 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 ▇▇▇▇▇▇▇ & Co., L.P.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Securities for use by
such Holders in connection with an Exchange Offer.
"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.
11
"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 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.
"NON-U.S. PERSON" means a person who is not a U.S. Person.
"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.
12
"PARTICIPANT" means, with respect to DTC, Euroclear or Cedel,
a Person who has an account with DTC, Euroclear or Cedel, respectively (and,
with respect to DTC, shall include Euroclear and Cedel).
"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.
"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)
13
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 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.
14
"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.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.7(g)(i) to be placed on all Securities issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"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.
"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 (i) with respect to the
Initial Securities issued on the Issue Date, the Registration Rights Agreement
dated as of the
15
Issue Date by and between the Company and the Initial Purchasers providing for
certain registration rights for such Securities and (ii) with respect to each
issuance of Additional Securities issued in a transaction exempt from the
registration requirements of the Securities Act, the registration rights
agreement, if any, among the Company and the Persons purchasing such Additional
Securities under the related purchase agreement.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL SECURITY" means a Regulation S Temporary
Global Security or Regulation S Permanent Global Security, as appropriate.
"REGULATION S PERMANENT GLOBAL SECURITY" means a permanent
global Security in the form of Exhibit A hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary
global Security in the form of Exhibit A bearing the Private Placement Legend
and the Global Security Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Initial Securities initially sold in
reliance on Rule 903 of Regulation S.
"REGULATION S TEMPORARY GLOBAL SECURITY LEGEND" means the
legend found in Section 2.6(g)(iii).
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative for any Senior Indebtedness.
"RESTRICTED BROKER-DEALER" has the meaning set forth in the
Registration Rights Agreement.
"RESTRICTED DEFINITIVE SECURITY" means a Definitive Security
bearing the Private Placement Legend.
16
"RESTRICTED GLOBAL SECURITY" means a Global Security bearing
the Private Placement Legend.
"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 PERIOD" means the 40-day restricted period as
defined in Regulation S.
"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 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.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities
Act.
"RULE 904" means Rule 904 promulgated under the Securities
Act.
"SEC" means the Securities and Exchange Commission.
17
"SECURITIES" means, collectively, the Securities issued under
this Indenture, including the Initial Securities and, when and if issued as
provided in a Registration Rights Agreement, the Exchange Securities, and
Additional Securities, if any, issued pursuant to a registration statement filed
with the SEC under the Securities Act, treated as a single class.
"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), (vii) the 6% Convertible Notes and (viii) the
Company's 8 3/8% Senior Subordi nated Notes due 2008.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in a Registration Rights Agreement.
"6% CONVERTIBLE NOTES" means the Company's 6% Convertible
Senior Subordinated Notes due 2007.
18
"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. ▇▇.▇▇. 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 DEFINITIVE SECURITY" means one or more
Definitive Securities that do not bear and are not required to bear the Private
Placement Legend.
19
"UNRESTRICTED GLOBAL SECURITY" means a permanent Global
Security in the form of Exhibit A attached hereto that bears the Global Security
Legend and that has the "Schedule of Exchanges of Interests in the Global
Security" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Securities
that do not bear the Private Placement Legend.
"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 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.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
Section 1.2 OTHER DEFINITIONS.
20
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)
"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; and
21
"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:
(A) a term has the meaning assigned to it;
(B) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(C) "or" is not exclusive;
(D) words in the singular include the plural, and in
the plural include the singular;
(E) provisions apply to successive events and
transactions;
(F) "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
(G) 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.
22
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.
Securities issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Security Legend and the
"Schedule of Exchanges of Interests in the Global Security" attached thereto).
Securities issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Security Legend and without
the "Schedule of Exchanges of Interests in the Global Security" attached
thereto). Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Securities represented thereby shall be made by
the Trustee or the Securities Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
Initial Securities offered and sold in reliance on Regulation
S shall be issued initially in the form of a Regulation S Temporary Global
Security, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its Corporate Trust Office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Cedel, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The Restricted Period shall be terminated
upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel
certifying that they have received certification of non-United States beneficial
ownership
23
of 100% of the aggregate principal amount of the Regulation S Temporary Global
Security (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a 144A Global Security bearing a Private Placement Legend,
all as contemplated by Section 2.6(a)(ii) hereof), and (ii) an Officers'
Certificate from the Company. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Security shall
be exchanged for beneficial interests in Regulation S Permanent Global Security
pursuant to the Applicable Procedures. Simultaneously with the authentication of
the Regulation S Permanent Global Security, the Trustee shall cancel the
Regulation S Temporary Global Security. The aggregate principal amount of the
Regulation S Temporary Global Security and the Regulation S Permanent Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel shall be
applicable to transfers of beneficial interests in a Regulation S Temporary
Global Security and the Regulation S Permanent Global Securities that are held
by the Agent Members through Euroclear or Cedel.
Initial Securities offered and sold in reliance on Rule 144A
shall be issued initially in the form of a 144A Global Security. Additional
Securities, if any, issued pursuant to a registration statement filed with the
SEC under the Securities Act shall be issued initially in the form of an
Unrestricted Global Security.
Section 2.2 EXECUTION AND AUTHENTICATION.
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.
24
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.
On the Issue Date, the Trustee shall authenticate Initial
Securities for original issue in the aggregate principal amount of up to $300.0
million and, at any time and from time to time thereafter, the Trustee shall
authenticate and deliver Additional Securities for original issue in an
aggregate principal amount specified in such written order, in each case upon a
written order of the Company in the form of an Officers' Certificate. Such order
shall specify the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and, in the case
of an issuance of Additional Securities pursuant to Section 2.14 after the Issue
Date, shall certify that such issuance is in compliance with Section 4.9. In
addition, the Trustee 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 a 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. 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.
Section 2.3 REGISTRAR AND PAYING AGENT.
25
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 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
26
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 Section 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 Section 312(a).
Section 2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. A Global
Security may not be transferred as a whole except by the Depositary to a nominee
of the Depositary, by a nominee of the Depositary to the Depositary or to
another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Definitive Securities if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice from the Depositary, (ii) the Company in its sole discretion determines
that the Global Securities (in whole but not in part) should be exchanged for
Definitive Securities and delivers a written notice to such effect to the
Trustee; PROVIDED that in no event shall the Regulation S Temporary Global
Security be exchanged by the Company
27
for Definitive Securities prior to (x) the expiration of the Restricted Period
and (y) the receipt by the Registrar of any certificates required pursuant to
Rule 903 under the Securities Act, or (iii) there shall have occurred and be
continuing a Default or Event of Default with respect to the Securities. Upon
the occurrence of any of the preceding events in (i), (ii) or (iii) above,
Definitive Securities shall be issued in such names as the Depositary shall
instruct the Trustee. Global Securities also may be exchanged or replaced, in
whole or in part, as provided in Section 2.7 and 2.10 hereof. Every Security
authenticated and delivered in exchange for, or in lieu of, a Global Security or
any portion thereof, pursuant to Section 2.7 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for another Security other than as provided
in this Section 2.6(a); however, beneficial interests in a Global Security may
be transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL SECURITIES. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs as
applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
SECURITY. Beneficial interests in any Restricted Global Security may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement Legend; PROVIDED, HOWEVER, that prior to the expiration of
the Restricted Period transfers of beneficial interests in a Regulation
S Temporary Global Security may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Security may be
transferred only to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security. No written
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.6(b)(i).
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(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL SECURITIES. In connection with all transfers and exchanges of
beneficial interests (other than a transfer of a beneficial interest in
a Global Security to a Person who takes delivery thereof in the form of
a beneficial interest in the same Global Security), the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Proce dures directing
the Depositary to credit or cause to be credited a beneficial interest
in another Global Security in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Security in
an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Security shall be registered to effect the transfer or
exchange referred to in (1) above; PROVIDED that in no event shall
Definitive Securities be issued upon the transfer or exchange of
beneficial interests in a Regulation S Temporary Global Security prior
to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule 903 under
the Securities Act. Upon an Exchange Offer by the Company in accordance
with Section 2.6(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Securities. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities
contained in this Indenture, the Securities and otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Security(ies) pursuant to Section 2.6(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL SECURITY. A beneficial interest in any Restricted Global
Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Security
if the transfer complies with the requirements of clause (ii) above and
the Registrar receives the following:
29
(A) if the transferee will take delivery in the form
of a beneficial interest in a 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certificates in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in a Regulation S Temporary Global
Security or a Regulation S Permanent Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL SECURITY. A beneficial interest in any Restricted Global
Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security if the exchange or transfer complies with
the requirements of clause (ii) above and:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Securities
or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker- Dealer pursuant to the Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement;
or
(D) the Registrar receives the following:
30
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to exchange
such beneficial interest for a beneficial interest in an
Unrestricted Global Security, a certificate from such holder
in the form of Exhibit C hereto, including the certifications
in item (1)(a) thereof;
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Security, a certificate from such holder
in the form of Exhibit B hereto, including the certifications
in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that
such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and
in the Private Placement Legend no longer not required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot
be exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE SECURITIES.
(i) If any holder of a beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
Definitive Security or to transfer such beneficial interest to a Person
who takes delivery thereof in
31
the form of a Definitive Security, then, upon receipt by the Registrar
of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non- U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate
32
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 2.6(h) hereof, and the Company shall execute, and upon receipt
of an authentication order pursuant to Section 2.2, the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Restricted Definitive Security in the appropriate principal amount. Any
Restricted Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Security pursuant to this Section
2.6(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver
such Restricted Definitive Securities to the Persons in whose names
such Securities are so registered. Any Restricted Definitive Security
issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.6(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Notwithstanding Sections 2.6(c)(i)(A) and (C) hereof, a
beneficial interest in a Regulation S Temporary Global Security may not
be (A) exchanged for a Definitive Security prior to (x) the expiration
of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(B) under the
Securities Act or (B) transferred to a Person who takes delivery
thereof in the form of a Definitive Security prior to the events set
forth in clause (A) above or unless the transfer is pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Notwithstanding Section 2.6(c)(i) hereof, a holder of a
beneficial interest in a Restricted Global Security may exchange such
beneficial interest for an Unrestricted Definitive Security or may
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and
33
the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is
an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with a Regulation
Rights Agree ment;
(C) any such transfer is effected by a Restricted
Broker- Dealer pursuant to the Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to exchange
such beneficial interest for a Definitive Security that does
not bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof;
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Security that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company, to the effect
that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities
Act.
(iv) If any holder of a beneficial interest in an Unrestricted
Global Security proposes to exchange such beneficial interest for an
Unrestricted
34
Definitive Security or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive
Security, then, upon satisfaction of the conditions set forth in
Section 2.6(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the Company shall
execute and, upon receipt of an authentication order pursuant to
Section 2.2, the Trustee shall authenticate and deliver to the Person
designated in the instructions an Unrestricted Definitive Security in
the appropriate principal amount. Any Unrestricted Definitive Security
issued in exchange for a beneficial interest pursuant to this Section
2.6(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Unrestricted Definitive Securities to the
Persons in whose names such Securities are so registered. Any
Unrestricted Definitive Security issued in exchange for a beneficial
interest pursuant to this Section 2.6(c)(iii) shall not bear the
Private Placement Legend. A beneficial interest in an Unrestricted
Global Security cannot be exchanged for a Definitive Security bearing
the Private Placement Legend or transferred to a Person who takes
delivery thereof in the form of a Definitive Security bearing the
Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES FOR
BENEFICIAL INTERESTS.
(i) If any Holder of a Restricted Definitive Security proposes
to exchange such Security for a beneficial interest in a Restricted
Global Security or to transfer such Restricted Definitive Securities to
a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Security, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Security proposes to exchange such Security for a beneficial
interest in a Restricted Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a
35
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof; or
(C) if such Restricted Definitive Security is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Security, increase
or cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Security, in the
case of clause (B) above, a 144A Global Security, in the case of clause
(C) above, a Regulation S Global Security.
(ii) A Holder of a Restricted Definitive Security may exchange
such Security for a beneficial interest in an Unrestricted Global
Security or transfer such Restricted Definitive Security to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker- Dealer pursuant to the Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement;
or
(D) the Registrar receives the following:
36
(1) if the Holder of such Restricted
Definitive Securities proposes to exchange such Securities for
a beneficial interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof;
(2) if the Holder of such Restricted
Definitive Securities proposes to transfer such Securities to
a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that
such exchange or transfer is in compliance with the Securities
Act, that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act, and such
Restricted Definitive Securities are being exchanged or
transferred in compliance with any applicable blue sky
securities laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.6(d)(ii), the Trustee shall cancel the Definitive Security
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Security.
(iii) A Holder of an Unrestricted Definitive Security may
exchange such Security for a beneficial interest in an Unrestricted
Global Security or transfer such Unrestricted Definitive Securities to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time. Upon receipt
of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Security and increase or cause
to be increased the aggregate principal amount of one of the
Unrestricted Global Securities.
If any such exchange or transfer from a Definitive Security to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii)
37
above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of beneficial interests
transferred pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES FOR
DEFINITIVE SECURITIES. Upon request by a Holder of Definitive Securities and
such Holder's compliance with the provisions of this Section 2.6(e), the
Registrar shall register the transfer or exchange of Definitive Securities.
Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, pursuant to the
provisions of this Section 2.6(e).
(i) Restricted Definitive Securities may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Security if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver (x) a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof; if applicable.
(ii) Any Restricted Definitive Security may be exchanged by
the Holder thereof for an Unrestricted Definitive Security or
transferred to a Person
38
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker- Dealer pursuant to the Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Securities proposes to exchange such Securities for
an Unrestricted Definitive Security, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof;
(2) if the Holder of such Restricted
Definitive Securities proposes to transfer such Securities to
a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Security, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act, that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act, and such Restricted
39
Definitive Security is being exchanged or transferred in
compliance with any applicable blue sky securities laws of any
State of the United States.
(iii) A Holder of Unrestricted Definitive Securities may
transfer such Securities to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Security. Upon receipt of a request
for such a transfer, the Registrar shall register the Unrestricted
Definitive Securities pursuant to the instructions from the Holder
thereof. Unrestricted Definitive Securities cannot be exchanged for or
transferred to Persons who take delivery thereof in the form of a
Restricted Definitive Security.
(f) EXCHANGE OFFER. Upon the occurrence of an Exchange Offer
in accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with Section 2.2, the
Trustee shall authenticate (i) one or more Unrestricted Global Securities in an
aggregate principal amount equal to the sum of (A) the principal amount of the
beneficial interests in the Restricted Global Securities tendered for acceptance
by Persons that certify in the applicable Letters of Transmittal that they are
not (x) Broker-Dealers, (y) Persons participating in the distribution of the
Exchange Securities or (z) Persons who are affiliates (as defined in Rule 144)
of the Company and accepted for exchange in the Exchange Offer and (B) the
principal amount of Definitive Securities exchanged or transferred for
beneficial interests in Unrestricted Global Securities in connection with the
Exchange Offer pursuant to Section 2.6(d)(ii) and (ii) Definitive Securities in
an aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities accepted for exchange in the Exchange Offer (other than
Definitive Securities described in clause (i)(B) immediately above).
Concurrently with the issuance of such Securities, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company shall execute and, upon receipt of an
authentication order pursuant to Section 2.2, the Trustee shall authenticate and
deliver to the Persons designated by the Holders of Definitive Securities so
accepted Definitive Securities in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of
all Global Securities and Definitive Securities issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) PRIVATE PLACEMENT LEGEND.
40
(A) Except as permitted by subparagraph (B) below,
each Global Security and each Definitive Security (and all
Securities issued in exchange therefor or substitution
thereof) shall appear the legend in substantially the
following form:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGIS TERED 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 SECURITY 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 SECURITY OR A BENEFICIAL INTEREST
HEREIN IN ACCORDANCE WITH THE TERMS OF THE INDENTURE RELATING TO THIS
SECURITY AND IN COMPLI ANCE 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 SECURI TIES ACT AS IN EFFECT ON THE DATE
OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS
SECURITY 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 TRANSAC TION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURI TIES ACT, (E) TO AN IAI THAT,
PRIOR TO SUCH TRANSFER, FUR NISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN
41
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANS FER OF THIS
SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY 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 SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE 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 SECURITY IN VIOLATION OF THE FOREGO ING."
(B) Notwithstanding the foregoing, (x) any Global
Security or Definitive Security issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii),
(e)(iii) or (f) to this Section 2.6 (and all Securities issued
in exchange therefor or substitution thereof) (y) Additional
Securities, if any, issued pursuant to a registration
statement filed with the SEC under the Securities Act, shall
not bear the Private Placement Legend.
(ii) GLOBAL SECURITY LEGEND. To the extent required by the
Deposi tary, each Global Security shall bear a legend in substantially
the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS
42
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND
IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSU
ANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL SECU RITY MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE
INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COM PANY."
(iii) REGULATION S TEMPORARY GLOBAL SECURITY LEGEND. To the
extent required by the Depositary, the Regulation S Temporary Global
Security shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF
INTEREST DURING THE PERIOD IN WHICH SUCH HOLDER HOLDS THIS SECURITY.
NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS SECURITY."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITIES. At
such time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Security shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security, by the Trustee or by the
Registrar at the direction of the Trustee, to reflect such reduction; and if the
beneficial
43
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security, by the Trustee or by the
Registrar at the direction of the Trustee, to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Definitive Securities upon the Company's order or at the
Registrar's request in accordance with Section 2.2 hereof.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Security or to a Holder of a Definitive
Security for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.2 (fourth paragraph), 2.10,
3.6, 4.10, and 9.5 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Security selected for redemption in whole
or in part, except the unredeemed portion of any Security being
redeemed in part.
(iv) All Global Securities and Definitive Securities issued
upon any registration of transfer or exchange of Global Securities or
Definitive Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Definitive Securities
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Securities during a period
beginning at the opening of business 15 days before the day of any
selection of Securities for redemption under Section 3.2 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
44
Security being redeemed in part or (C) to register the transfer of or
to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company shall
be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 2.2
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.6 to effect a transfer or exchange may be submitted by
facsimile.
(ix) 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 laws.
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.
45
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 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
46
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 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
47
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.
Section 2.14 ISSUANCE OF ADDITIONAL SECURITIES.
The Company shall be entitled, subject to its compliance with
Section 4.9, to issue Additional Securities under this Indenture which shall
have identical terms as the Initial Securities issued on the Issue Date, other
than with respect to the date of issuance, issue price and amount of interest
payable on the first payment date applicable thereto (and, if such Additional
Securities shall be issued in the form of Unrestricted Definitive Securities or
Unrestricted Global Securities, other than with respect to transfer
restrictions). The Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities issued in exchange therefor shall be
treated as a single class for all purposes under this Indenture.
With respect to any Additional Securities, the Company shall
set forth in a resolution of the Board of Directors and an Officers'
Certificate, a copy of each of which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this
Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Securities and the amount of interest payable on the
first payment date applicable thereto; PROVIDED, HOWEVER, that no
Additional Securities may be issued at a price that would cause such
Additional Securities to have "original issue discount" within the
meaning of Section 1273 of the Internal Revenue Code of 1986, as
amended; and
(3) whether such Additional Securities shall be Restricted
Definitive Securities or Restricted Global Securities and issued in the
form of Initial Securities or shall be issued in the form of
Unrestricted Definitive Securities or Unrestricted Global Securities.
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ARTICLE III
OPTIONAL REDEMPTION
Section 3.1 NOTICES TO TRUSTEE.
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
49
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;
(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.
50
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 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.
51
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 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 February 15, 2004, 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
---- ----------
February 15, 2004..................... 103.875%
February 15, 2005..................... 102.583%
February 15, 2006..................... 101.292%
February 15, 2007 and thereafter...... 100.000%
Notwithstanding the foregoing, at any time prior to February 15, 2002,
the Company may also redeem up to 40% of the aggregate principal amount of the
Securities originally outstanding (including the original principal amount of
any Additional Securities) with the net proceeds from any public offering of
Equity Interests of the Company (other than Redeemable Stock) at a Redemption
Price equal to 107.75% 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 (including the original principal amount of
any Additional Securities) 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.
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ARTICLE IV
COVENANTS
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
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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 agency at The Bank of New
York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇.▇., ▇.▇. ▇▇▇▇▇, 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 Section 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.
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(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 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
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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.
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
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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:
(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
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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 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
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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 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
Subsidiaries 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.
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Section 4.8 DIVIDENDS AND PAYMENT RESTRICTIONS.
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 any 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
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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.
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 (other than Additional 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
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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,
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
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(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.
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
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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 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:
(A) 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;
(B) the Purchase Price and the Net Proceeds Payment Date;
(C) that any Security not tendered or accepted for payment will
continue to accrue interest;
(D) that any Security accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Payment Date;
(E) that each Holder of a Security electing to have such Security
purchased pursuant to a Net Proceeds Offer will be required to
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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");
(F) 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 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
(G) 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
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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.
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
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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 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
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(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 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) of the first paragraph 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
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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 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;
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(b) immediately after giving effect to such transaction, no Default and
no Event of Default under this Indenture shall have occurred and be continuing;
(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.
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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 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;
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(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 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,
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(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; or
(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
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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.
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
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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:
(A) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(1) all overdue interest on all Securities,
(2) 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,
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities and
(4) 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
(B) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declara tion of
acceleration, 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
75
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
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.
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A Holder may not pursue a remedy with respect to this Indenture or the
Securities unless:
(A) the Holder has previously given to the Trustee written notice of a
continuing Event of Default;
(B) 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;
(C) 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;
(D) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(E) 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.
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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 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.
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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 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
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exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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.
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(b) Except during the continuance of a Default or an Event of Default:
(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
conclu sively 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
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of its duties hereunder or to take or omit to take any action under this
Indenture or at the 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.
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(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
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or recital herein or any statement in the Securities other than its certificate
of 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 Section 313(a) (but if no event described in TIA
Section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA
Section 313(b). The Trustee shall also transmit by mail all reports as
required by TIA Section 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
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disbursements, advances and expenses incurred by it, except for any such
disburse 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.
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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.
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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 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
Section 310(a)(1) and TIA Section 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 Section 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
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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)
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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
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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.
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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
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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
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into 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:
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(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;
(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; or
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(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
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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.
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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.
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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 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
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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 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
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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;
(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
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(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 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,
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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 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
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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, 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
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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.
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.
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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.
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
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World Color Press, Inc.
The Mill
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
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 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.
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Holders may communicate pursuant to TIA Section 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 Section 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:
(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
107
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 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,
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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.
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.
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, a Registration Rights Agreement. As used in this Indenture, all
references to "interest" on the Securities shall include, for all purposes,
"Liquidated Damages" (as defined therein), if any, payable in respect of all or
a portion of such Securities under the terms of any Registration Rights
Agreement.
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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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
THE BANK OF NEW YORK, Trustee
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
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EXHIBIT A
FORM OF SECURITY
7 3/4% SENIOR SUBORDINATED NOTE DUE 2009
CUSIP:
No. $
-------------------
WORLD COLOR PRESS, INC.
promises to pay to
or registered assigns, the principal sum of ________________ dollars on February
15, 2009.
Interest Payment Dates: February 15 and August 15 commencing August 15, 1999.
Record Dates: February 1 and August 1
Reference is hereby made to the further provisions of this Senior Subordinated
Note due 2009 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.
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IN WITNESS WHEREOF, the Company has caused this certificate to be duly executed
by its duly authorized officers.
WORLD COLOR PRESS, INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION:
This is one of the Securities referred to in the within mentioned Indenture.
Dated: February 22, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Trustee
By:
---------------------------
Authorized Signatory
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[Reverse Side of Security]
7 3/4% SENIOR SUBORDINATED NOTE DUE 2009
[Insert the Global Security Legend, if applicable, pursuant to the
provisions of the Indenture.]
[Insert the Private Placement Legend, if applicable, pursuant to the
provisions of the Indenture.]
[Insert the Regulation S Temporary Global Security Legend, if
applicable, pursuant to the provisions of the Indenture.]
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 7 3/4% per annum from February 22, 1999
[date of issuance of any Additional Securities] until maturity. The Company
will pay interest semiannually on February 15 and August 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 August 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 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.
[Until this Regulation S Temporary Global Security is exchanged for one
or more Regulation S Permanent Global Securities, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Security shall in all other respects be
entitled to the same benefits as other Senior Subordinated Securities under the
Indenture.](1)
--------
(1) Insert this paragraph in Regulation S Temporary Global Security only.
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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 February 1 or August 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, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇.▇.,
▇▇. ▇▇▇▇▇, 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 February 22, 1999 (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 ▇▇.▇▇. 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. The Company shall be entitled, subject to its
compliance with Section 4.9 of the Indenture, to issue Additional Securities
pursuant to Section 2.14 of the Indenture. The Initial Securities issued on the
Issue Date, any Additional Securities and all Exchange Securities issued in
exchange therefor will be treated as a single class for all purposes under the
Indenture.
5. REDEMPTION.
(a) The Company may redeem all or any of the Securities, in whole or in
part, at any time on or after February 15, 2004, at the Redemption Price
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(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
---- ----------
February 15, 2004...........................103.875%
February 15, 2005...........................102.583%
February 15, 2006...........................101.292%
February 15, 2007 or thereafter.............100.000%
Notwithstanding the foregoing, at any time prior to February 15, 2002,
the Company may also redeem up to 40% in aggregate principal amount of the
Securities originally issued (including the original principal amount of any
Additional Securities) with the net proceeds from any public offering of Equity
Interests of the Company (other than Redeemable Stock) at a redemption price
equal to 107.75% 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 (including the original
principal amount of any Additional Securities) 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
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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
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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 exerciseof any trust
or power. The Trustee may withhold from Holders notice of any continuing
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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 Minors 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
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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), (vii) the 6% Convertible Notes and
(viii) the Company's 8 3/8% Senior Subordinated Notes due 2008. 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. As used in this Security, all references to "interest" on the
Security shall include, for all purposes, "Liquidated Damages" (as defined
therein), if any, payable in respect of the Security under the terms of the
applicable Registration Rights Agreement.(2)
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
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------
(2) This paragraph should be included only for the Initial Securities.
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Attention: General Counsel
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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.
--------------------------------------------------------------------------------
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
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substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(3)
The following exchanges of a part of this Global Security for an
interest in another Global Security or for Definitive Securities, or exchanges
of a part of another Global Security or Definitive Securities for an interest in
this Global Security, 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 Principal Amount Security following Trustee or
Exchange of this Global of this Global such decrease (or Securities
Security Security increase) Custodian
------------------------------------------------------------------------------------------------------------------------------------
--------
(3) This schedule should only be added if the Security is issued in global form.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Re: 7 3/4% SENIOR SUBORDINATED SECURITIES DUE 2009 OF WORLD COLOR
PRESS, INC.
Reference is hereby made to the Indenture, dated as of February 22,
1999 (the "Indenture"), between World Color Press, Inc., as issuer (the
"Company"), and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
___________, (the "Transferor") owns and proposes to transfer the
Securit[ies] or interest in such Securit[ies] specified in Annex A hereto, in
the principal amount of $__________ in such Securit[ies] or interests (the
"Transfer"), to ________________ (the "Transferee"), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Security and/or the Definitive Security and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
REGULATION S TEMPORARY GLOBAL
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SECURITY, A REGULATION S PERMANENT GLOBAL SECURITY OR A DEFINITIVE SECURITY
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser) and the interest transferred will be held immediately
thereafter through Euroclear or Cedel. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on Transfer enumerated in the Private Placement Legend printed on the Regulation
S Permanent Global Security, the Regulation S Temporary Global Security and/or
the Definitive Security and in the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A DEFINITIVE SECURITY PURSUANT TO ANY PROVISION OF THE SECURITIES
ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests
in Restricted Global Securities and Restricted Definitive Securities and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company;
or
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(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that the Transfer complies
with the transfer restrictions applicable to beneficial interests in a
Restricted Global Security or Restricted Definitive Securities and the
requirements of the exemption claimed, which certification is supported by
(1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Securities at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the Definitive Securities in the Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Securities or on Restricted
Definitive Securities and in the Indenture and the Securities Act.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any
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applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are no longer required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Security will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities or on
Restricted Definitive Securities and in the Indenture and the Securities Act.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will not be subject to
the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Securities or Restricted Definitive
Securities and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for the
benefit of the Trustee and the Registrar and the benefit of the Company.
---------------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated:__________, ____
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the followings:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in a:
(i) / / 144A Global Security (CUSIP _____), or
(ii) / / Regulation S Global Security (CUSIP _____); or
(b) / / a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in a:
(i) / / 144A Global Security (CUSIP _____), or
(ii) / / Regulation S Global Security (CUSIP _____), or
(iii) / / Unrestricted Global Security (CUSIP _____); or
(b) / / a Restricted Definitive Security; or
(c) / / an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Re: 7 3/4% SENIOR SUBORDINATED SECURITIES DUE 2009 OF WORLD COLOR PRESS, Inc.
(CUSIP __________)
Reference is hereby made to the Indenture, dated as of February 22,
1999 (the "Indenture"), between World Color Press, Inc., as issuer (the
"Company"), and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
__________, (the "Owner") owns and proposes to exchange the
Securit[ies] or interest in such Securit[ies] specified herein, in the principal
amount of $_________ in such Securit[ies] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial interest
in a Restricted Global Security for a beneficial interest in an Unrestricted
Global Security in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Securities and pursuant to and
in accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Security is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for an Unrestricted
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Definitive Security, the Owner hereby certifies (i) the Definitive Security is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act and (iv) the Definitive Security is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with
the Owner's Exchange of a Restricted Definitive Security for a beneficial
interest in an Unrestricted Global Security, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
no longer required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's Exchange of
a Restricted Definitive Security for an Unrestricted Definitive Security, the
Owner hereby certifies (i) the Unrestricted Definitive Security is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive
Security is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTEREST IN RESTRICTED GLOBAL SECURITIES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Security for
a Restricted
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Definitive Security with an equal principal amount, the Owner hereby certifies
that the Restricted Definitive Security is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Security
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Security and
in the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the
Exchange of the Owner's Restricted Definitive Security for a beneficial
interest in a [CHECK ONE] / / 144A Global Security or / / Regulation S Global
Security, with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Securities and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any State of the United States.
Upon consumma tion of the proposed Exchange in accordance with the terms of
the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Restricted Global Security and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for the
benefit of the Trustee and the Registrar and the benefit of the Company.
----------------------------
[Insert Name of Owner]
By:
--------------------------
Name:
Title:
Dated: ___________, ____
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
World Color Press, Inc.
The Bank of New York, as Trustee
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee Administration
Re: 7 3/4% Senior Subordinated Notes due 2009 OF WORLD COLOR
PRESS, INC.
Reference is hereby made to the Indenture, dated as of February 22,
1999 (the "Indenture"), between World Color Press, Inc., as issuer (the
"Company"), and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $___________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Security, or
(b) / / a Definitive Security,
we confirm that:
1. We understand that any subsequent transfer of the Securities or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the Undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
D-1
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Securities or any
interest therein, we will do so only (A) to the Company, (B) in accordance with
Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed letter substan
tially in the form of this letter and, if such transfer is in respect of a
principal amount of Securities, at the time of transfer of less than $250,000,
an Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144 under the Securities Act, (F)
pursuant to an effective registration statement under the Securities Act, or (G)
in accordance with another exemption from the registration requirements of the
Securities Act and based upon an opinion of counsel acceptable to the Company
and we further agree to provide to any person purchasing the Definitive Security
or beneficial interest in a Global Security from us in a transaction meeting the
requirements of clauses (A) through (E) or clause (G) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Securities or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may, reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Securities purchased
by us will bear a legend to the foregoing effect. We further understand that the
Securities purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Securities or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an
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institutional "accredited investor") as to each of which we exercise sole
investment discretion.
The Trustee, the Registrar and the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
------------------------------------
[Insert Name of Accredited Investor]
By:
---------------------------------
Name:
Title:
Dated: __________, ____
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