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EXHIBIT 4.3
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VON HOFFMANN CORPORATION
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13.5% SUBORDINATED EXCHANGE DEBENTURES DUE 2009
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INDENTURE
DATED AS OF OCTOBER 16, 1998
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MARINE MIDLAND BANK
Trustee
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CROSS-REFERENCE TABLE*
<Table>
<Caption>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310 (a)(1)................................................. 7.10
(a)(2)................................................. 7.10
(a)(3) ................................................ N.A.
(a)(4)................................................. N.A.
(a)(5)................................................. 7.10
(b) ................................................... 7.03; 7.10
(c) ................................................... N.A.
311 (a) ................................................... 7.11
(b) ................................................... 7.11
(c) ................................................... N.A.
312 (a).................................................... 2.05
(b).................................................... 13.03
(c) ................................................... 13.03
313 (a) ................................................... 7.06
(b)(1) ................................................ N.A.
(b)(2) ................................................ 7.06; 7.07
(c) ................................................... 7.06;13.02
(d).................................................... 7.06
314 (a) ................................................... 4.03;13.05
(b) ................................................... N.A.
(c)(1) ................................................ 13.04
(c)(2) ................................................ 13.04
(c)(3) ................................................ N.A.
(d).................................................... N.A.
(e) .................................................. 13.05
(f).................................................... N.A.
315 (a).................................................... 7.01
(b).................................................... 7.05,13.02
(c) .................................................. 7.01
(d).................................................... 7.01
(e).................................................... 6.11
316 (a)(last sentence) .................................... 2.09
(a)(1)(A).............................................. 6.05
(a)(1)(B) ............................................. 6.04
(a)(2) ................................................ N.A.
(b) ................................................... 6.07
(c) ................................................... N.A.
317 (a)(1) ................................................ 6.08
(a)(2)................................................. 6.09
(b) ................................................... 2.04
318 (a).................................................... 13.01
(b).................................................... N.A.
(c).................................................... 13.01
</Table>
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
<Table>
<Caption>
PAGE
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...............................1
Section 1.01. Definitions..............................................................1
Section 1.02. Other Definitions........................................................9
Section 1.03. Incorporation by Reference of Trust Indenture Act........................9
Section 1.04. Rules of Construction...................................................10
ARTICLE 2 THE DEBENTURES..........................................................10
Section 2.01. Form and Dating.........................................................10
Section 2.02. Execution and Authentication............................................11
Section 2.03. Registrar and Paying Agent..............................................11
Section 2.04. Paying Agent to Hold Money in Trust.....................................12
Section 2.05. Holder Lists............................................................12
Section 2.06. Transfer and Exchange...................................................12
Section 2.07. Replacement Debentures..................................................25
Section 2.08. Outstanding Debentures..................................................26
Section 2.09. Treasury Debentures.....................................................26
Section 2.10. Temporary Debentures....................................................26
Section 2.11. Cancellation............................................................27
Section 2.12. Defaulted Interest......................................................27
Section 2.13. Record Date.............................................................27
Section 2.14. Computation of Interest.................................................27
Section 2.15. CUSIP Number............................................................28
Section 2.16. Certificate Regarding Interest..........................................28
ARTICLE 3 REDEMPTION AND PREPAYMENT...............................................28
Section 3.01. Notices to Trustee......................................................28
Section 3.02. Selection of Debentures to be Redeemed or Purchased.....................28
Section 3.03. Notice of Redemption....................................................29
Section 3.04. Effect of Notice of Redemption..........................................30
Section 3.05. Deposit of Redemption or Purchase Price.................................30
Section 3.06. Debentures Redeemed in Part.............................................31
Section 3.07. Optional Redemption.....................................................31
Section 3.08. Mandatory Redemption....................................................31
Section 3.09. Change of Control Offer.................................................31
ARTICLE 4 COVENANTS...............................................................33
Section 4.01. Payment of Debentures...................................................33
Section 4.02. Maintenance of Office or Agency.........................................34
</Table>
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TABLE OF CONTENTS
(CONTINUED)
<Table>
<Caption>
PAGE
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Section 4.03. SEC Reports.............................................................34
Section 4.04. Compliance Certificate..................................................35
Section 4.05. Taxes...................................................................35
Section 4.06. Stay, Extension and Usury Laws..........................................36
Section 4.07. Restricted Payments.....................................................36
Section 4.08. [Intentionally Omitted].................................................36
Section 4.09. [Intentionally Omitted].................................................36
Section 4.10. [Intentionally Omitted].................................................36
Section 4.11. [Intentionally Omitted].................................................36
Section 4.12. [Intentionally Omitted].................................................36
Section 4.13. Offer to Purchase Upon Change of Control................................36
Section 4.14. Corporate Existence.....................................................37
ARTICLE 5 SUCCESSORS..............................................................38
Section 5.01. Merger, Consolidation or Sale of Assets.................................38
Section 5.02. Successor Corporation Substituted.......................................38
ARTICLE 6 DEFAULTS AND REMEDIES...................................................39
Section 6.01. Events of Default.......................................................39
Section 6.02. Acceleration............................................................40
Section 6.03. Other Remedies..........................................................41
Section 6.04. Waiver of Past Defaults.................................................41
Section 6.05. Control by Majority.....................................................42
Section 6.06. Limitation on Suits.....................................................42
Section 6.07. Rights of Holders of Debentures to Receive Payment......................42
Section 6.08. Collection Suit by Trustee..............................................43
Section 6.09. Trustee MayFile Proofs of Claim.........................................43
Section 6.10. Priorities..............................................................43
Section 6.11. Undertaking for Costs...................................................44
ARTICLE 7 TRUSTEE.................................................................44
Section 7.01. Duties of Trustee.......................................................44
Section 7.02. Rights of Trustee.......................................................46
Section 7.03. Individual Rights of Trustee............................................47
Section 7.04. Trustee's Disclaimer....................................................47
Section 7.05. Notice of Defaults......................................................47
Section 7.06. Reports by Trustee to Holders of the Debentures.........................47
Section 7.07. Compensation and Indemnity..............................................48
Section 7.08. Replacement of Trustee..................................................49
Section 7.09. Successor Trustee by Merger, etc........................................50
</Table>
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TABLE OF CONTENTS
(CONTINUED)
<Table>
<Caption>
PAGE
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Section 7.10. Eligibility; Disqualification...........................................50
Section 7.11. Preferential Collection of Claims Against The Company...................50
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................50
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance................50
Section 8.02. Legal Defeasance and Discharge..........................................50
Section 8.03. Covenant Defeasance.....................................................51
Section 8.04. Conditions to Legal or Covenant Defeasance..............................51
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions..........................................53
Section 8.06. Repayment to The Company................................................53
Section 8.07. Reinstatement...........................................................54
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER........................................54
Section 9.01. Without Consent of Holders of the Debentures............................54
Section 9.02. With Consent of Holders of Debentures...................................55
Section 9.03. Compliance with Trust Indenture Act.....................................56
Section 9.04. Revocation and Effect of Consents.......................................56
Section 9.05. Notation on or Exchange of Debentures...................................57
Section 9.06. Trustee to Sign Amendments, etc.........................................57
ARTICLE 10 SUBORDINATION...........................................................57
Section 10.01. Agreement to Subordinate................................................57
Section 10.02. Liquidation; Dissolution; Bankruptcy....................................58
Section 10.03. Default on Designated Senior Debt.......................................58
Section 10.04. Acceleration of Debentures..............................................59
Section 10.05. When Distribution Must Be Paid Over.....................................59
Section 10.06. Notice by Company.......................................................60
Section 10.07. Subrogation.............................................................60
Section 10.08. Relative Rights.........................................................60
Section 10.09. Subordination MayNot Be Impaired by Company.............................60
Section 10.10. Distribution or Notice to Representative................................61
Section 10.11. Rights of Trustee and Paying Agent......................................61
Section 10.12. Authorization to Effect Subordination...................................61
Section 10.13. Amendments..............................................................62
Section 10.14. No Waiver of Subordination Provisions...................................62
Section 10.15. Certain Definitions.....................................................62
</Table>
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TABLE OF CONTENTS
(CONTINUED)
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<Caption>
PAGE
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ARTICLE 11 MISCELLANEOUS...........................................................62
Section 11.01. Trust Indenture Act Controls............................................62
Section 11.02. Notices.................................................................62
Section 11.03. Communication by Holders of Debentures with Other Holders of Debentures.64
Section 11.04. Certificate and Opinion as to Conditions Precedent......................64
Section 11.05. Statements Required in Certificate or Opinion...........................64
Section 11.06. Rules by Trustee and Agents.............................................65
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders............................................................65
Section 11.08. Governing Law...........................................................65
Section 11.09. No Adverse Interpretation of Other Agreements...........................65
Section 11.10. Successors..............................................................65
Section 11.11. Severability............................................................65
Section 11.12. Counterpart Originals...................................................65
Section 11.13. Table of Contents, Headings, etc........................................66
</Table>
EXHIBITS
Exhibit A FORM OF DEBENTURE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
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Indenture, dated as of October 16, 1998, between Von Hoffmann Corporation,
a Delaware corporation (the "COMPANY"), and Marine Midland Bank, as trustee (the
"TRUSTEE").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the holders of the Company's 13.5%
Subordinated Exchange Debentures due 2009 (the "EXCHANGE DEBENTURES") and the
Company's Series B 13.5% Subordinated Exchange Debentures due 2009 (the "SERIES
B DEBENTURES" and, together with the Exchange Debentures, the "DEBENTURES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL DEBENTURE" means the global Debenture in the form of EXHIBIT A
hereto bearing the Global Debenture Legend and the Private Placement Legend and
deposited with and registered in the name of the Depository or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Debentures issued to QIBs in exchange for shares of Preferred Stock that are
Transfer Restricted Securities.
"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. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange of
beneficial interests in a Global Debenture, the rules and procedures of the
Depository that apply to such transfer and exchange.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the Company or (except
in the case of the definition of Change of Control) any authorized committee of
such board of directors.
"BUSINESS DAY" means any day other than a Legal Holiday.
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"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 that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"CERTIFICATE OF DESIGNATIONS" means the Amended and Restated Certificate of
Designations, Preferences and Rights relating to the Preferred Stock.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d)(2) of
the Exchange Act), other than any person or group comprised solely of the
Initial Investors, becomes the "beneficial owner" (as such term is defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is currently exercisable or is exercisable
only upon the occurrence of a subsequent condition), by way of merger,
consolidation or otherwise, of 50% or more of the voting power of all classes of
voting securities of the Company and such person or group beneficially owns a
greater percentage of the voting power of all classes of voting securities of
the Company than that beneficially owned by the Initial Investors; (ii) the
consummation of a sale or transfer of all or substantially all of the assets of
the Company or VHP to any person or group (as defined above), other than any
person or group comprised solely of the Initial Investors or (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company, together with any new
directors whose election was approved by a vote of a majority of directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for the election was previously so approved, cease
for any reason to constitute a majority of the directors of the Company then in
office, other than as a result of election of removal of directors, or a
reduction of the number of directors comprising the Board of Directors of the
Company, pursuant to the provisions governing the election and removal of
directors of the Certificate of Designations or the Shareholders Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means Von Hoffmann Corporation, a Delaware corporation.
"CORPORATE TRUST OFFICE" means the corporate trust office of the Trustee at
such location designated by the Trustee.
"DEBENTURES" means the Exchange Debentures and the Series B Debentures.
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"DEBENTURE CUSTODIAN" means the Trustee, as custodian for the Depository
with respect to the Debentures in global form, or any successor entity thereto.
"DEBENTURE OBLIGATIONS" means all Obligations with respect to the
Debentures, including, without limitation, principal, premium, if any, and
interest payable pursuant to the terms of the Debentures (including upon
acceleration or redemption thereof), together with and including any amounts
received or receivable upon the exercise of rights of rescission or other rights
of action (including claims for damages) or otherwise.
"DEFAULT" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"DEFINITIVE DEBENTURES" means a certificated Debenture registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of EXHIBIT A hereto, except that such Debenture shall not bear the
Global Debenture Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Debenture" attached thereto.
"DEPOSITORY" means, with respect to the Debentures issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Debentures, until a successor shall have been
appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depository" shall mean or include such successor.
"DESIGNATED SENIOR DEBT," means (i) any Obligations of the Company under
the New Credit Agreement and (ii) in the event no Indebtedness is outstanding
under the New Credit Agreement, any other Senior Debt the principal amount of
which is $25.0 million or more and that has been designated by the Company as
"Designated Senior Debt."
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Debentures mature.
"DLJMB" means DLJ Merchant Banking Partners II, L.P. and its Affiliates.
"DLJSC" means Donaldson, Lufkin & Jenrette Securities Corporation.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE DEBENTURES" means the Company's 13.5% Subordinated Exchange
Debentures due 2009.
3
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"EXCHANGE OFFER" means the offer by the Company to Holders to exchange
Series B Debentures for Exchange Debentures.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Registration Rights Agreement.
"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 have been approved by a significant segment of the accounting
profession, which are applicable as of the date of determination.
"GLOBAL DEBENTURES" means, individually and collectively, each of the
Restricted Global Debentures and the Unrestricted Global Debentures, in the form
of EXHIBIT A hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"GLOBAL DEBENTURE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Debentures issued
under this Indenture.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"HOLDER" means a Person in whose name a Debenture is registered.
"IAI GLOBAL DEBENTURE" means the global Debenture in the form of EXHIBIT A
hereto bearing the Global Debenture Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depository or
its nominee that will be issued to Institutional Accredited Investors in
exchange for shares of Preferred Stock that are Transfer Restricted Securities.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by
4
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such Person) and, to the extent not otherwise included, the Guarantee by such
Person of any Indebtedness of any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time.
"INDIRECT PARTICIPANT" means a Person who holds an interest through a
Participant.
"INITIAL INVESTORS" means DLJMB, ZS and the Management Holders and, in each
case, their respective permitted assigns under the Shareholders Agreement.
"INITIAL PURCHASER" means Donaldson, Lufkin & Jenrette Securities
Corporation.
"INSTITUTIONAL ACCREDITED INVESTOR" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal corporate
trust office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment shall 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.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Debentures for use by such Holders in
connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
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 a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"LIQUIDATION VALUE" has the meaning set forth in the Certificate of
Designations.
"MANAGEMENT EQUITY INTERESTS" means Equity Interests of Holdings held by
any employee of the Company or any of its Subsidiaries.
"MANAGEMENT HOLDERS" means holders of Management Equity Interests on the
date that the Preferred Stock was originally issued by the Company.
"MERGER AGREEMENT" means that certain agreement and plan of merger, dated
April 3, 1997, among DLJMB, VH Acquisition, Inc., ZS and Robert A. Uhlenhop.
"MOODY'S" means Moody's Investors Service, Inc.
5
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"NEW CREDIT AGREEMENT" means that certain credit agreement, dated as of May
22, 1997, by and among the Company, DLJ Capital Funding, Inc. and the lenders
party thereto, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time,
including any agreement (i) extending or shortening the maturity of any
Indebtedness incurred thereunder or contemplated thereby, (ii) adding or
deleting borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness incurred thereunder or available to be borrowed thereunder or (iv)
otherwise altering the terms and conditions thereof.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness, including any guarantees of such
Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 11.04
hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 11.04 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"PARTICIPANT" means, with respect to DTC, a Person who has an account with
DTC.
"PERMITTED JUNIOR SECURITIES" means Equity Interests in the Company or debt
securities of the Company that are subordinated to all Senior Debt (and any debt
securities issued in exchange for Senior Debt) to substantially the same extent
as, or to a greater extent than, the Debentures are subordinated to Senior Debt.
"PERSON" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PREFERRED STOCK" means the Company's 13.5% Senior Exchangeable Preferred
Stock due 2009 and the Company's Series B 13.5% Senior Exchangeable Preferred
Stock due 2009.
"PRIVATE PLACEMENT LEGEND" means the legend in the form set forth in
Section 2.06(e) hereof.
6
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"PUBLIC OFFERING" means any underwritten or best efforts public offering of
shares of common stock of the Company or VHP pursuant to an effective
registration statement under the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of June 13, 1997, by and between the Company and the Initial Purchaser.
"REPRESENTATIVE" means The Bank of Nova Scotia as Administrative Agent
under the New Credit Agreement, or its successor thereunder, or any other
representative of holders of Senior Debt identified pursuant to Section 10.04.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED BENEFICIAL INTEREST" means any beneficial interest of a
Participant or Indirect Participant in the 144A Global Debenture.
"RESTRICTED BROKER DEALER" has the meaning set forth in the Registration
Rights Agreement.
"RESTRICTED DEFINITIVE DEBENTURE" means a Definitive Debenture bearing the
Private Placement Legend.
"RESTRICTED GLOBAL DEBENTURE" means a Global Debenture bearing the Private
Placement Legend.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR DEBT" means (i) all Obligations of the Company under the New Credit
Agreement and under all Hedging Obligations payable to a lender under the New
Credit Agreement or any of its affiliates, including, without limitation,
interest accruing subsequent to the filing of, or which would have accrued but
for the filing of, a petition for bankruptcy, whether or not such interest is an
allowable claim in such bankruptcy proceeding, (ii) all Obligations of the
Company in respect of the VHP Notes and the indenture related thereto, (iii) any
other Indebtedness of the Company unless the
7
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instrument under which such Indebtedness is incurred expressly provides that it
is PARI PASSU or subordinated in right of payment to the Debentures and (iv) all
Obligations with respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (a) any liability for
federal, state, local or other taxes, (b) any Indebtedness of the Company to any
of its Subsidiaries or (c) any trade payables.
"SERIES B DEBENTURES" means the Company's Series B 13.5% Subordinated
Exchange Debentures due 2009.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement, dated as of May
22, 1997, among the Company and the shareholders of the Company named therein.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date hereof.
"TRANSFER RESTRICTED SECURITIES" has the meaning set forth in the
Registration Rights Agreement.
"TRUSTEE" means the Trustee named in the preamble hereto until a successor
replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor.
"UNRESTRICTED GLOBAL DEBENTURE" means a permanent global Debenture in the
form of EXHIBIT A attached hereto that bears the Global Debenture Legend and
that has the "Schedule of Exchanges of Interests in the Global Debenture"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depository, representing a series of Debentures that do not bear
the Private Placement Legend.
"UNRESTRICTED DEFINITIVE DEBENTURE" means one or more Definitive Debentures
that do not bear and are not required to bear the Private Placement Legend.
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"VHP" means Von Hoffmann Press, Inc., a Delaware corporation.
"VHP NOTES" means the 10 3/8% Senior Subordinated Notes due 2007 of VHP.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
"ZS" means ZSVH, L.P. together with ZS VH II L.P., as the context requires.
SECTION 1.02. OTHER DEFINITIONS.
<Table>
<Caption>
TERM DEFINED IN SECTION
"ACCELERATION NOTICE"................................................6.02
"CHANGE OF CONTROL OFFER"............................................4.13
"CHANGE OF CONTROL PAYMENT"..........................................4.13
"CHANGE OF CONTROL PAYMENT DATE".....................................4.13
"COVENANT DEFEASANCE"................................................8.03
"EVENT OF DEFAULT"...................................................6.01
"LEGAL DEFEASANCE"...................................................8.02
"OFFER PERIOD".......................................................3.09
"PAYING AGENT".......................................................2.03
"PAYMENT DEFAULT"....................................................6.01
"PURCHASE DATE"......................................................3.09
"REGISTRAR"..........................................................2.03
"RESTRICTED PAYMENTS"................................................4.07
</Table>
SECTION 1.03. 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 Debentures;
"INDENTURE SECURITY HOLDER" means a Holder of a Debenture;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "institutional trustee" means the Trustee;
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"OBLIGOR" on the Debentures means the Company and any successor
obligor upon the Debentures.
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 therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "OR" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2
THE DEBENTURES
SECTION 2.01. FORM AND DATING.
The Debentures and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A hereto. The Debentures may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Debenture shall be dated the date of its authentication. The
Debentures shall be in denominations of $1,000 and integral multiples thereof,
except to the extent provided in the Certificate of Designations upon issuance
of Debentures in exchange for shares of Preferred Stock and except upon
accretion of interest as provided in the Debentures.
The terms and provisions contained in the Debentures shall constitute, and
are hereby expressly made, a part of this Indenture and 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.
Debentures issued in global form shall be substantially in the form of
EXHIBIT A attached hereto (including the Global Debenture Legend and the
"Schedule of Exchanges
10
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in the Global Debenture" attached thereto). Debentures issued in definitive form
shall be substantially in the form of EXHIBIT A attached hereto (but without the
Global Debenture Legend and without the "Schedule of Exchanges of Interests in
the Global Debenture" attached thereto). Each Global Debenture shall represent
such of the outstanding Debentures as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Debentures from time to time endorsed thereon and that the aggregate principal
amount of outstanding Debentures represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Debenture to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Debentures represented
thereby shall be made by the Trustee or the Debenture Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Debentures for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Debentures
and may be in facsimile form.
If an Officer whose signature is on a Debenture no longer holds that office
at the time a Debenture is authenticated, the Debenture shall nevertheless be
valid.
A Debenture shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Debenture
has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Debentures for original issue in an initial aggregate
principal amount of up to the aggregate Liquidation Value of, plus accumulated
and unpaid dividends on, the Preferred Stock upon exchange of the Debentures for
the Preferred Stock pursuant to the Certificate of Designations. The aggregate
principal amount of Debentures outstanding at any time may not exceed such
amount, plus an amount representing the accretion of interest on the Debentures
as provided therein, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Debentures. An authenticating agent may authenticate Debentures
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 Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Debentures may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Debentures may be presented for payment ("PAYING AGENT").
The Registrar shall keep a register of the Debentures and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying
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agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depository with respect to the Global Debentures.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Debenture Custodian with respect to the Global
Debentures.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or interest on the Debentures, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability for
the money. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Debentures.
SECTION 2.05. 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
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 may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Debentures and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL DEBENTURES. A Global
Debenture may not be transferred as a whole except by the Depository to a
nominee of the Depository, by a nominee of the Depository to the Depository or
to another nominee of the Depository, or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository. All Global
Debentures will be exchanged by the Company for Definitive Debentures if (i) the
Company delivers to the Trustee notice from the Depository that it is unwilling
or unable to continue to act as Depository or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a
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successor Depository is not appointed by the Company within 120 days after the
date of such notice from the Depository or (ii) the Company in its sole
discretion determines that the Global Debentures (in whole but not in part)
should be exchanged for Definitive Debentures and delivers a written notice to
such effect to the Trustee. Upon the occurrence of either of the preceding
events in (i) or (ii) above, Definitive Debentures shall be issued in such names
as the Depository shall instruct the Trustee. Global Debentures also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Debenture authenticated and delivered in exchange for, or in
lieu of, a Global Debenture or any portion thereof, pursuant to Section 2.07 or
2.10 hereof, shall be authenticated and delivered in the form of, and shall be,
a Global Debenture. A Global Debenture may not be exchanged for another
Debenture other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Debenture may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL DEBENTURES. The transfer and exchange of beneficial interests in the
Global Debentures shall be effected through the Depository, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Debentures 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 Debentures 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
DEBENTURE. Beneficial interests in any Restricted Global Debenture may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Debenture in accordance
with the transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Unrestricted Global Debenture may be
transferred only to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Debenture. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL DEBENTURES. In connection with all transfers and exchanges of
beneficial interests (other than a transfer of a beneficial interest in a
Global Debenture to a Person who takes delivery thereof in the form of a
beneficial interest in the same Global Debenture), 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 Depository
in accordance with the Applicable Procedures directing the Depository to
credit or cause to be credited a beneficial interest in another Global
Debenture 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 Depository in accordance with the
Applicable Procedures directing the Depository to cause to be issued a
Definitive Debenture
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in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depository to the Registrar
containing information regarding the Person in whose name such Definitive
Debenture shall be registered to effect the transfer or exchange referred
to in (1) above. Upon an Exchange Offer by the Company in accordance with
Section 2.06(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 Debentures. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Debentures contained in this Indenture, the
Debentures and otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Debenture(s)
pursuant to Section 2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL DEBENTURE. A beneficial interest in any Restricted Global Debenture
may be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Debenture if the transfer
complies with the requirements of clause (ii) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Debenture, then the
transferor must deliver a certificate in the form of EXHIBIT B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Debenture, then the
transferor must deliver (x) a certificate in the form of EXHIBIT
B hereto, including the certifications and certificates and
Opinion of Counsel required by item (2) thereof, if applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL DEBENTURE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL DEBENTURE. A beneficial interest in any Restricted Global Debenture
may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Debenture or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Debenture if the exchange or transfer complies with the requirements of
clause (ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the 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, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Series B Debentures or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
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(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Debenture, 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 Debenture 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 Debenture, a certificate from such
holder in the form of EXHIBIT B hereto, including the
certifications in item (3) thereof; and
(3) in each such case set forth in this subparagraph
(D), an Opinion of Counsel in form reasonably acceptable
to the Registrar 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 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 Debenture has not yet been issued, the
Company shall issue and, upon receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures 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 Debenture cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Debenture.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE DEBENTURES.
(i) If any holder of a beneficial interest in a Restricted
Global Debenture proposes to exchange such beneficial interest for a
Definitive Debenture or to transfer such beneficial interest to a Person
who takes delivery
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thereof in the form of a Definitive Debenture, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such beneficial
interest for a Definitive Debenture, 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
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 (2)(a) thereof;
(D) 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 (2) thereof, if applicable;
(E) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in EXHIBIT B hereto, including the
certifications in item (2)(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in EXHIBIT
B hereto, including the certifications in item (2)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Debenture to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Debenture in the appropriate principal amount. Any Definitive Debenture
issued in exchange for a beneficial interest in a Restricted Global
Debenture pursuant to this Section 2.06(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 Depository and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Debentures to the
Persons in whose names such Debentures are so registered. Any Definitive
Debenture issued in exchange for a beneficial interest in a Restricted
Global Debenture
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pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding 2.06(c)(i) hereof, a holder of a
beneficial interest in a Restricted Global Debenture may exchange such
beneficial interest for an Unrestricted Definitive Debenture or may
transfer such beneficial interest to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Debenture only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Series B Debentures 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 the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such
beneficial interest for a Definitive Debenture 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 Debenture proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Debenture 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 (3) 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 and that
the restrictions on transfer contained herein and in the
Private Placement Legend are not required in order to
maintain compliance with the Securities Act.
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(iii) If any holder of a beneficial interest in an Unrestricted
Global Debenture proposes to exchange such beneficial interest for a
Definitive Debenture or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Debenture, then,
upon satisfaction of the conditions set forth in Section 2.06(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Debenture to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Debenture in the appropriate principal amount. Any Definitive
Debenture issued in exchange for a beneficial interest pursuant to this
Section 2.06(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
Depository and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Debentures to the Persons in whose names such
Debentures are so registered. Any Definitive Debenture issued in exchange
for a beneficial interest pursuant to this section 2.06(c)(iii) shall not
bear the Private Placement Legend. A beneficial interest in an Unrestricted
Global Debenture cannot be exchanged for a Definitive Debenture bearing the
Private Placement Legend or transferred to a Person who takes delivery
thereof in the form of a Definitive Debenture bearing the Private Placement
Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE DEBENTURES FOR
BENEFICIAL INTERESTS.
(i) If any Holder of a Restricted Definitive Debenture
proposes to exchange such Debenture for a beneficial interest in a
Restricted Global Debenture or to transfer such Definitive Debentures to a
Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Debenture, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Debenture
proposes to exchange such Debenture for a beneficial interest in
a Restricted Global Debenture, a certificate from such Holder in
the form of EXHIBIT C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Definitive Debenture 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 Definitive Debenture 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 (2)(a) thereof;
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(D) if such Definitive Debenture 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) and (C) above, a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (2) thereof, if applicable;
(E) if such Definitive Debenture is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in EXHIBIT B hereto, including the
certifications in item (2)(b) thereof; or
(F) if such Definitive Debenture is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in EXHIBIT
B hereto, including the certifications in item (2)(c) thereof,
the Trustee shall cancel the Definitive Debenture, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Debenture, in the case of clause
(B) above, the 144A Global Debenture, and in all other cases, the IAI
Global Debenture.
(ii) A Holder of a Restricted Definitive Debenture may exchange
such Debenture for a beneficial interest in an Unrestricted Global
Debenture or transfer such Restricted Definitive Debenture to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Debenture only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Series B Debentures 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 the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Debentures
proposes to exchange such Debentures for a beneficial
interest in the Unrestricted Global Debenture, a
certificate from such Holder in the form of EXHIBIT C
hereto, including the certifications in item (1)(c)
thereof;
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(2) if the Holder of such Definitive Debentures
proposes to transfer such Debentures to a Person who shall
take delivery thereof in the form of a beneficial interest
in the Unrestricted Global Debenture, a certificate from
such Holder in the form of EXHIBIT B hereto, including the
certifications in item (3) 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 not required in order to
maintain compliance with the Securities Act, and such
Definitive Debentures 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 2.06(d)(ii), the Trustee shall cancel the Definitive Debentures and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Debenture.
(iii) A Holder of an Unrestricted Definitive Debenture may
exchange such Debenture for a beneficial interest in an Unrestricted Global
Debenture or transfer such Definitive Debentures to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Debenture at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Debenture and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Debentures. Prior to
such exchange or transfer, the requesting Holder shall present or surrender
to the Registrar the Definitive Debentures 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.
If any such exchange or transfer from a Definitive Debenture to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Debenture has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures 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 DEBENTURES FOR
DEFINITIVE DEBENTURES. Upon request by a Holder of Definitive Debentures and
such Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Debentures.
Prior to such registration of transfer or
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exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Debentures 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 2.06(e).
(i) Restricted Definitive Debentures may be transferred to and
registered in the name of Persons who take delivery thereof 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; and
(B) 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 (2)
thereof, if applicable.
(ii) Any Restricted Definitive Debenture may be exchanged by
the Holder thereof for an Unrestricted Definitive Debenture or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Debenture if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Series B Debentures 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 the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Debentures proposes to exchange such Debentures for an
Unrestricted Definitive Debenture, a certificate from such
Holder in the form of EXHIBIT C hereto, including the
certifications in item (1)(a) thereof;
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(2) if the Holder of such Restricted Definitive
Debentures proposes to transfer such Debentures to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Debenture, a certificate from such
Holder in the form of EXHIBIT B hereto, including the
certifications in item (3) 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 not required in order to
maintain compliance with the Securities Act, and such
Restricted Definitive Debenture 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 Debentures may
transfer such Debentures to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Debenture. Upon receipt of a request for such
a transfer, the Registrar shall register the Unrestricted Definitive
Debentures pursuant to the instructions from the Holder thereof.
Unrestricted Definitive Debentures cannot be exchanged for or transferred
to Persons who take delivery thereof in the form of a Restricted Definitive
Debenture.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, or if an exchange offer
with respect to the Preferred Stock has occurred pursuant to the Registration
Rights Agreement prior to the original issuance of Debentures, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Debentures in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Debentures tendered for acceptance
by Persons that are not (x) broker-dealers, (y) Persons participating in the
distribution of the Series B Debentures or (z) Persons who are affiliates (as
defined in Rule 144) of the Company and accepted for exchange in the Exchange
Offer and (ii) Definitive Debentures in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Debentures accepted for
exchange in the Exchange Offer or the aggregate Liquidation Value of, plus
accumulated and unpaid dividends on, the shares of Preferred Stock exchanged for
Debentures pursuant to the Certificate of Designations, as the case may be.
Concurrent with the issuance of such Debentures, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Debentures to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Debentures so accepted Definitive Debentures in the appropriate principal
amount.
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(g) LEGENDS. The following legends shall appear on the face of
all Global Debentures and Definitive Debentures issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (b) below, each
Global Debenture and each Definitive Debenture (and all
Debentures issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(B) Notwithstanding the foregoing, any Global Debenture or
Definitive Debenture issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.06 (and all
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Debentures issued in exchange therefor or substitution thereof),
and any Definitive Debenture issued in exchange for shares of
Preferred Stock that are not Transfer Restricted Securities,
shall not bear the Private Placement Legend.
(ii) GLOBAL DEBENTURE LEGEND. Each Global Debenture shall bear
a legend in substantially the following form:
"THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS DEBENTURE) OR ITS 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 PURSUANT TO SECTION 2.07 OF THE
INDENTURE, (II) THIS GLOBAL DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
DEBENTURE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL DEBENTURE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL DEBENTURES. At
such time as all beneficial interests in a particular Global Debenture have been
exchanged for Definitive Debentures or a particular Global Debenture has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Debenture 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 Debenture is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Debenture or for Definitive Debentures, the principal amount of
Debentures represented by such Global Debenture shall be reduced accordingly and
an endorsement shall be made on such Global Debenture, by the Trustee or by the
Depository at the direction of the Trustee, to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Debenture, such other Global Debenture shall be increased accordingly and
an endorsement shall be made on such Global Debenture, by the Trustee or by the
Depository 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 Debentures
and Definitive Debentures upon the Company's written order or at the
Registrar's request.
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(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Debenture or to a Holder of a Definitive
Debenture 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 2.10, 3.06, 4.10, 4.13 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Debenture selected for redemption in whole or
in part, except the unredeemed portion of any Debenture being redeemed in
part.
(iv) All Global Debentures and Definitive Debentures issued
upon any registration of transfer or exchange of Global Debentures or
Definitive Debentures shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Debentures or Definitive Debentures 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 Debentures during a period
beginning at the opening of business 15 days before the day of any
selection of Debentures for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Debenture so selected for redemption in
whole or in part, except the unredeemed portion of any Debenture being
redeemed in part or (C) to register the transfer of or to exchange a
Debenture between a record date and the next succeeding Interest Payment
Date.
(vi) Prior to due presentment for the registration of a
transfer of any Debenture, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Debenture is registered as the
absolute owner of such Debenture for the purpose of receiving payment of
principal of and interest on such Debentures 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 Debentures and
Definitive Debentures in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a transfer or exchange may be submitted by facsimile.
SECTION 2.07. REPLACEMENT DEBENTURES.
If any mutilated Debenture is surrendered to the Trustee, or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Debenture, the Company shall issue and the Trustee, upon the
written order of the
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Company signed by two Officers of the Company, shall authenticate a replacement
Debenture 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 the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer if a Debenture is replaced. The Company may charge for its expenses
in replacing a Debenture.
Every replacement Debenture is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Debentures duly issued hereunder.
SECTION 2.08. OUTSTANDING DEBENTURES.
The Debentures outstanding at any time are all the Debentures authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Debenture effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Debenture does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Debenture.
If a Debenture is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the principal amount of any Debenture is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Debentures payable on that date, then on and after that date such
Debentures shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY DEBENTURES.
In determining whether the Holders of the required principal amount of
Debentures have concurred in any direction, waiver or consent, Debentures owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Debentures that a Trustee knows are so owned
shall be so disregarded.
SECTION 2.10. TEMPORARY DEBENTURES.
Until definitive Debentures are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Debentures upon a written order of
the Company signed by two Officers of the Company. Temporary Debentures shall be
substantially in
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the form of definitive Debentures but may have variations that the Company
considers appropriate for temporary Debentures and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Debentures in exchange for
temporary Debentures.
Holders of temporary Debentures shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Debentures to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Debentures surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Debentures surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Debentures (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all cancelled
Debentures shall be delivered to the Company. The Company may not issue, except
pursuant to an Exchange Offer, new Debentures to replace Debentures that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Debentures, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Debentures and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Debenture and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, PROVIDED that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of the
Debentures entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Debentures shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
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SECTION 2.15. CUSIP NUMBER.
The Company in issuing the Debentures may use a "CUSIP" number, and if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Debentures and that reliance may be
placed only on the other identification numbers printed on the Debentures. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.16. CERTIFICATE REGARDING INTEREST.
Promptly after an Interest Payment Date (as defined in paragraph 1 of the
form of Debenture attached hereto as EXHIBIT A), the Company shall deliver to
the Trustee a certificate signed by an Officer of the Company stating the amount
of interest paid to the Holders and specifying whether such interest accreted
to, and increased, the principal amount of the Debentures, or was paid in cash
to the Holders, in either case, in accordance with paragraph (1) of the form of
Debenture attached hereto as EXHIBIT A. Promptly after receiving such
certificate, the Trustee shall promptly deliver or mail a copy thereof to the
Holders.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Debentures pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 35 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee) an Officers' Certificate setting
forth (i) the paragraph of the Debentures and/or the Section of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the principal amount of Debentures to be redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase Debentures pursuant
to Section 4.13 hereof, it shall furnish to the Trustee, at least 30 days before
the scheduled purchase date, an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the offer to purchase shall occur,
(ii) the terms of the offer, (iii) the principal amount of Debentures to be
purchased, (iv) the purchase price, (v) the purchase date and (vi) and further
setting forth a statement to the effect that a Change of Control has occurred.
SECTION 3.02. SELECTION OF DEBENTURES TO BE REDEEMED OR PURCHASED.
If less than all of the Debentures are to be redeemed at any time,
selection of the Debentures for redemption shall be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the
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Debentures are listed, or, if the Debentures are not so listed, on a pro rata
basis, by lot or by such other method as the Trustee deems fair and appropriate;
PROVIDED that no Debentures with a principal amount of $1,000 or less shall be
redeemed in part.
The Trustee shall promptly notify the Company in writing of the Debentures
selected for redemption and, in the case of any Debenture selected for partial
purchase or redemption, the principal amount thereof to be redeemed. Debentures
and portions of Debentures selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Debentures of a Holder are to be
purchased or redeemed, the entire outstanding amount of Debentures held by such
Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Debentures
called for redemption also apply to portions of Debentures called for
redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Debentures are to be redeemed.
The notice shall identify the Debentures to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Debentures and accrued
interest;
(3) if any Debenture is being redeemed in part, the portion of
the principal amount of such Debentures to be redeemed and
that, after the redemption date, upon surrender of such
Debenture, a new Debenture or Debentures in principal
amount equal to the unredeemed portion shall be issued
upon surrender of the original Debenture;
(4) the name and address of the Paying Agent;
(5) that Debentures called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Debentures called for
redemption ceases to accrue on and after the redemption
date;
(7) the paragraph of the Debentures and/or Section of this
Indenture pursuant to which the Debentures called for
redemption are being redeemed; and
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(8) the CUSIP number, provided that no representation is made
as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Debentures.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 35 days prior to the
redemption date (or such shorter period as shall be acceptable to the Trustee),
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Debenture shall not affect the validity of the
proceeding for the redemption of any other Debenture.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Debentures called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued and unpaid interest to such
date. A notice of redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date or the
date on which Debentures must be accepted for purchase pursuant to Section 4.13,
the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Debentures to be redeemed or purchased on that date. The Trustee or the Paying
Agent shall promptly return to the Company upon its written request any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of (including any applicable
premium) and accrued interest on all Debentures to be redeemed or purchased.
If Debentures called for redemption or tendered in a Change of Control
Offer are paid or if the Company has deposited with the Trustee or Paying Agent
money sufficient to pay the redemption or purchase price of and accrued and
unpaid interest on all Debentures to be redeemed or purchased, on and after the
redemption or purchase date, interest shall cease to accrue on the Debentures or
the portions of Debentures called for redemption or tendered and not withdrawn
in a Change of Control Offer (regardless of whether certificates for such
securities are actually surrendered). If a Debenture is redeemed or purchased on
or after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Debenture was registered at the close of business on such record date.
If any Debenture called for redemption or tendered in a Change of Control Offer
shall not be so paid upon surrender because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal from the redemption or
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purchase date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case, at the rate provided
in the Debentures and in Section 4.01 hereof.
SECTION 3.06. DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Debenture equal in principal
amount to the unredeemed portion of the Debenture surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in the next paragraph, Debentures
shall not be redeemable at the Company's option prior to May 15, 2002.
Thereafter, the Debentures shall be subject to redemption at any time at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth below, PLUS any accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
<Table>
<Caption>
Year PERCENTAGE
2002 106.75%
2003 105.40%
2004 104.05%
2005 102.70%
2006 101.35%
2007 and thereafter 100.00%
</Table>
(b) Notwithstanding the foregoing, prior to May 15, 2002, the
Company may redeem all, but not less than all, outstanding Debentures at a
redemption price of 113.5% of the principal amount thereof, plus accrued and
unpaid interest thereon to the redemption date, with the net proceeds of a
Public Offering; PROVIDED that such redemption shall occur within 90 days of the
date of the closing of such Public Offering.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 3.09 and 4.13 hereof, the Company shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Debentures.
SECTION 3.09. CHANGE OF CONTROL OFFER.
In the event that the Company shall be required to commence a Change of
Control Offer pursuant to Section 4.13 hereof, the Company shall follow the
procedures specified below.
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A Change of Control Offer shall commence no later than 30 Business Days
after a Change of Control (unless the Company is not required to make such offer
pursuant to Section 4.13 hereof) and remain open for a period of at least 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "OFFER PERIOD"). No
later than five Business Days after the termination of the Offer Period (the
"PURCHASE DATE"), the Company shall purchase all Debentures tendered in response
to the Change of Control Offer. Payment for any Debentures so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Debenture is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Debentures pursuant to the Change of Control Offer.
Upon the commencement of a Change of Control Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Debentures pursuant to such Change of
Control Offer. The Change of Control Offer shall be made to all Holders. The
notice, which shall govern the terms of the Change of Control Offer, shall
describe the transaction or transactions that constitute the Change of Control
and shall state:
(a) that the Change of Control Offer is being made pursuant to
this Section 3.09 and Section 4.13 hereof and the length of time the Change of
Control Offer shall remain open;
(b) the purchase price and the Purchase Date;
(c) that any Debenture not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Debenture accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Debenture purchased
pursuant to a Change of Control Offer shall be required to surrender the
Debenture, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Debenture duly completed, or transfer by book-entry transfer, to
the Company, the Depository or the Paying Agent at the address specified in the
notice not later than the close of business on the last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election
if the Company, the Depository or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Debenture the Holder
32
<Page>
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Debenture purchased; and
(g) that Holders whose Debentures were purchased only in part
shall be issued new Debentures equal in principal amount to the unpurchased
portion of the Debentures surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. (New York City time) on the Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to the
Debentures to be purchased, together with accrued and unpaid interest thereon,
to be held for payment in accordance with the terms of this Section 3.09. On the
Purchase Date, the Company shall, to the extent lawful, (i) accept for payment
all Debentures or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deliver or cause the Paying Agent or Depository, as the case may be,
to deliver to the Trustee Debentures so accepted and (iii) deliver to the
Trustee an Officers' Certificate stating that such Debentures or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.09. The Company, the Depository or the Paying Agent, as the case
may be, shall promptly (but in any case not later than three Business Days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Debentures tendered by such Holder and accepted by the
Company for purchase, plus any accrued and unpaid interest thereon, and the
Company shall promptly issue a new Debenture, and the Trustee shall authenticate
and mail or deliver such new Debenture, to such Holder, equal in principal
amount to any unpurchased portion of such Holder's Debentures surrendered. Any
Debenture not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce in a newspaper of
general circulation or in a press release provided to a nationally recognized
financial wire service the results of the Change of Control Offer on the
Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF DEBENTURES.
The Company shall pay or cause to be paid the principal of and premium, if
any, and interest on the Debentures (or, if applicable, interest shall accrete
to, and increase, the principal amount of each Debenture) on the dates and in
the manner provided in the Debentures. Principal, premium, if any, and interest
shall be considered paid for all purposes hereunder on the date the Paying Agent
(if other than the Company) holds, as of 10:00 a.m. (New York City time), money
deposited by the Company in immediately
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<Page>
available funds and designated for and sufficient to pay all such 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 at the rate equal to
1% per annum in excess of the then applicable interest rate on the Debentures 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 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee or Registrar) where Debentures may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Debentures 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 hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
SECTION 4.03. SEC REPORTS.
So long as any Debentures are outstanding, the Company shall furnish to the
Holders of Debentures all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its Subsidiaries and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants. In addition, for so
long as any Debentures remain outstanding, the Company shall furnish to the
Holders, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act. HOWEVER, to the extent not required
by the TIA, the Company shall not be required to make any reports pursuant to
the foregoing two sentences to any Holder of Debentures that the Company
reasonably believes to be a competitor of the Company.
The financial information to be distributed to Holders of Debentures shall
be filed with the Trustee and mailed to the Holders at their addresses appearing
in the register of Debentures maintained by the Registrar within 120 days after
the end of the Company's fiscal years and within 60 days after the end of each
of the first three quarters of each such fiscal year.
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<Page>
The Company shall provide the Trustee with a sufficient number of copies of
all reports and other documents and information and, if requested by the
Company, the Trustee will deliver such reports to the Holders under this Section
4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, and that, to the best of his or her knowledge, each
entity has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto).
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, in connection with the year-end
financial statements delivered pursuant to Section 4.03 hereof, the Company
shall use its best efforts to deliver a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article 4 or Section
5.01 hereof or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation. In the event that such written statement of the
Company's independent public accountants cannot be obtained, the Company shall
deliver an Officers' Certificate certifying that it has used its best efforts to
obtain such statements and was unable to do so.
The Company shall, so long as any of the Debentures are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments and governmental levies,
except such as are contested in good faith and by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP.
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SECTION 4.06. 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 time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, (i) declare or pay any dividend or make any other
payment or distribution on account of the Company's Equity Interests (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company; or (iii) make any payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the Debentures, except a payment
of interest or a payment of principal at Stated Maturity (all such payments and
other actions set forth in clauses (i) through (iii) above being collectively
referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving
effect to such Restricted Payment, no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof.
SECTION 4.08. [INTENTIONALLY OMITTED].
SECTION 4.09. [INTENTIONALLY OMITTED].
SECTION 4.10. [INTENTIONALLY OMITTED].
SECTION 4.11. [INTENTIONALLY OMITTED].
SECTION 4.12. [INTENTIONALLY OMITTED].
SECTION 4.13. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Debentures shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Debentures pursuant to
the offer described below (the "CHANGE OF CONTROL OFFER") at an offer price in
cash equal to 101% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon to the date of purchase (the "CHANGE OF CONTROL
PAYMENT"). Within 30 days following any Change of Control, the Company will mail
a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Debentures on the
date specified in such notice, which date shall be no earlier than 30 days and
no
36
<Page>
later than 60 days from the date such notice is mailed (the "CHANGE OF CONTROL
PAYMENT DATE"), pursuant to the procedures required hereby and described in such
notice. The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Debentures as a result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Debentures or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all
Debentures or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Debentures so accepted together with an Officers'
Certificate stating the aggregate principal amount of Debentures or portions
thereof being purchased by the Company. The Paying Agent will promptly mail to
each Holder of Debentures so tendered the Change of Control Payment for such
Debentures, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Debenture equal in principal
amount to any unpurchased portion of the Debentures surrendered, if any;
PROVIDED that each such new Debenture will be in a principal amount of $1,000 or
an integral multiple thereof. Prior to complying with the provisions of this
covenant, but in any event within 90 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Debentures required by this covenant. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
herein applicable to a Change of Control Offer made by the Company and purchases
all Debentures validly tendered and not withdrawn under such Change of Control
Offer.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Section 4.13 and Article 5 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 of its Subsidiaries in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; PROVIDED that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Debentures.
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<Page>
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another corporation, Person or entity
unless (i) the Company is the surviving corporation or the entity or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the entity or Person formed by or surviving any such consolidation or
merger (if other than the Company) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Debentures and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; and (iii) immediately after such transaction no Default or Event
of Default exists; and the Company delivers an Officers' Certificate and an
Opinion of Counsel to the Trustee stating (A) that the proposed transaction and
supplemental indenture comply with this Indenture and (B) that the Trustee shall
be entitled to conclusively rely upon such Officers' Certificate and Opinion of
Counsel.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and shall exercise every
right and power of the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; PROVIDED, that in
the case of any sale, assignment, transfer, lease, conveyance, or other
disposition of less than all of the assets of the predecessor Company, the
predecessor Company shall not be released or discharged from the obligation to
pay the principal of or interest on the Debentures.
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<Page>
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on
the Debentures (whether or not prohibited by Article 10 hereof);
(ii) default in payment when due of principal of or premium, if
any, on the Debentures (whether or not prohibited by Article 10 hereof);
(iii) failure by the Company or any Subsidiary to comply with
the provisions described under Sections 3.09, 4.07 or 4.13 hereof;
(iv) failure by the Company for 60 days after notice to comply
with its other agreements in this Indenture or the Debentures; or
(v) the Company, any of its Significant Subsidiaries or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case in which it is the debtor,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability generally to pay its
debts as the same become due; or
(vi) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company, any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary, in an
involuntary case in which it is the debtor,
(B) appoints a Custodian of the Company, any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken together, would
39
<Page>
constitute a Significant Subsidiary, or for all or substantially
all of the property of the Company, any of its Significant
Subsidiaries or any group of Subsidiaries that taken, taken
together, would constitute a Significant Subsidiary, or
(C) orders the liquidation of the Company, any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary,
and the order or decree contemplated in clause (A), (B) or (C) remains
unstayed and in effect for 60 consecutive days.
To the extent that the last day of the period referred to in clause (i),
(iv) or (vi) of the immediately preceding paragraph is not a Business Day, then
the first Business Day following such day shall be deemed to be the last day of
the period referred to in such clause. Any "day" will be deemed to end as of
11:59 p.m., New York City time.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default with respect to the
Company specified in clause (v) or (vi) of Section 6.01 hereof) occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Debentures may declare the unpaid principal of and premium,
if any, and interest on all the Debentures to be due and payable by notice in
writing to the Company (and the Trustee, if given by the Holders) specifying the
respective Event of Default and that it is a "notice of acceleration" (the
"ACCELERATION NOTICE"), and the same shall become immediately due and payable;
PROVIDED, HOWEVER, that, so long as any Indebtedness permitted to be incurred
pursuant to the New Credit Agreement shall be outstanding, no such acceleration
shall be effective until the earlier of (i) acceleration of any such
Indebtedness under the New Credit Agreement or (ii) five Business Days after the
giving of written notice to the Company and the Representative of such
acceleration. If an Event of Default with respect to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary specified in clause (v) or (vi) of Section
6.01 hereof occurs, all outstanding Debentures shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. Holders of the Debentures may not enforce this
Indenture or the Debentures except as provided herein.
The Holders of a majority in principal amount of the then outstanding
Debentures by written notice to the Trustee may rescind a Default or Event of
Default (except nonpayment of principal or interest that has become due solely
because of the acceleration).
In the case of any Event of Default 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 that the Company would have had
to pay if the Company then had elected to redeem the Debentures pursuant to the
optional redemption
40
<Page>
provisions of Section 3.07(a) hereof, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Debentures. If an Event of Default occurs prior to May 15,
2002, by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Debentures prior to May 15, 2002, then the amount payable in
respect of such Debentures for purposes of this paragraph for each of the
twelve-month periods beginning on May 15 of the years indicated below shall be
as set forth below, expressed as percentages of the principal amount that would
otherwise be due but for the provisions of this sentence, plus accrued and
unpaid interest to the date of payment:
<Table>
<Caption>
Year PERCENTAGE
1997 113.50%
1998 112.15%
1999 110.80%
2000 109.45%
2001 108.10%
</Table>
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of and premium, if any, and
interest on the Debentures or to enforce the performance of any provision of the
Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Debenture in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of at least a majority in principal amount of the Debentures then
outstanding (including consents obtained in connection with a tender offer or
exchange for Debentures) by notice to the Trustee may on behalf of the Holders
of all of the Debentures waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Debentures. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
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SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Debentures may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Debentures or that may
involve the Trustee in personal liability. The Trustee may take any other action
which it deems proper which is not inconsistent with any such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Debenture may pursue a remedy with respect to this Indenture
or the Debentures only if:
(a) Holder of a Debenture gives to the Trustee written notice
of a continuing Event of Default or the Trustee receives such notice from the
Company;
(b) the Holders of at least 25% in principal amount of the
then outstanding Debentures make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Debenture or Holders of Debentures offer
and, if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Debentures do not give the Trustee a
direction inconsistent with the request.
A Holder of a Debenture may not use this Indenture to prejudice the rights
of another Holder of a Debenture or to obtain a preference or priority over
another Holder of a Debenture.
SECTION 6.07. RIGHTS OF HOLDERS OF DEBENTURES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Debenture to receive payment of principal of and premium, if any,
and interest on the Debenture on or after the respective due dates expressed in
the Debenture (including in connection with an offer to purchase), 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 such Holder.
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) 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 whole amount of
principal of and premium, if any, and interest remaining unpaid on the
Debentures and interest on overdue principal 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, its agents and counsel.
SECTION 6.09. 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 of the Debentures allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Debentures), its creditors or its
property and shall be entitled and empowered to participate as a member, voting
or otherwise, of any official committee of creditors appointed in such matter
and to collect, receive and distribute any money or other securities or property
payable or deliverable upon the conversion or exchange of the Debentures or 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 7.07 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 7.07 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 properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation,
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expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
SECOND: to holders of Senior Debt to the extent required
by Article 10 hereof;
THIRD: to Holders of Debentures for amounts due and unpaid
on the Debentures for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Debentures for principal,
premium, if any, and interest, respectively;
FOURTH: without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture and the
Debentures; and
FIFTH: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Debentures pursuant to this Section 6.10.
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 the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Debenture
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Debentures.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of
which it has knowledge, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this Indenture
or the TIA and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but
shall not be obligated to verify the contents thereof.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 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 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it (including, in the
Trustee's discretion, payment in cash) against any loss, liability or expense,
including reasonable attorney's fees that might be incurred by it in compliance
with such request or direction.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on the truth of the
statements and correctness of the opinions contained in, and shall be protected
from acting or refraining from acting upon, any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. Prior to taking,
suffering or admitting any action, the Trustee may consult with counsel of the
Trustee's own choosing and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(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 or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall receive and retain financial reports and
statements of the Company, as provided herein, but it shall have no duty to
review or analyze such statements or reports to determine compliance with
covenants or other obligations of the Company.
(h) The Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions or agreements on
the part of the Company, except as set forth herein, but the Trustee may require
of the Company full information and advice as to performance of the aforesaid
covenants, conditions and agreements.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner of
Debentures and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue
as Trustee or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Debentures, it shall not be
accountable for the Company's use of the proceeds from the Debentures or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Debentures or any other document in connection with the sale of the Debentures
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Debentures a notice of the Default or Event of Default within 90 days after
it occurs. Except in the case of a Default or Event of Default in payment on any
Debenture pursuant to Section 6.01(i) or (ii) hereof, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Debentures. The Trustee shall not be required to take notice or be deemed
to have notice of any Default hereunder except failure by the Company to cause
to be made any of the payments to the Trustee required to be made, or an Event
of Default of which the Trustee has actual knowledge, unless the Trustee shall
have been specifically notified in writing of such Default by the Company or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Debentures.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE DEBENTURES.
Within 60 days after each March 15 beginning with the March 15 following
the date of this Indenture, and for so long as Debentures remain outstanding,
the Trustee shall mail to the Holders of the Debentures 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).
A copy of each report at the time of its mailing to the Holders of
Debentures shall be mailed to the Company and filed with the Commission and each
stock exchange on
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which the Company has informed the Trustee in writing the Debentures are listed
in accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee when the Debentures are listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. To the
extent permitted by law, 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 promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. 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 obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Debentures on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and
interest on particular Debentures. Such Lien shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(v) or (vi) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
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SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Debentures may remove the Trustee by so
notifying the Trustee and the Company in writing. 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.
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 Holders
of a majority in principal amount of the then outstanding Debentures may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding
Debentures may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written request by any Holder of a Debenture who has
been a Holder of a Debenture for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Debenture may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and the duties of the Trustee under
this Indenture. The successor Trustee shall mail a notice of its succession to
the Holders of the Debentures. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, PROVIDED that all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or any Agent, as applicable.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities. The Trustee and its direct parent shall at all times have a
combined capital surplus of at least $50.0 million as set forth in its most
recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to 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 therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Debentures upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Debentures on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Debentures, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all of its
other obligations under such Debentures and this Indenture (and the Trustee, on
demand of and at the
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expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Debentures to receive payments in respect of the principal of and premium, if
any, and interest on such Debentures when such payments are due from the trust
referred to in Section 8.04(a); (b) the Company's obligations with respect to
such Debentures under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02
hereof; (c) the rights, powers, trusts, duties and immunities of the Trustee,
including without limitation under Sections 7.07, 8.05 and 8.07 hereof, and the
Company's obligations in connection therewith; and (d) the provisions of this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 3.09, 4.05, 4.07, 4.13 and
4.14 hereof with respect to the outstanding Debentures on and after the date the
conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"),
and the Debentures shall thereafter be deemed not "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Debentures shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Debentures, the Company or any of its Subsidiaries may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Debentures shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(i) through 6.01(iv) hereof shall
not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Debentures:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Debentures, (i) cash in United
States dollars,
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(ii) non-callable Government Securities or (iii) a combination thereof, in such
amounts as shall 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 the principal of and premium, if
any, and interest on the outstanding Debentures on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Debentures are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02 hereof, 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 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 of Counsel shall confirm that, the Holders of the outstanding
Debentures shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall be subject to federal
income tax on the same amounts, in the same manner and at the same time as would
have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, 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 Debentures shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default of Event or Default
resulting from the borrowing of funds to be applied to such deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) 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) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit, the
trust funds shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Debentures over the other creditors of
the Company with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
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(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with; and
(i) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably required.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding
Debentures shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Debentures and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Debentures of all
sums due and to become due thereon in respect of principal, 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 cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Debentures.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the written request
of the Company and be relieved of all liability with respect to any money or
non-callable Government Securities held by it as provided in Section 8.04 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 8.04(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.
SECTION 8.06. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or premium, if any, or
interest on any Debenture and remaining unclaimed for one year after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on its written request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
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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 shall be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, 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 obligations of the Company under this Indenture and the
Debentures shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes
any payment of principal of or premium, if any, or interest on any Debenture
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Debentures to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF THE DEBENTURES.
Notwithstanding Section 9.02 of this Indenture, without the consent of any
Holder of Debentures the Company and the Trustee may amend or supplement this
Indenture or the Debentures:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Debentures in addition to
or in place of certificated Debentures;
(c) to provide for the assumption of the Company's obligations
to the Holders of Debentures in the case of a merger, or consolidation pursuant
to Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of Debentures or that does not adversely
affect the legal rights hereunder of any such Holder; or
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
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Upon the written request of the Company accompanied by a resolution of its
Board of Directors of the Company authorizing the execution of any such amended
or supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF DEBENTURES.
Except as provided below in this Section 9.02, this Indenture or the
Debentures may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Debentures then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer, for Debentures), and, subject to any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of or premium, if any, or interest on the
Debentures, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture or the
Debentures may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Debentures (including consents obtained
in connection with or a tender offer or exchange offer for the Debentures).
Upon the request of the Company accompanied by a resolution of its Board of
Directors of the Company authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Debentures as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company in the execution of such
amended or supplemental Indenture unless such amended or supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may, but shall not be obligated to, enter
into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Debentures
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of each Debenture
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver.
Subject to Sections 6.02, 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Debentures then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the
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Debentures. However, without the consent of each Holder affected, an amendment,
or waiver may not (with respect to any Debenture held by a non-consenting
Holder):
(a) reduce the principal amount of Debentures whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Debenture or alter the provisions with respect to the redemption of the
Debentures (other than provisions relating to Sections 3.09 and 4.13 hereof) in
a manner adverse to the Holders of the Debentures;
(c) reduce the rate of or change the time for payment of
interest on any Debenture;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Debentures (except a
rescission of acceleration of the Debentures by the Holders of at least a
majority in aggregate principal amount of the Debentures and a waiver of the
payment default that resulted from such acceleration);
(e) make any Debenture payable in money other than that stated
in the Debentures;
(f) make any change in Section 6.04 or 6.07 hereof;
(g) waive a redemption payment with respect to any Debenture
(other than a payment required by Section 4.13 hereof); or
(h) make any change in the amendment and waiver provisions of
this Article 9.
In addition, any amendment to the provision of Article 10 of this Indenture
shall require the consent of the Holders of at least 75% in aggregate amount of
Debentures the outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Debentures) if such amendment would
adversely affect the rights of the Holders of Debentures.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Debentures shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Debenture is a continuing consent by the Holder and every
subsequent Holder of a Debenture or portion of a Debenture that evidences the
same debt as the consenting Holder's Debenture, even if notation of the consent
is not made on any
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Debenture. However, any such Holder or subsequent Holder of a Debenture may
revoke the consent as to its Debenture if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Debentures must consent to such amendment,
supplement or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of Debentures furnished
for the Trustee prior to such solicitation pursuant to Section 2.05 hereof or
(ii) such other date as the Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF DEBENTURES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Debenture thereafter authenticated. The Company in
exchange for all Debentures may issue and the Trustee shall authenticate new
Debentures that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until its Board of Directors
approves it. In signing or refusing to sign any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 11.04 hereof, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company in accordance with its
terms.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Debenture agrees, that
the Debenture Obligations shall be subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment in
full in cash or cash equivalents of all Senior Debt, whether outstanding on the
date hereof or thereafter incurred.
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The provisions of this Article 10 shall constitute a continuing offer to
all Persons that, in reliance upon such provisions, become holders or, or
continue to hold Senior Debt; such provisions are made for the benefit of
holders of Senior Debt and they or each of them may enforce the rights of
holders of Senior Debt hereunder, subject to the terms and provisions hereof.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(a) the holders of Senior Debt will be entitled to receive
payment in full in cash or cash equivalents of all Obligations due in
respect of such Senior Debt (including interest after the commencement of
any such proceeding at the rate specified in the applicable Senior Debt)
before the Holders of Debentures will be entitled to receive any payment
with respect to the Debenture Obligations (except that Holders of
Debentures may receive Permitted Junior Securities and payments made from
the trust created pursuant to Article 8 hereof); and
(b) until all Obligations with respect to Senior Debt are paid
in full in cash or cash equivalents, any distribution to which the Holders
of Debentures would be entitled shall be made to the holders of Senior Debt
(except that Holders of Debentures may receive Permitted Junior Securities
and payments made from the trust created pursuant to Article 8 hereof).
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company also may not make any payment upon or in respect of the
Debentures (except that Holders of Debentures may receive Permitted Junior
Securities and payments made from the trust created pursuant to Article 8
hereof) if:
(i) a default in the payment of the principal of or premium,
if any, or interest on, or commitment fees relating to, any Designated
Senior Debt occurs and is continuing beyond any applicable period of grace;
or
(ii) any other default occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior Debt
as to which such default relates to accelerate its maturity and the Trustee
receives a notice of such default (a "PAYMENT BLOCKAGE NOTICE") from the
Company or a Representative with respect to such Designated Senior Debt.
Payments on the Debentures may and shall be resumed (a) in the case of a payment
default, upon the date on which such default is cured or waived and (b) in case
of a nonpayment default, the earlier of the date on which such nonpayment
default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received, unless the maturity of any Designated
Senior Debt has been accelerated. No
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new period of payment blockage may be commenced unless and until 360 days have
elapsed since the effectiveness of the immediately prior payment Blockage
Notice. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the
basis for a subsequent Payment Blockage Notice unless such default shall have
been cured or waived for a period of not less than 90 days.
SECTION 10.04. ACCELERATION OF DEBENTURES.
The Company shall provide the names of the Representatives of the Senior
Debt to the Trustee; PROVIDED, HOWEVER, that the failure to provide such notice
shall not prejudice any of the rights hereunder of the holders of Senior Debt.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives any payment of any Obligations with
respect to the Debenture Obligations at a time when the Trustee has received
written notice at least two Business Days prior to such payment is prohibited by
Section 10.02 or 10.03 hereof, such payment shall be held by the Trustee for the
benefit of, and shall be paid forthwith over and delivered, upon written request
to, the holders of Senior Debt as their interest may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt may have been issued, as their interest may appear, for application
to the payment of all Obligations with respect to Senior Debt remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
In the event that any Holder receives any payment of any Obligations with
respect to the Debenture Obligations at a time when such payment is prohibited
by Section 10.02 or 10.03 hereof, such payment shall be held by such Holder, in
trust for the benefit of, and shall be paid forthwith over and delivered, upon
written request to, the holders of Senior Debt as their interest may appear or
their Representative under the indenture or other agreement (if any) pursuant to
which Senior Debt may have been issued, as their interest may appear, for
application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
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SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Debenture Obligations to violate this Article 10, but failure to
give such notice shall not affect the subordination of the Debenture Obligations
to the Senior Debt as provided in this Article 10.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full in cash or cash equivalents and until
the Debentures are paid in full, Holders shall be subrogated (equally and
ratably with all other Indebtedness PARI PASSU with the Debentures) to the
rights of holders of Senior Debt to receive distributions applicable to Senior
Debt to the extent that distributions otherwise payable to the Holders have been
applied to the payment of Senior Debt. A distribution made under this Article 10
to holders of Senior Debt that otherwise would have been made to Holders is not,
as between the Company and Holders, a payment by the Company on the Senior Debt.
SECTION 10.08. RELATIVE RIGHTS.
This Article 10 defines the relative rights of the Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and premium, if any, and interest on the Debentures in
accordance with their terms;
(ii) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(iii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or an Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article 10 to pay principal of or
premium, if any, or interest on a Debenture on the due date, the failure is
nevertheless a Default or an Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Debentures shall be prejudiced or impaired by any
act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
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SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or 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 Debt 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 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Debentures, unless the Trustee shall have received at its Corporate Trust
Office at least two Business Days prior to the date of such payment written
notice that the payment of any Obligations with respect to the Debentures would
violate this Article 10, PROVIDED that this Section 10.11 shall not limit or
modify the rights of holders of Senior Debt to recover any such payments from
the Holders of the Debentures pursuant to Sections 10.02, 10.03 and/or 10.05.
Only the Company or a Representative may give such notice. Nothing in this
Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Debenture by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.01(v) and (vi) and Section 6.09 hereof at least 30 days before the expiration
of the time to file such claim, each Representative of Designated Senior Debt is
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Debentures.
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SECTION 10.13. AMENDMENTS.
Any amendment to the provisions of this Article 10 shall require the
consent of the Holders of at least 75% in aggregate amount of Debentures then
outstanding if such amendment would adversely affect the rights of the Holders
of Debentures.
SECTION 10.14. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Debt to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act, in good faith, by any such
holder.
(b) Without in any way limiting the generality of
paragraph (a) of this Section, the holders of Senior Debt may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Holders of the Debentures and
without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders to the holders of Senior Debt, do any one
or more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, any Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (3) release any Person
liable in any manner for the collection of Senior Debt; and (4) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 10.15. CERTAIN DEFINITIONS.
For purposes of this Section 10, the terms "DISTRIBUTION" and "PAYMENT"
include payments, distributions and other transfers of assets by or on behalf of
the Company (including redemptions, repurchases or other acquisitions of the
Debentures) from any source, of any kind or character, whether direct or
indirect, by set-off or otherwise, whether in cash, property or securities.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 11.02. 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
courier guaranteeing next day delivery, to the other's address:
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If to the Company:
Von Hoffmann Corporation
1000 Camera Avenue
St. Louis, Missouri 63126
Telecopy: (314) 966-0983
Attention: President
With a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telecopy: (212) 310-8007
Attention: Stephen M. Besen, Esq.
If to the Trustee:
Marine Midland Bank
140 Broadway
12th Floor
New York, New York 10005
Telecopy: (212) 658-6425
Attention: Corporate Trust Administration -- Von Hoffmann
Corporation
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 (other than those sent to the Trustee or to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
courier guaranteeing next day delivery.
Any notice or communication to the Trustee shall be deemed to have been
duly given to the Trustee when received at its Corporate Trust Office
(Attention: Corporate Trust Administration--Von Hoffmann Corporation).
Any notice or communication to a Holder shall be mailed by first class mail
to its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
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Except with respect to notices or communications to the Trustee, if a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF DEBENTURES WITH OTHER HOLDERS OF
DEBENTURES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Debentures. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.04. 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 in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 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 satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
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(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Debentures or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Debentures by
accepting a Debenture waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Debentures.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE DEBENTURES.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Debentures shall
bind its successors and assigns. All agreements of the Trustee in this Indenture
shall bind its successors and assigns.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or the Debentures shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
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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 of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURES
Dated as of October 16, 1998 Von Hoffmann Corporation
By:
Name:
Title:
Marine Midland Bank, as Trustee
By:
Name:
Title:
S-1
<Page>
EXHIBIT A
(Face of Debenture)
[Series B] 13.5% Subordinated Exchange Debenture due 2009
No. ______ $_______________
CUSIP NO.
VON HOFFMANN CORPORATION
promises to pay to ___________________, or registered assigns, the principal sum
of ________________ dollars (as such amount may be increased as provided herein)
on May 15, 2009.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
VON HOFFMANN CORPORATION
By:
Name:
Title:
By:
Name:
Title:
Dated:
This is one of the
Debentures referred to in the
within-mentioned Indenture:
,
as Trustee
By:
---------------------
Name:
Title:
(LEGENDS APPEAR ON REVERSE FACE OF DEBENTURE)
A-1
<Page>
(Back of Debenture)
[Series B] 13.5% Subordinated Exchange Debenture due 2009
[Unless and until it is exchanged in whole or in part for Debentures in
definitive form, this Debenture may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC") to
the issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.](1)
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE
- ----------
(1). This paragraph should be included only if the Debenture is issued in global
form.
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<Page>
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.](2)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Von Hoffmann Corporation, a Delaware corporation, or its
successor (the "COMPANY"), promises to pay interest on the principal amount of
this Debenture at the rate of 13.5% per annum. The Company will pay interest in
United States dollars semi-annually in arrears on May 15 and November 15 of each
year, commencing with the first such date following the issuance of the
Debentures, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "INTEREST PAYMENT DATE"); PROVIDED, HOWEVER, that prior to
the later to occur of (a) the first date on which interest would be permitted to
be paid in cash pursuant to the terms of the then-outstanding indebtedness of
the Company and its Subsidiaries and any other contractual provisions limiting
the ability of the Company and its Subsidiaries to declare or pay cash interest
or (b) May 22, 2002, interest shall not be paid in cash but shall accrete to,
and increase, the principal amount of each Debenture. Interest on the Debentures
shall accrue from the most recent date to which interest has been paid or
accreted to principal amount or, if no interest has been so paid or accreted,
from the date of issuance; PROVIDED that if there is no existing Default or
Event of Default in the payment of interest, and if this Debenture 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, except in the case of the original issuance of
Debentures, in which case interest shall accrue from the date of authentication.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1.0% per annum in excess of the then applicable interest rate on the Debentures
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. Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Debentures
(except defaulted interest) to the Persons who are registered Holders of
Debentures, or interest shall accrete to, and increase, the principal amount of
each Debenture held by a registered Holder, as the case may be, at the close of
business on the May 1 or November 1 next preceding the Interest Payment Date,
even if such Debentures are cancelled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.13 of the Indenture
with respect to defaulted interest. The Debentures shall be payable as to
principal, premium, if any, and interest at the office or
- ----------
(2). This paragraph should be removed if the Debentures are issued in exchange
for shares of Preferred Stock that are not Transfer Restricted Securities
or upon the exchange of Series B Debentures for Exchange Debentures in the
Exchange Offer or upon the registration of the Exchange Debentures pursuant
to the terms of the Registration Rights Agreement.
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<Page>
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 at their addresses set forth in the register
of Holders; PROVIDED that payment by wire transfer of immediately available
funds shall be required with respect to principal of and premium, if any, and
interest on all Global Debentures and on all other Debentures the Holders of
which shall have provided written wire transfer instructions to the Company or
the Paying Agent. Except as provided in the preceding paragraph, such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee under the Indenture
shall 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 act in any such capacity.
4. INDENTURE. The Company issued the Debentures under an Indenture dated
as of October 16, 1998 ("INDENTURE") between the Company and the Trustee. The
terms of the Debentures include those stated in the Indenture and those made a
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The Debentures are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. The Debentures are general unsecured
Obligations of the Company limited in aggregate principal amount to the
aggregate Liquidation Value of, plus accumulated and unpaid dividends on, the
Preferred Stock upon exchange of the Debentures for the Preferred Stock pursuant
to the Certificate of Designations, plus an amount representing the accretion of
interest on the Debentures as provided herein.
5. OPTIONAL REDEMPTION. Except as set forth in the next paragraph, the
Debentures shall not be redeemable at the Company's option prior to May 15,
2002. Thereafter, the Debentures shall be subject to redemption at the option of
the Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices set forth in the Indenture.
Notwithstanding the foregoing, prior to May 15, 2002, the Company may
redeem all, but not less than all, outstanding Debentures at a redemption price
of 113.5% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date, with the net proceeds of a Public Offering;
PROVIDED that such redemption shall occur within 90 days of the date of the
closing of such Public Offering.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Debentures.
7. REPURCHASE AT OPTION OF HOLDER. Upon the occurrence of a Change of
Control, each Holder of Debentures will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such
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<Page>
Holder's Debentures pursuant to a Change of Control Offer at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase. Holders of the Debentures that
are the subject of a Change of Control Offer may elect to have such Debentures
purchased by completing the form titled "Option of Holder to Elect Purchase"
appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Debentures are to be redeemed at its registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Debentures held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on the
Debentures or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in registered
form without coupons in initial denominations of $1,000 and integral multiples
of $1,000, except to the extent provided in the Certificate of Designations upon
issuance of Debentures in exchange for shares of Preferred Stock and except upon
accretion of interest as provided herein. The transfer of the Debentures may be
registered and the Debentures 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 Debenture or
portion of a Debenture selected for redemption, except for the unredeemed
portion of any Debenture being redeemed in part. Also, it need not exchange or
register the transfer of any Debentures for a period of 15 days before a
selection of Debentures to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. SUBORDINATION. Each Holder by accepting a Debenture agrees that the
payment of principal of and premium, if any, and interest on each Debenture is
subordinated in right of payment, to the extent and in the manner provided in
Article 10 of the Indenture, to the prior payment in full of all Senior Debt
(whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed), and the subordination is for the benefit of
the holders of Senior Debt.
11. PERSONS DEEMED OWNERS. The registered Holder of a Debenture may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following paragraphs
and the provisions of the Indenture, the Debentures may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Debentures then outstanding (including, without limitation,
consents obtained in connection with a purchase of or, tender offer or exchange
offer for Debentures), and any existing Default or Event of Default (other than
a Default or Event of Default in the payment of the principal of or premium, if
any, or interest on the Debentures, except a payment default resulting from an
acceleration that has been rescinded) or compliance
A-5
<Page>
with any provision of the Indenture or the Debentures may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Debentures (including consents obtained in connection with a tender offer or
exchange offer for Debentures).
Without the consent of any Holder of Debentures, the Company and the
Trustee may amend or supplement the Indenture or the Debentures to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Debentures in
addition to or in place of certificated Debentures, to provide for the
assumption of the Company's obligations to Holders of Debentures in the case of
a merger or consolidation, to make any change that would provide any additional
rights or benefits to the Holders of Debentures or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
In addition, any amendment to the provision of Article 10 of the Indenture
shall require the consent of the Holders of at least 75% in aggregate amount of
Debentures then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Debentures) if such amendment would
adversely affect the rights of the Holders of Debentures.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest with respect to the Debentures (whether
or not prohibited by Article 10 of the Indenture); (ii) default in payment when
due of the principal of or premium, if any, on the Debentures (whether or not
prohibited by Article 10 of the Indenture); (iii) failure by the Company or any
Subsidiary to comply with the provisions described in Sections 3.09, 4.07 or
4.13 of the Indenture; (iv) failure by the Company or any Subsidiary for 60 days
after notice from the Trustee or the Holders of at least 25% in principal amount
of the Debentures then outstanding to comply with its other agreements in the
Indenture or the Debentures; and (v) certain events of bankruptcy or insolvency
with respect to the Company, any of its Significant Subsidiaries or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Debentures
may declare all the Debentures to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" and the same shall become immediately due and
payable; PROVIDED, HOWEVER, that, so long as any Indebtedness permitted to be
incurred pursuant to the New Credit Agreement shall be outstanding, no such
acceleration shall be effective until the earlier of (i) acceleration of any
such Indebtedness under the New Credit Agreement or (ii) five Business Days
after the giving of written notice to the Company and the Representative of such
acceleration. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company, any Significant Subsidiary or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding Debentures
will become due and payable without
A-6
<Page>
further action or notice. Holders of the Debentures may not enforce the
Indenture or the Debentures except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Debentures may direct the Trustee in its exercise of any
trust or power. The Holders of a majority in aggregate principal amount of the
Debentures then outstanding, by notice to the Trustee, may on behalf of the
Holders of all of the Debentures waive any existing Default or Event of Default
and its consequences under the Indenture, except a continuing Default or Event
of Default in the payment of principal of or interest on the Debentures. The
Trustee may withhold from Holders of the Debentures notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in such Holders' interest. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default to deliver to
the Trustee a statement specifying such Default or Event of Default.
14. TRUSTEE DEALINGS WITH COMPANY. 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 the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Debentures or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Debentures by accepting a Debenture waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Debentures.
16. AUTHENTICATION. This Debenture shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
17. 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).
18. [ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Debentures under the
Indenture, Holders of Transferred Restricted Securities (as defined in the
Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement, dated as of June 13, 1997, between the Company
and the Initial Purchaser (the "REGISTRATION RIGHTS AGREEMENT").]
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
A-7
<Page>
numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Debentures or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Von Hoffmann Corporation
100 Camera Avenue
St. Louis, Missouri 63126
Telecopy: (314) 966-0983
Attention: President
A-8
<Page>
Assignment Form
To assign this Debenture, fill in the form below:
(I) or (we) assign and transfer this Debenture 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 Debenture 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 Debenture)
Signature Guarantee:
-----------------------------------------------
A-9
<Page>
Option of Holder to Elect Purchase
If a Change of Control has occurred and you want to elect to have this
Debenture purchased by the Company pursuant to Section 4.13 of the Indenture,
check this box
If a Change of Control has occurred and you want to elect to have only part
of the Debenture purchased by the Company pursuant to Section 4.13 of the
Indenture, state the amount you elect to have purchased: $___________
Date:
---------------------
Your Signature:
-------------------------------------------
(Sign exactly as your name appears on
the Debenture)
Tax Identification No.:
-------------------
Signature Guarantee:
-------------------------------------------
A-10
<Page>
SCHEDULE OF EXCHANGES OF DEBENTURE(3)
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL DEBENTURE FOR OTHER DEBENTURES
HAVE BEEN MADE:
<Table>
<Caption>
Principal Amount
of this Global
Amount of decrease in Amount of increase in Debenture Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee or
Date of Exchange this Global Debenture this Global Debenture decrease (or increase) Debenture Custodian
- ----------------------------------------------------------------------------------------------------------------------
</Table>
- ----------
(3). This should be included only if the Debenture is issued in global form.
A-11
<Page>
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Von Hoffmann Corporation
1000 Camera Avenue
St. Louis, Missouri 63126
Marine Midland Bank
140 Broadway
12th Floor
New York, New York 10005
Attn: Corporate Trust Administration--
Von Hoffmann Corporation
Re: 13.5% SUBORDINATED EXCHANGE DEBENTURES DUE 2009
OF VON HOFFMANN CORPORATION
Reference is hereby made to the Indenture, dated as of October 16, 1998_
(the "INDENTURE"), between Von Hoffmann Corporation, a Delaware corporation, as
issuer (the "COMPANY"), and Marine Midland Bank, 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
Debenture[s] or interest in such Debenture[s] specified in Annex A hereto, in
the principal amount of $___________ in such Debenture[s] 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
THE 144A GLOBAL DEBENTURE OR A DEFINITIVE DEBENTURE 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 Debenture is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Debenture 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 Debenture will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the 144A
Global Debenture and/or the Definitive Debenture and in the Indenture and the
Securities Act.
B-1
<Page>
2. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL DEBENTURE OR A DEFINITIVE DEBENTURE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Debentures and
Restricted Definitive Debentures 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 a
Subsidiary thereof;
or
(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 or Rule 144,
and the Transferor hereby further certifies that the Transfer complies
with the transfer restrictions applicable to beneficial interests in a
Restricted Global Debenture or Restricted Definitive Debentures 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) 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 Debenture will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Debenture and/or the
Definitive Debentures and in the Indenture and the Securities Act.
3. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL DEBENTURE OR OF AN UNRESTRICTED DEFINITIVE DEBENTURE.
(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
B-2
<Page>
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 not 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 Debenture will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Debentures, on Restricted Definitive Debentures and
in the Indenture.
(b) / / 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 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 not 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 Debenture will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Debentures or Restricted Definitive Debentures and
in the Indenture.
This certificate and the statements contained herein are made for your
benefit 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 following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Debenture (CUSIP ), or
(ii) / / IAI Global Debenture (CUSIP_______); or
(b) / / a Restricted Definitive Debenture.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Debenture (CUSIP______), or
(ii) / / IAI Global Debenture (CUSIP_______); or
(iii) / / Unrestricted Global Debenture (CUSIP_______); or
(b) / / a Restricted Definitive Debenture; or
(c) / / an Unrestricted Definitive Debenture,
in accordance with the terms of the Indenture.
B-4
<Page>
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Von Hoffmann Corporation
1000 Camera Avenue
St. Louis, Missouri 63126
Marine Midland Bank
140 Broadway
12th Floor
New York, New York 10005
Attn: Corporate Trust Administration--
Von Hoffmann Corporation
Re: 13.5% SUBORDINATED EXCHANGE DEBENTURES DUE 2009
OF VON HOFFMANN CORPORATION
Reference is hereby made to the Indenture, dated as of October 16, 1998
(the "INDENTURE"), between Von Hoffmann Corporation, a Delaware corporation, as
issuer (the "COMPANY"), and Marine Midland Bank, 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 Debenture[s]
or interest in such Debenture[s] specified herein, in the principal amount of
$____________ in such Debenture[s] or interests (the "EXCHANGE"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE DEBENTURES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL DEBENTURE FOR UNRESTRICTED DEFINITIVE DEBENTURES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL DEBENTURE
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL DEBENTURE TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL DEBENTURE. In connection with the Exchange of the Owner's
beneficial interest in a Restricted Global Debenture for a beneficial
interest in an Unrestricted Global Debenture 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 Debentures 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 not
required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest in an Unrestricted Global Debenture is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
C-1
<Page>
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL DEBENTURE TO UNRESTRICTED DEFINITIVE DEBENTURE. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Debenture for an Unrestricted Definitive Debenture,
the Owner hereby certifies (i) the Definitive Debenture 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 Debentures 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 not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Debenture 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
DEBENTURE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL DEBENTURE.
In connection with the Owner's Exchange of a Restricted Definitive
Debenture for a beneficial interest in an Unrestricted Global
Debenture, 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 Debentures 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 not 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
DEBENTURE TO UNRESTRICTED DEFINITIVE DEBENTURE. In connection with the
Owner's Exchange of a Restricted Definitive Debenture for an
Unrestricted Definitive Debenture, the Owner hereby certifies (i) the
Unrestricted Definitive Debenture 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 Debentures 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 not required in order
to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Debenture is being acquired in compliance with
any applicable blue sky securities laws of any state of the United
States.
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<Page>
2. EXCHANGE OF RESTRICTED DEFINITIVE DEBENTURES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL DEBENTURES FOR RESTRICTED DEFINITIVE DEBENTURES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL DEBENTURE TO RESTRICTED DEFINITIVE DEBENTURE. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Debenture for a Restricted Definitive Debenture with
an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Debenture 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 Debenture issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Definitive Debenture and in the Indenture
and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
DEBENTURE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL DEBENTURE. In
connection with the Exchange of the Owner's Restricted Definitive
Debenture for a beneficial interest in the [CHECK ONE] 0 144A Global
Debenture, 0 IAI Global Debenture 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 Debentures 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 consummation 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 Debenture and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Owner]
By:
Name:
Title:
Dated: ,
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<Page>
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Von Hoffmann Corporation
1000 Camera Avenue
St. Louis, Missouri 63126
Marine Midland Bank
140 Broadway
12th Floor
New York, New York 10005
Attn: Corporate Trust Administration--
Von Hoffmann Corporation
Re: 13.5% SUBORDINATED EXCHANGE DEBENTURES DUE 2009
OF VON HOFFMANN CORPORATION
Reference is hereby made to the Indenture, dated as of October 16, 1998
(the "INDENTURE"), between Von Hoffmann Corporation, a Delaware corporation, as
issuer (the "COMPANY"), and Marine Midland Bank, 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 Debenture, or
(b) / / a Definitive Debenture,
we confirm that:
1. We understand that any subsequent transfer of the Debentures 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 Debentures 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").
2. We understand that the offer and sale of the Debentures have not been
registered under the Securities Act, and that the Debentures 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 Debentures or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (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
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<Page>
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and 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) pursuant to the
provisions of Rule 144 under the Securities Act or (E) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing the Definitive Debenture or beneficial interest in a
Global Debenture from us in a transaction meeting the requirements of clauses
(A) through (D) 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 Debentures 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 Debentures purchased
by us will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Debentures or beneficial interest therein
acquired by us must be effected through one of the Placement Agents.
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 Debentures, 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 Debentures or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You 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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