Exhibit 4.1
American Lawyer Media, Inc.,
as Issuer
ALM, LLC, Counsel Connect, LLC,
ALM IP, LLC, and
ALM Counsel Connect Inc.
as Guarantors
$175,000,000
9 3/4% Senior Notes
due December 15, 2007
-------------
INDENTURE
Dated as of December 22, 1997
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The Bank of New York,
as Trustee
TABLE OF CONTENTS
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Article I
DEFINITIONS AND INCORPORATION
BY REFERENCE.............................................. 1
SECTION 1.01 DEFINITIONS.................................................................... 1
SECTION 1.02 OTHER DEFINITIONS.............................................................. 23
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.............................. 25
SECTION 1.04 RULES OF CONSTRUCTION.......................................................... 25
Article II
THE NOTES................................................. 26
SECTION 2.01 FORM AND DATING................................................................ 26
SECTION 2.02 EXECUTION AND AUTHENTICATION................................................... 29
SECTION 2.03 REGISTRAR AND PAYING AGENT..................................................... 30
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST............................................ 30
Section 2.05 Holder Lists................................................................... 31
SECTION 2.06 PAYMENT........................................................................ 31
SECTION 2.07 TRANSFER AND EXCHANGE.......................................................... 31
SECTION 2.08 REPLACEMENT NOTES.............................................................. 38
SECTION 2.09 OUTSTANDING NOTES.............................................................. 38
SECTION 2.10 TREASURY NOTES................................................................. 39
SECTION 2.11 TEMPORARY NOTES................................................................ 39
SECTION 2.12 CANCELLATION................................................................... 39
SECTION 2.13 DEFAULTED INTEREST............................................................. 40
SECTION 2.14 CUSIP NUMBERS.................................................................. 40
Article III
REDEMPTION AND PREPAYMENT....................................... 40
SECTION 3.01 NOTICES TO TRUSTEE............................................................. 40
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED.............................................. 41
SECTION 3.03 Notice of Redemption........................................................... 41
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION................................................. 42
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.................................................... 42
SECTION 3.06 NOTES REDEEMED IN PART......................................................... 43
SECTION 3.07 OPTIONAL REDEMPTION............................................................ 43
SECTION 3.08 NO MANDATORY REDEMPTION........................................................ 44
Article IV
COVENANTS................................................. 44
SECTION 4.01 PAYMENT OF NOTES............................................................... 44
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY................................................ 45
SECTION 4.03 REPORTS........................................................................ 45
SECTION 4.04 COMPLIANCE CERTIFICATE......................................................... 46
SECTION 4.05 COMPLIANCE WITH LAWS, TAXES.................................................... 47
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SECTION 4.06 STAY, EXTENSION AND USURY LAWS................................................. 48
SECTION 4.07 CHANGE OF CONTROL.............................................................. 48
SECTION 4.08 LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.............................. 50
SECTION 4.09 LIMITATION ON RESTRICTED PAYMENTS.............................................. 55
SECTION 4.10 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS ........................... 58
SECTION 4.11 LIMITATION ON LIENS SECURING INDEBTEDNESS ..................................... 59
SECTION 4.12 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.............................................. 60
SECTION 4.13 LIMITATION ON TRANSACTIONS WITH AFFILIATES..................................... 61
SECTION 4.14 FUTURE GUARANTORS.............................................................. 61
SECTION 4.15 LIMITATION ON LINES OF BUSINESS................................................ 62
SECTION 4.16 CORPORATE EXISTENCE............................................................ 62
SECTION 4.17 LIMITATIONS ON STATUS AS INVESTMENT COMPANY.................................... 62
SECTION 4.18 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES........................ 62
SECTION 4.19 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY........................ 63
Article V
SUCCESSORS............................................... 63
SECTION 5.01 MERGER, SALE OR CONSOLIDATION ................................................. 63
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.............................................. 64
Article VI
DEFAULTS AND REMEDIES.......................................... 65
SECTION 6.01 EVENTS OF DEFAULT.............................................................. 65
SECTION 6.02 ACCELERATION................................................................... 66
SECTION 6.03 OTHER REMEDIES................................................................. 66
SECTION 6.04 WAIVER OF PAST DEFAULTS ....................................................... 67
SECTION 6.05 CONTROL BY MAJORITY............................................................ 67
SECTION 6.06 LIMITATION ON SUITS ........................................................... 67
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT ................................. 68
SECTION 6.08 COLLECTION SUIT BY TRUSTEE..................................................... 68
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM............................................... 69
SECTION 6.10 PRIORITIES..................................................................... 69
SECTION 6.11 UNDERTAKING FOR COSTS.......................................................... 70
Article VII
TRUSTEE................................................. 70
SECTION 7.01 DUTIES OF TRUSTEE.............................................................. 70
SECTION 7.02 RIGHTS OF TRUSTEE ............................................................. 71
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE .................................................. 73
SECTION 7.04 TRUSTEE'S DISCLAIMER .......................................................... 73
SECTION 7.05 NOTICE OF DEFAULTS............................................................. 73
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES..................................... 73
SECTION 7.07 COMPENSATION AND INDEMNITY..................................................... 74
SECTION 7.08 REPLACEMENT OF TRUSTEE ........................................................ 75
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SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC............................................... 76
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.................................................. 76
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............................. 77
Article VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE.............................. 77
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE....................... 77
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE................................................. 77
SECTION 8.03 COVENANT DEFEASANCE............................................................ 78
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE..................................... 78
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.......................................... 80
SECTION 8.06 REPAYMENT TO COMPANY........................................................... 81
SECTION 8.07 REINSTATEMENT.................................................................. 81
Article IX
AMENDMENT, SUPPLEMENT AND WAIVER.................................... 82
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES............................................ 82
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES............................................... 83
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT............................................ 85
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.............................................. 85
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES............................................... 85
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC................................................ 85
Article X
SUBSIDIARY GUARANTEES......................................... 86
SECTION 10.01 SUBSIDIARY GUARANTEES.......................................................... 86
SECTION 10.02 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES................................ 87
SECTION 10.03 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS............................. 88
SECTION 10.04 RELEASE OF GUARANTORS.......................................................... 89
SECTION 10.05 LIMITATION OF GUARANTOR'S LIABILITY............................................ 90
SECTION 10.06 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE
GUARANTOR...................................................................... 90
SECTION 10.07 ADDITIONAL GUARANTORS.......................................................... 91
Article XI
MISCELLANEOUS.............................................. 92
SECTION 11.01 TRUST INDENTURE ACT CONTROLS................................................... 92
SECTION 11.02 NOTICES........................................................................ 92
SECTION 11.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES ......................................................................... 93
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............................. 93
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.................................. 94
SECTION 11.06 RULES BY TRUSTEE AND AGENTS ................................................... 94
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SECTION 11.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS............................................................... 94
SECTION 11.08 GOVERNING LAW ................................................................. 94
SECTION 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS ................................. 95
SECTION 11.10 SUCCESSORS .................................................................... 95
SECTION 11.11 SEVERABILITY .................................................................. 95
SECTION 11.12 COUNTERPART ORIGINALS.......................................................... 95
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC............................................... 95
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EXHIBIT A SERIES A NOTE A - 1
EXHIBIT B SERIES B NOTE B - 1
EXHIBIT C FORM OF CERTIFICATE OF TRANSFER FROM U.S. GLOBAL NOTE OR C - 1
IAI GLOBAL NOTE TO REGULATION S TEMPORARY GLOBAL NOTE
EXHIBIT D FORM OF CERTIFICATE OF TRANSFER FROM REGULATION S TEMPORARY D - 1
GLOBAL NOTE TO U.S. GLOBAL NOTE OR IAI GLOBAL NOTE
EXHIBIT E FORM OF CERTIFICATE OF TRANSFER FROM GLOBAL NOTE OR E - 1
TRANSFER RESTRICTED SECURITY TO TRANSFER RESTRICTED
SECURITY
EXHIBIT F FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE F - 1
EXHIBIT G FORM OF CERTIFICATE OF TRANSFERS OF REGULATION S TEMPORARY G - 1
GLOBAL NOTE FOR REGULATION S PERMANENT GLOBAL NOTE
EXHIBIT H FORM OF CERTIFICATE OF TRANSFERS OF REGULATION S TEMPORARY H - 1
GLOBAL NOTE FOR REGULATION S PERMANENT GLOBAL NOTE
EXHIBIT I FORM OF CERTIFICATE OF TRANSFERS OF REGULATION S PERMANENT I - 1
GLOBAL NOTE FOR TRANSFER RESTRICTED SECURITIES
EXHIBIT J RESTRICTED SUBSIDIARY GUARANTEE J - 1
EXHIBIT K FORM OF SUPPLEMENTAL INDENTURE K - 1
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INDENTURE dated as of December 22, 1997, among American Lawyer
Media, Inc., a Delaware corporation (the "Company"), ALM, LLC, Counsel Connect
LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the "Guarantors"), and The Bank
of New York, a New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the 9 3/4% Series A Senior
Notes due 2007 (the " Series A Notes") and the 9 3/4% Series B Senior Notes due
2007 (the "Series B Notes") together with the Series A Notes (the "Notes"):
Article
I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS
"Acquired Indebtedness" means Indebtedness of any Person
existing at the time such Person becomes a Restricted Subsidiary of the Company,
including by designation, or is merged or consolidated into or with the Company
or one of its Restricted Subsidiaries or is assumed by the Company or a
Restricted Subsidiary in connection with the acquisition of assets from such
Person.
"Acquisition" means the purchase or other acquisition of any
Person or all or substantially all the assets of any Person by any other Person
or any division or line of business of such Person, whether by purchase, merger,
consolidation, or other transfer, and whether or not for consideration.
"Acquisition Transactions" means the Acquisition of National
Law Publishing Company, Inc. by the Company, including the related financing
transactions.
"Adjusted Consolidated Net Income" means, with respect to any
Person, for any period, the Consolidated Net Income of such Person for such
period plus any non-cash charges for such period relating to the amortization of
goodwill or other intangibles or any other purchase accounting adjustment
resulting from any acquisition.
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For purposes of this definition, the term
"control" means the power to direct the management and policies of a Person,
directly or through one or more intermediaries, whether through the ownership of
voting securities, by contract, or otherwise, provided,
that with respect to ownership interest in the Company and its Subsidiaries, a
Beneficial Owner of 10% or more of the total voting power normally entitled to
vote in the election of directors, managers or trustees, as applicable, shall
for such purposes be deemed to constitute control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"ALM" means American Lawyer Media, Inc. and its subsidiaries
(and its predecessor, ALM Holdings, LLC) since the ALM Acquisition.
"ALM Acquisition" means the acquisition by ALM of
substantially all of the assets and certain liabilities related to American
Lawyer Media L.P. on August 27, 1997.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Bankruptcy Law" means title 11, U.S. Code, as amended, or any
similar federal or state law for the relief of debtors.
"Beneficial Owner" or "beneficial owner" for purposes of the
definitions of "Change of Control" and "Affiliate" has the meaning attributed to
it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares or other Equity Interests that any such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time.
"Board of Directors" means, with respect to any Person, the
board of directors (or, in the case of a partnership, limited liability company
or similar entity, the management committee or other body exercising
substantially similar functions) of such Person or any committee of the Board of
Directors of such Person authorized, with respect to any particular matter, to
exercise the power of the board of directors or similar body of such Person.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
2
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York, are authorized or obligated by law or executive order to close.
"Capital Stock" means (a) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of common stock and preferred stock of such Person and (b) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (a) marketable direct obligations
issued or unconditionally guaranteed by the U.S. Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (b)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having at least the second highest
rating obtainable from either Standard & Poor's Rating Group ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (c) commercial paper maturing no more than
one year from the date of creation thereof and, at the time of acquisition,
having at least the second highest rating obtainable from either S&P or Moody's;
(d) certificates of deposit or bankers' acceptances maturing within one year
from the date of acquisition thereof issued by any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having at the date of acquisition combined capital and
surplus of not less than $500.0 million; (e) shares of any money market mutual
fund that (i) has its assets invested continuously in the types of investments
referred to in clauses (a) and (b) above, (ii) has net assets of not less than
$500.0 million and (iii) has at least the second highest rating obtainable from
either S&P or Moody's; and (f) repurchase agreements with respect to, and which
are fully secured by a perfected security interest in, obligations of a type
described in clause (a) or clause (b) above and are with any commercial bank
described in clause (d) above.
"Change of Control" means (a) any merger or consolidation of
the Company with or into any Person or any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the assets of the
Company, on a consolidated basis,
3
in one transaction or a series of related transactions, if, immediately after
giving effect to such transaction(s), any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable), other than a Permitted Transferee, is or becomes the
"beneficial owner" (as defined in Rules 13(d) and 14(d) of the Exchange Act),
directly or indirectly, of more than 50% of the total voting power in the
aggregate normally entitled to vote in the election of members of the board of
directors, managers, or trustees, as applicable, of the transferee(s) or
surviving entity or entities, (b) any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable), other than a Permitted Transferee, is or becomes the
"beneficial owner," directly or indirectly, of more than 50% of the total voting
power in the aggregate of all classes of Equity Interests of the Company then
outstanding normally entitled to vote in elections of members of the board of
directors, managers, or trustees, as applicable, or (c) during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Board of Directors of the Company (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the Holders of Equity Interests of the Company was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the Adjusted Consolidated Net Income of such Person for such period
adjusted to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (a) consolidated
income tax expense, (b) consolidated depreciation and amortization expense,
provided that consolidated depreciation and amortization of a Subsidiary that is
a less than wholly owned subsidiary shall only be added to the extent of the
equity interest of such Person in such Subsidiary, (c) Consolidated Fixed
Charges, and (d) all other expenses reducing Consolidated Net Income for such
period that do not represent cash disbursements for such period (excluding any
expense to the extent it represents an accrual of or reserve for cash
disbursements for any subsequent period prior to the Stated Maturity of the
Notes) less, to the extent included in the calculation of Consolidated Net
Income, the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period, provided that with respect to the Company each of the
foregoing items shall be determined on a consolidated basis with respect to the
Company and its Restricted Subsidiaries only.
"Consolidated Fixed Charges" with respect to any Person means,
for any period, the aggregate amount (without duplication and determined in each
case in
4
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to Capitalized Lease Obligations) of such Person
and its Consolidated Subsidiaries during such period, including (i) original
issue discount and non-cash interest payments or accruals on any Indebtedness,
(ii) the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap or
Hedging Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable (or guaranteed) by such person or
any of its Consolidated Subsidiaries in respect of preferred Equity Interests
(other than by Subsidiaries of such Person to such Person or such Person's
wholly owned subsidiaries). For purposes of this definition, (x) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined in good faith by the Company to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP and (y)
interest expense attributable to any Indebtedness represented by the guarantee
by such Person or a Subsidiary of such Person of an obligation of another person
shall be deemed to be the interest expense attributable to the Indebtedness
guaranteed.
"Consolidated Net Income" means, with respect to any Person,
for any period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains (but not losses)
which are either extraordinary (as determined in accordance with GAAP) or are
nonrecurring (including any gain from the sale or other disposition of assets
outside the ordinary course of business or from the issuance or sale of any
capital stock), (b) the net income, if positive, of any Person, other than a
Restricted Subsidiary, in which such Person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such Person or a Restricted
Subsidiary of such Person during such period, but in any case not in excess of
such Person's pro rata share of such Person's net income for such period, (c)
the net income or loss of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition, and (d) the
net income, if positive, of any of such Person's Consolidated Subsidiaries to
the extent that the declaration or payment of dividends or similar distributions
is not at the time permitted by operation of the terms of its charter or bylaws
or any other agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary.
"Consolidated Net Worth" means, with respect to any Person at
any date means the aggregate consolidated stockholders' equity of such Person
(plus amounts of
5
equity attributable to preferred stock) and its Consolidated Subsidiaries, as
would be shown on the consolidated balance sheet of such Person prepared in
accordance with GAAP, adjusted to exclude (to the extent included in calculating
such equity), (a) the amount of any such stockholders' equity attributable to
Disqualified Equity Interests or treasury stock of such Person and its
Consolidated Subsidiaries, (b) all upward revaluations and other write-ups in
the book value of any asset of such Person or a Consolidated Subsidiary of such
Person subsequent to the Issue Date, and (c) all investments in subsidiaries
that are not Consolidated Subsidiaries and in Persons that are not Subsidiaries.
"Consolidated Subsidiary" means, for any Person, each
subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which are consolidated for financial
statement reporting purposes with the financial statements of such Person in
accordance with GAAP.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 hereof or such other address
as to which the Trustee may give written notice to the Company.
"Credit Agreement" means an agreement by and among the Company
(which term, for purposes of this definition only shall also include any of the
Company's Affiliates that shall be a party thereto), and the lenders, arrangers
and syndication agents from time to time party thereto providing for a senior
revolving credit facility or similar facility, as such Credit Agreement and/or
related documents may be amended, restated, supplemented, renewed, replaced,
refinanced, restructured or otherwise modified from time to time whether or not
with the same agent, trustee, representative lenders or holders, provided, that
such Credit Agreement may be secured. Without limiting the generality of the
foregoing, the term "Credit Agreement" shall include any amendment, amendment
and restatement, renewal, extension, restructuring, supplement or modification
to any such Credit Agreement and all refundings, refinancings and replacements
thereof, including any agreement (a) extending the maturity of any Indebtedness
incurred thereunder or contemplated thereby, (b) adding or deleting borrowers or
guarantors thereunder, so long as borrowers and guarantors include one or more
of the Company and its Subsidiaries and their respective successors and assigns,
(c) increasing the amount of Indebtedness incurred thereunder or available to be
borrowed thereunder or (d) otherwise altering the terms and conditions thereof
in a manner not prohibited by the terms of this Indenture.
"Custodian" means any receiver, trustee, assignee liquidator
or similar official under any Bankruptcy Law.
"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.
6
"Depositary" means, with respect to the Notes 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 Notes, until a successor shall have
been appointed and become such Depository pursuant to the applicable provision
of this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"Determined Fair Market Value" shall mean Fair Market Value as
determined by the Board of Directors, except that with respect to the evaluation
of any Person, business, property, asset or transaction, or series or group
thereof, involving more than $5.0 million, Determined Fair Market Value shall be
determined by a Third Party Evaluator.
"Direct Participants" means participating organizations in
DTC, including securities brokers and dealers (including the Initial
Purchasers), banks, trust companies, clearing corporations and certain other
organizations, including Euroclear and CEDEL.
"Discount Notes" means the 12.25% Senior Discount Notes due
2008 issued by Holdings.
"Disqualified Equity Interests" means (a) except as set forth
in (b), with respect to any Person, Equity Interests of such Person that, by
their terms, or by the terms of any agreement or instrument pursuant to which
such Equity Interests are issued, or by the terms of any security into which
such Equity Interests are convertible, exercisable or exchangeable, are, or upon
the happening of an event or the passage of time or both would be, required to
be redeemed or repurchased (including at the option of the Holder thereof) by
such Person or any of its Restricted Subsidiaries, in whole or in part, on or
prior to the Stated Maturity of the Notes and (b) with respect to any Restricted
Subsidiary of such Person (including with respect to any Restricted Subsidiary
of the Company), any Equity Interests other than any common equity with no
preference, privileges, or redemption or repayment provisions.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any capital stock issued by, or
partnership or membership interests in, such Person.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
7
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Series B Notes
for Series A Notes.
"Exempted Affiliate Transaction" means (a) transactions with
any officer, director, partner or managing member in his or her capacity as
such, entered into in the ordinary course of business, including without
limitation customary employee, director or manager compensation or
indemnification arrangements approved by the Board of Directors of the Company,
(b) Permitted Investments and transactions otherwise permitted under Section
4.09 hereof, and (c) transactions solely between the Company and any of its
Restricted Subsidiaries or solely among Restricted Subsidiaries of the Company.
"Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries (other than Indebtedness, if any, under the Credit
Agreement) in existence on the date of this Indenture until such amounts are
repaid.
"Fair Market Value" means, with respect to any Person,
business, asset, property or transaction, the price that could be negotiated in
an arm's length, free market transaction, between a willing seller and a willing
and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction.
"40-day Restricted Period" means the 40-day period commencing
on the day after the later of the Offering and the original Issue Date, as
defined in Regulation S of the Securities Act.
"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 in the United States, which are in effect on the
date of this Indenture. All ratios and computations based on GAAP contained in
this Indenture shall be computed in conformity with GAAP applied on a consistent
basis, except that calculations made for purposes of determining compliance with
the terms of the covenants and with other provisions of the Indenture shall be
made without giving effect to depreciation, amortization or other expenses
recorded as a result of the application of purchase accounting in accordance
with Accounting Principles Board Option Nos. 16 and 17.
"Global Notes Legend" means the legend set forth in Exhibits A
and B to be placed on all Notes issued under this Indenture except as otherwise
permitted by the provisions of Section 2.07 hereof.
8
"Guarantee" means a guarantee or other credit support (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.
"Guarantors" means each of the Company's present and future
Restricted Subsidiaries, which have guaranteed the Notes in accordance with this
Indenture.
"Holder" means a Person in whose name a Note is registered on
the Registrar's books.
"Holdings" means American Lawyer Media Holdings, Inc.
"IAI" means an institutional "accredited investor" as defined
in Rule 501(a)(1), (2) (3) or (7) of the Securities Act.
"Indebtedness" of any Person means, without duplication, (a)
all liabilities and obligations, contingent or otherwise, of such Person, to the
extent such liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such person in accordance with GAAP, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except those incurred in the ordinary course of its business that would
constitute ordinarily a trade payable to trade creditors; (b) all liabilities
and obligations, contingent or otherwise, of such Person (i) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (ii)
relating to any Capitalized Lease Obligation, or (iii) evidenced by a letter of
credit or a reimbursement obligation of such Person with respect to any letter
of credit other than trade letters of credit, to the extent not issued pursuant
to any Credit Agreement or any Refinancing Indebtedness in respect thereof, but
only to the extent such letters of credit are drawn upon and not paid or
reimbursed by such Person within 30 days of incurrence; (c) all net obligations
of such Person under Interest Swap or Hedging Obligations; (d) all liabilities
and obligations of others of the kind described in the preceding clause (a), (b)
or (c) that such Person has guaranteed or that is otherwise its legal liability
or which are secured by any assets or property of such person and all
obligations to purchase, redeem or acquire any Equity Interests; (e) any and all
refinancings and refundings (whether direct or indirect) of, or amendments,
modifications or supplements to (in any such case, which increases the principal
amount of Indebtedness thereunder or the assets covered by any associated Lien),
any liability of the kind described in any of the preceding clauses (a), (b),
(c) or (d), or this clause (e), whether or not between or among the same
parties; and (f) all Disqualified Equity Interests of such
9
Person (measured at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends) but only to the extent that
such obligations arise on or prior to the Stated Maturity of the Notes. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified Equity
Interests which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Equity Interests as if such
Disqualified Equity Interests were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified Equity
Interests, such Fair Market Value to be determined in good faith by the Board of
Directors (or managing general partner) of the issuer of such Disqualified
Equity Interests.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Indirect Participants" means, in relation to DTC, entities
other than Direct Participants that have access to DTC's book entry system by
clearing through or maintaining a direct or indirect, custodial relationship
with a Direct Participant.
"Initial Purchasers" means Xxxxxxxxxxx Xxxxxxx Securities,
Inc., BancAmerica Xxxxxxxxx Xxxxxxxx and BancBoston Securities Inc. as the
initial purchasers under the purchase agreement between the Initial Purchasers,
the Company and certain Guarantors, dated December 17, 1997.
"Interest Payment Date" means the date upon which interest
payments on the Notes shall be made, as set forth in Exhibit A and Exhibit B
hereto.
"Interest Swap or Hedging Obligation" means any obligation of
any Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership, membership
or other ownership interests or other securities, including any options or
warrants, of such other Person or any agreement
10
to make any such acquisition; (b) the making by such Person of any deposit with,
or advance, loan or other extension of credit to, such other Person (including
the purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person) or any commitment to make any such advance, loan or extension (but
excluding accounts receivable, trade credit, endorsements for collection or
deposits arising in the ordinary course of business); (c) other than guarantees
of Indebtedness to the extent permitted by Section 4.10, the entering into by
such Person of any guarantee of, or other credit support or contingent
obligation with respect to, Indebtedness or other liability of such other
Person; (d) the making of any capital contribution by such person to such other
Person; and (e) the designation by the Board of Directors of the Company of any
Person (including without limitation a Restricted Subsidiary) to be an
Unrestricted Subsidiary. The Company shall be deemed to make an Investment in an
amount equal to the Determined Fair Market Value of the net assets of any
Restricted Subsidiary (or, if neither the Company nor any of its Restricted
Subsidiaries has theretofore made an Investment in such Subsidiary, in an amount
equal to the Investments being made), at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary, and any property
transferred to an Unrestricted Subsidiary from the Company or a Restricted
Subsidiary of the Company shall be deemed an Investment valued at its Determined
Fair Market Value at the time of such transfer.
"Issue Date" means the date of first issuance of the Notes
under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Make-Whole Premium" means, with respect to a Note at any
time, the greater of (x) 9.75% of the principal amount of such Note and (y) the
excess of (i) the present value at such time, discounted from the first date on
which such Note could be redeemed at the option of the Company pursuant to the
provisions of paragraph (a) of
11
Section 3.07 of this Indenture, of the principal amount at maturity of such Note
plus the amount of premium that would be due on such Note were it to be redeemed
on the first date on which such Note could be redeemed at the option of the
Company pursuant to the provisions of paragraph (a) of Section 3.07 of this
Indenture, computed using a discount rate equal to the Treasury Rate plus 50
basis points, over (ii) the then outstanding principal amount of such Note.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified Equity
Interests and by the Company and its Restricted Subsidiaries in respect of an
Asset Sale plus, in the case of an issuance of Qualified Equity Interests upon
any exercise, exchange or conversion of securities (including options, warrants,
rights and convertible or exchangeable debt) of the Company that were issued for
cash on or after the Issue Date, the amount of cash originally received by the
Company upon the issuance of such securities (including options, warrants,
rights and convertible or exchangeable debt) less, in each case, the sum of all
payments, fees, commissions and (in the case of Asset Sales, reasonable and
customary) expenses (including, without limitation, the fees and expenses of
legal counsel and investment banking fees and expenses) incurred in connection
with such Asset Sale or sale of Qualified Equity Interests, and, in the case of
an Asset Sale only, less (a) the amount (estimated reasonably and in good faith
by the Company) of income, franchise, sales and other applicable taxes required
to be paid by the Company or any of its Subsidiaries in connection with such
Asset Sale and (b) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with such Asset Sale and retained by
the Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale.
"Non-Recourse Debt" means Indebtedness (a) as to which neither
the Company nor any of its Restricted Subsidiaries (i) provide credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (ii) is directly or indirectly liable (as a guarantor
or otherwise) or (iii) constitutes the lender, (b) no default with respect to
which (including any rights that the Holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any Holder of any other Indebtedness (other than
the Notes) of the Company or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (c) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
12
"Non-U.S. Person" means a Person other than a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect
to the Global Notes, or any successor entity thereto.
"Obligations" means any principal, premium, interest,
penalties, fees, indemnifications, reimbursement obligations, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any 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 at least one Officer of the Company.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Parent" means Holdings or its successor.
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company and its Restricted Subsidiaries, as
applicable, evidenced by the Notes and the Guarantees up to the amounts
specified herein as of the date thereof;
(b) Refinancing Indebtedness incurred by the Company or a Restricted
Subsidiary, as applicable, with respect to any Indebtedness described in clause
(a), (c), (f), (g) or (h) of this definition or incurred under the first
paragraph of Section 4.10 hereof or which is Existing Indebtedness (after giving
effect to the Transactions), provided that (i) any such Refinancing Indebtedness
that is secured refinances only other Indebtedness that is similarly secured and
(ii) such secured Refinancing Indebtedness, to the extent secured, is secured
only by the assets that secured the Indebtedness so refinanced;
13
(c) Indebtedness of the Company and its Restricted Subsidiaries solely
in respect of bankers acceptances, letters of credit and performance or surety
bonds (to the extent that such incurrence does not result in the incurrence of
any obligation to repay any obligation relating to borrowed money of others),
all in the ordinary course of business in accordance with customary industry
practices, in amounts and for the purposes customary in the Company's industry;
provided, that the aggregate principal amount of such Indebtedness at any one
time outstanding (including any Refinancing Indebtedness in respect thereof)
shall not exceed $2.5 million;
(d) Indebtedness of the Company to any Restricted Subsidiary, and
Indebtedness of any Restricted Subsidiary to any other Restricted Subsidiary or
to the Company; provided, that (i) in the case of Indebtedness of the Company,
the Company's Obligations under such Indebtedness shall be unsecured and,
whether or not expressly so stated in writing, shall be deemed to be
subordinated in all respects to the Company's Obligations under the Notes and
this Indenture and (ii) the date of any event that causes such Restricted
Subsidiary no longer to be a Restricted Subsidiary shall be considered the
Incurrence Date of the Obligations in respect of such Indebtedness;
(e) Guarantees by the Company or any Restricted Subsidiary of
Indebtedness of the Company or another Restricted Subsidiary, and Guarantees by
the Company of any Indebtedness of any Restricted Subsidiary, in each case that
is otherwise permitted to be incurred pursuant to this Indenture;
(f) Purchase Money Indebtedness incurred by the Company and its
Restricted Subsidiaries on or after the Issue Date, provided, that (i) the
aggregate principal amount of such Indebtedness incurred on or after the Issue
Date and outstanding at any time pursuant to this paragraph (f) (including any
Refinancing Indebtedness with respect to such Indebtedness) shall not exceed
$2.0 million, and (ii) in each case, such Indebtedness shall not constitute more
than 100% of the cost (determined in accordance with GAAP) to the Company or
such Restricted Subsidiary, as applicable, of the property so purchased or
leased;
(g) provided that no Event of Default shall have occurred and be
continuing, unsecured Indebtedness of the Company and its Restricted
Subsidiaries (in addition to Indebtedness permitted by any other clause of this
definition) in an aggregate principal amount outstanding at any time (including
any Refinancing Indebtedness in respect thereof) of up to $5.0 million (which,
if such Indebtedness is incurred under a Credit Agreement, may be secured
Indebtedness);
(h) Indebtedness of the Company and its Restricted Subsidiaries
pursuant to a Credit Agreement up to an aggregate principal amount outstanding
at any time (including
14
any Refinancing Indebtedness with respect to such Indebtedness) of $40.0
million, minus the amount of any such Indebtedness (i) retired with the Net Cash
Proceeds from any Asset Sale (as defined in Section 4.08 hereof) and applied to
permanently reduce the outstanding amounts or the commitments with respect to
such Indebtedness pursuant to clause (a)(ii)(B) of the first paragraph of
Section 4.08 hereof, or (ii) assumed by a transferee in an Asset Sale;
(i) Indebtedness arising from agreements of the Company or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary; provided, however, that the
maximum assumable liability in respect of all such Indebtedness shall at no time
exceed 25% of the gross proceeds (with proceeds other than cash or Cash
Equivalents being valued at the Determined Fair Market Value thereof by the
Board of Directors of the Company at the time received and without giving effect
to any subsequent changes in value) actually received by the Company and its
Restricted Subsidiaries in connection with such disposition; and
(j) Interest Swap or Hedging Obligations of the Company covering
Indebtedness of the Company or any of its Restricted Subsidiaries otherwise
permitted under this Indenture and Interest Swap or Hedging Obligations of any
Restricted Subsidiary of the Company covering Indebtedness of such Restricted
Subsidiary otherwise permitted under this Indenture; provided, however, that
such Interest Swap or Hedging Obligations are entered into to protect the
Company and its Restricted Subsidiaries from fluctuations in interest rates on
Indebtedness incurred in accordance with the Indenture to the extent the
notional principal amount of such Interest Swap or Hedging Obligations does not
exceed the principal amount of the Indebtedness to which such Interest Swap or
Hedging Obligations relate.
"Permitted Investment" means Investments in (a) any of the
Notes; (b) Cash Equivalents; (c) intercompany indebtedness to the extent
permitted under clause (d) of the definition of "Permitted Indebtedness"; (d)
any Investments in the Company or any Restricted Subsidiary by the Company or
another Restricted Subsidiary, as applicable; (e) Investments by the Company or
any Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary of the Company or
(ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company, (f) Investments in
existence on the Issue Date, (g) loans and advances to employees of the Company
or any of its Subsidiaries in the ordinary course of business and on terms
consistent with the Company's practices in effect prior to the Issue Date,
including travel, moving and other like advances, (h) stock, obligations or
securities received in the ordinary course of business in settlement of debts
15
owing to the Company or a Subsidiary thereof as a result of foreclosure,
perfection, enforcement of any Lien or in a bankruptcy proceeding; (i)
Investments in Persons to the extent any such Investment represents the non-cash
consideration otherwise permitted under the terms of the Indenture to be
received by the Company or its Restricted Subsidiaries in connection with an
Asset Sale; (j) Interest Swap or Hedging Obligations to the extent permitted
under the definition of "Permitted Indebtedness" in this Indenture; (k) any
issuance of Equity Interests of the Company or any Restricted Subsidiary in
exchange for Equity Interests, property or assets of another Person; provided
that the transactions underlying the issuance or exchange of such Equity
Interests are otherwise permitted by this Indenture, (l) Investments consisting
of the licensing or contribution of intellectual property pursuant to joint
marketing arrangements with other Persons; (m) Investments consisting of
purchases and acquisitions of inventory, supplies, materials and equipment or
licenses or leases of intellectual property, in any case, in the ordinary course
of business, and (n) additional Investments in an aggregate amount not exceeding
$1.0 million at any one time outstanding.
"Permitted Lien" means (a) Liens existing on the Issue Date;
(b) Liens imposed by governmental authorities for taxes, assessments or other
charges not yet subject to penalty or which are being contested in good faith
and by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (c) statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen or
other like Liens arising by operation of law in the ordinary course of business,
provided that (i) the underlying obligations are not overdue for a period of
more than 30 days or (ii) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company or its Restricted Subsidiary, as the case
may be, in accordance with GAAP; (d) Liens securing the performance of bids,
trade contracts (other than borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (e) easements,
rights-of-way, zoning, similar restrictions and other similar encumbrances or
title defects which, singly or in the aggregate, do not in any case materially
detract from the value of the property subject thereto (as such property is used
by the Company or any of its Restricted Subsidiaries) or interfere with the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries; (f) Liens arising by operation of law in connection with
judgments, but only to the extent, for an amount and for a period not resulting
in an Event of Default with respect thereto; (g) pledges or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security legislation; (h) Liens
securing the Notes; (i) Liens securing Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or is merged with or into the
Company or a Restricted Subsidiary or Liens securing Indebtedness incurred in
16
connection with an Acquisition, provided that such Liens were in existence prior
to the date of such Acquisition, merger or consolidation, were not incurred in
anticipation thereof, and do not extend to any other assets; (j) Liens arising
from Purchase Money Indebtedness permitted to be incurred pursuant to clause (f)
of the definition of "Permitted Indebtedness," provided, such Liens relate
solely to the property which is subject to such Purchase Money Indebtedness; (k)
leases or subleases granted to other persons in the ordinary course of business
not materially interfering with the conduct of the business of the Company or
any of its Restricted Subsidiaries or materially detracting from the value of
the relative assets of the Company or any Restricted Subsidiary; (l) Liens
arising from precautionary Uniform Commercial Code financing statement filings
regarding operating leases entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business; (m) Liens securing Refinancing
Indebtedness incurred to refinance any Indebtedness that was previously so
secured in a manner no more adverse to the Holders of the Notes in any material
respect than the terms of the Liens securing such refinanced Indebtedness
provided that the Indebtedness secured is not increased and the lien is not
extended to any additional assets or property that would not have been security
for the Indebtedness refinanced; (n) Liens arising under options or agreements
to sell assets; (o) other Liens securing obligations incurred in the ordinary
course of business, which obligations do not exceed $1.0 million in the
aggregate at any one time outstanding; (p) Liens securing Interest Rate Swap or
Hedging Obligations; (q) Liens on any property or assets of a Restricted
Subsidiary granted in favor of the Company or any Wholly-Owned Restricted
Subsidiary; (r) Liens securing the Obligations under a Credit Agreement,
including revolving credit Indebtedness of up to $40.0 million and (s) any
extension, renewal or replacement, in whole or in part, of any Lien described in
the foregoing clauses (a) through (r); provided, that any such extension,
renewal or replacement shall not extend to any additional property or assets.
"Permitted Transferee" means Holdings, U.S. Equity Partners,
L.P. and U.S. Equity Partners (Offshore), L.P. or any of their respective
Affiliates or successors. The term "Permitted Transferee" shall be deemed to
include any other Holder or Holders of Equity Interests of the Company having
ordinary voting power if Xxxxxxxxxxx Xxxxxxx & Co., or any Affiliate thereof,
shall hold the irrevocable general proxy of each such Holder in respect of the
shares held by such Holder.
"Person" means any individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency or
political subdivision thereof.
"Preferred Equity Interest" of any Person means any Equity
Interest of such Person that has preferential rights to any other Equity
Interest of such Person with respect to dividends or redemptions or upon
liquidation.
17
"Public Equity Offering" means a public offering by the
Company or Holdings of shares of its common stock (however designated and
whether voting or non-voting) and any and all rights, warrants or options to
acquire such Qualified Equity Interests; provided, however, that in connection
with any such Public Equity Offering by Holdings the net proceeds of such Public
Equity Offering are contributed to the Company as equity.
"Purchase Agreement" means the purchase agreement dated as of
December 17, 1997 between the Initial Purchasers, the Company and certain
Guarantors.
"Purchase Money Indebtedness" of any Person means any
Indebtedness of such Person to any seller or other Person incurred solely to
finance the acquisition (including in the case of a Capitalized Lease
Obligation, the lease) or construction of any real or personal tangible property
which, in the reasonable good faith judgment of the Board of Directors of the
Company, is directly related to a Related Business of the Company and which is
incurred concurrently with such acquisition and is secured only by the assets so
financed.
"QIB" means a Qualified Institutional Buyer as defined in Rule
144A of the Securities Act.
"Qualified Equity Interests" means any Equity Interests of the
Company that are not Disqualified Equity Interests.
"Qualified Exchange" means any legal defeasance, redemption,
retirement, repurchase or other acquisition of Equity Interests or Indebtedness
of the Company issued on or after the Issue Date with the Net Cash Proceeds
received by the Company from the substantially concurrent sale of Qualified
Equity Interests or any exchange of Qualified Equity Interests for any Equity
Interests or Indebtedness of the Company issued on or after the Issue Date.
"Record Date" means June 1 and December 1 of each year.
"Refinancing Indebtedness" means Indebtedness (a) issued in
exchange for, or the proceeds from the issuance and sale of which are used
substantially concurrently to repay, redeem, defease, refund, refinance,
discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness in a principal amount or having a liquidation preference not to
exceed (after deduction of reasonable and customary fees and expenses incurred
in connection with the Refinancing) the lesser of (i) the principal amount or
liquidation preference of the
18
Indebtedness so refinanced (including premiums, if any, and fees in connection
therewith) and (ii) if such Indebtedness being Refinanced was issued with an
original issue discount, the accreted value thereof (as determined in accordance
with GAAP) at the time of such Refinancing; provided, that (A) such Refinancing
Indebtedness shall (I) not have a Weighted Average Life to Maturity shorter than
that of the Indebtedness to be so refinanced at the time of such Refinancing and
(II) in all respects, be no less subordinated or junior, if applicable, to the
rights of Holders of the Notes than was the Indebtedness to be refinanced, (B)
such Refinancing Indebtedness shall have no installment of principal (or
mandatory redemption payment) scheduled to come due earlier than the scheduled
maturity of any installment of principal of the Indebtedness to be so refinanced
which was scheduled to come due prior to the Stated Maturity, and (C) such
Refinancing Indebtedness shall be secured (if secured) in a manner no more
adverse to the Holders of the Notes than the terms of the Liens (if any)
securing such refinanced Indebtedness, including, without limitation, the amount
of Indebtedness secured shall not be increased.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and among the Company and
the other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time.
"Related Business" means the business conducted (or proposed
to be conducted) by the Company and its Subsidiaries as of the Issue Date and
any and all businesses that in the good faith judgment of the Board of Directors
of the Company are reasonably related businesses.
"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 Investment" means, in one or a series of related
transactions, any Investment, other than investments in Cash Equivalents and
other Permitted Investments; provided, however, that a merger of another Person
with or into the Company or a Restricted Subsidiary otherwise permitted in
accordance with the terms of this Indenture shall not be deemed to be a
Restricted Investment so long as the surviving entity is the Company or a direct
wholly owned Restricted Subsidiary.
"Restricted Payment" means, with respect to any Person, (a)
the declaration or payment of any dividend or other distribution in respect of
Equity Interests
19
of such Person or any parent or Subsidiary of such Person, (b) any payment on
account of the purchase, redemption or other acquisition or retirement for value
of Equity Interests of such Person or any Subsidiary or parent of such Person,
(c) other than with the proceeds from the substantially concurrent sale of, or
in exchange for, Refinancing Indebtedness, any purchase, redemption, or other
acquisition or retirement for value of, any payment in respect of any amendment
of the terms of or any defeasance of, any Subordinated Indebtedness, directly or
indirectly, by such Person or a parent or Subsidiary of such Person prior to the
scheduled maturity, any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Indebtedness and (d) any Restricted
Investment by such Person; provided, however, that the term "Restricted Payment"
does not include (i) any dividend, distribution or other payment on or with
respect to Equity Interests of an issuer to the extent payable solely in shares
of Qualified Equity Interests of such issuer; and (ii) any dividend,
distribution or other payment to the Company or to any Restricted Subsidiary, by
any Restricted Subsidiary; and (iii) dividends or distributions by a Restricted
Subsidiary of the Company, provided that to the extent that a portion of such
dividend or distribution is paid to a holder of Equity Interests of such
Restricted Subsidiary other than a Company or a Restricted Subsidiary, such
portion of such dividend or distribution is not greater than such holders pro
rata aggregate common equity in such Restricted Subsidiary.
"Restricted Securities Legend" means the legend set forth in
Exhibit A and Exhibit B to be placed on all Series A Notes issued under this
Indenture.
"Restricted Subsidiary" means a Subsidiary of the Company
other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Shelf Registration Statement" means the shelf registration
statement filed under Rule 415 of the Securities Act pursuant to the
Registration Rights Agreement.
"Stated Maturity," when used with respect to any Note, means
December 15, 2007.
"Subordinated Indebtedness" means Indebtedness of the Company
or a Restricted Subsidiary that is expressly subordinated in right of payment by
its terms or the
20
terms of any document or instrument or instrument relating thereto to the Notes
or such Guarantee, as applicable.
"Subsidiary," with respect to any Person, means (a) a
corporation a majority of whose Equity Interests with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (b) any other Person
(other than a corporation) in which such Person, one or more Subsidiaries of
such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest, or (c) a partnership in which such Person or a
Subsidiary of such Person is, at the time, a general partner and in which such
Person, directly or indirectly, at the date of determination thereof has at
least a majority ownership interest. Unless the context requires otherwise,
Subsidiary means each direct and indirect Subsidiary of the Company.
"Subsidiary Guarantees" means the Subsidiary Guarantees of the
Guarantors in the form set forth as Exhibit J hereto.
"Third-Party Evaluator" shall mean an investment banking firm
of national reputation that is not an Affiliate of the Company or a Subsidiary;
provided, that if the subject matter, type or scope of the evaluation is outside
the scope of evaluation customarily done by investment banking firms, then such
Third-Party Evaluator shall be an accounting firm or appraisal or valuation firm
of national reputation that is not an Affiliate of, and is otherwise independent
of, the Company and its Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date on which this Indenture is qualified under the TIA.
"Transactions" means the Offering, the acquisition by the
Company of National Law Publishing Company, Inc. pursuant to the Stock Purchase
Agreement dated as of October 23, 1997, the contribution of an aggregate of
$108.5 million to the equity capital of the Company by Holdings, and the
repayment of a $31.5 million secured promissory note by ALM to the former owner
of American Lawyer Media, L.P. and a $32.0 million equity bridge note by ALM to
an affiliate of Xxxxxxxxxxx Xxxxxxx Group, Inc.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least five Business Days prior
to the date fixed for repayment (or, if such Statistical Release is no longer
published, any publicly available source or similar market data)) most nearly
equal to the then remaining Weighted Average Life to Maturity of the
21
Notes (calculated as if the first date on which the Notes can be redeemed at the
option of the Company pursuant to paragraph (a) of Section 3.07 hereof were the
final maturity of the Notes); provided, however, that if such Weighted Average
Life to Maturity of the Notes is not equal to the constant maturity of a United
States Treasury security for which a weekly average yield is given, the Treasury
Rate shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if such Weighted Average
Life to Maturity of the Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Trustee" means the party named as such in the preamble until
a successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that does not own any Capital Stock of, or own or hold any Lien on any property
of, the Company or any other Restricted Subsidiary of the Company and that, at
the time of determination, shall be an Unrestricted Subsidiary (as designated by
the Board of Directors of the Company); provided, that such Subsidiary (a) shall
not engage, to any substantial extent, in any line or lines of business activity
other than a Related Business, (b) has no Indebtedness other than Non-Recourse
Debt, (c) is a Person with respect to which neither the Company nor any of the
Subsidiaries has any direct or indirect obligation to subscribe for additional
Equity Interests or maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified level of operating results; and (d)
has not guaranteed or otherwise directly or indirectly provided credit support
for any Indebtedness of the Company or any of its Restricted Subsidiaries.
"U.S. Government Obligations" means direct noncallable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"U.S. Person" means (a) any individual resident in the United
States, (b) any partnership or corporation organized or incorporated under the
laws of the United States, (c) any estate of which an executor or administrator
is a U.S. Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets),
22
(d) any trust of which any trustee is a U.S. Person (other than a trust of which
at least one trustee is a non-U.S. Person who has sole or shared investment
discretion with respect to its assets and no beneficiary of the trust (and no
settler, if the trust is revocable) is a U.S. Person), (e) any agency or branch
of a foreign entity located in the United States, (f) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a U.S. Person, (g) any discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States (other than such an account held for the benefit or account of a non-U.S.
Person), (h) any partnership or corporation organized or incorporated under the
laws of a foreign jurisdiction and formed by a U.S. Person principally for the
purpose of investing in securities not registered under the Securities Act
(unless it is organized or incorporated and owned, by "accredited investors"
within the meaning of Rule 501(a) under the Securities Act who are not natural
persons, estates or trusts); provided, however, that the term "U.S. Person"
shall not include (i) a branch or agency of a U.S. Person that is located and
operating outside the United States for valid business purposes as a locally
regulated branch or agency engaged in the banking or insurance business, (ii)
any employee benefit plan established and administered in accordance with the
law, customary practices and documentation of a foreign country and (iii) the
international organizations set forth in Section 902(o)(vii) of Regulation S
under the Securities Act and any other similar international organizations, and
their agencies, affiliates and pension plans.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" means a Restricted
Subsidiary all the Equity Interests of which are owned by the Company or one or
more Wholly-Owned Restricted Subsidiaries of the Company (other than directors'
qualifying shares and nominal amounts required to be held by foreign nationals
under applicable law).
SECTION 1.02 OTHER DEFINITIONS
Defined in
Term Section
---- --------
"Acceleration Notice" 6.02
"Additional Guarantee" 10.07
23
Defined in
Term Section
---- --------
"Additional Guarantor" 10.07
"Affiliate Transaction" 4.14
"Asset Sale" 4.08
"Asset Sale Offer" 4.08
"Asset Sale Offer Amount" 4.08
"Asset Sale Offer Period" 4.08
"Asset Sale Offer Price" 4.08
"Asset Sale Purchase Date" 4.08
"Benefitted Party" 11.01
"Calculation Date" 1.01
"Cedel" 2.01
"Change of Control Offer" 4.07
"Change of Control Offer Period" 4.07
"Change of Control Payment" 4.07
"Change of Control Purchase Date" 4.07
"Change of Control Purchase Price" 4.07
"Company" Preamble
"Covenant Defeasance" 8.03
"DTC" 2.03
"Euroclear" 2.01
"Event of Default" 6.01
"Excess Proceeds" 4.08
"Global Notes" 2.01
"IAI Global Note" 2.01
"Incurrence Date" 4.10
"Institutional Accredited Investors" 2.06
"Legal Defeasance" 8.02
"Xxxxx'x" 1.01
"Notes" preamble
"Offer Amount" 4.08
"Offer Period" 4.08
"Paying Agent" 2.03
"Payment Default" 6.01
"Payment Notice" 10.03
24
Defined in
Term Section
---- --------
"Purchase Date" 4.08
"Refinancing" 1.01
"Registrar" 2.03
"Regulation S" 2.01
"Regulation S Permanent Global Note" 2.07
"Regulation S Temporary Global Note" 2.01
"Restricted Payments" 4.09
"Rule 144A" 2.01
"S&P" 1.01
"Securities Act" 2.06
"Series A Notes" preamble
"Series B Notes" preamble
"U.S. Global Note" 2.01
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 Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
25
SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by
the SEC from time to time.
Article II
THE NOTES
SECTION 2.01 FORM AND DATING
(a) The Series A Notes and the Trustee's certificate of
authentication thereon shall be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Series B Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). The Company shall
furnish any such legend not contained in Exhibit A or Exhibit B to the Trustee
in writing. Each Note shall be dated the date of its authentication. The terms
and provisions contained in the Notes 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.
26
(b) Global Notes. The Series A Notes are being offered and
sold by the Company pursuant to the Purchase Agreement.
The Series A Notes offered and sold in reliance on Rule 144A
under the Securities Act ("Rule 144A") to QIBs, or offered and sold to IAIs,
both as provided in the Purchase Agreement, will be issued in denominations of
$1,000 and integral multiples thereof on the Issue Date initially in the form of
one or more permanent global Notes in definitive, fully registered form without
interest coupons with the Global Notes Legend and the Restricted Securities
Legend set forth in Exhibit A hereto (each, respectively, a "U.S. Global Note"
or an "IAI Global Note") which shall be deposited on behalf of the purchasers of
the Series A Notes represented thereby with the Trustee, at its New York office,
as custodian for the Depositary, initially The Depository Trust Company ("DTC"),
duly executed by the Company and authenticated by the Trustee as hereinafter
provided, and registered in the name of DTC or its nominee, in each case for
credit to the accounts of DTC's Direct Participants and Indirect Participants.
The aggregate principal amount of the U.S. Global Note or the IAI Global Note,
as the case may be, may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, in connection with the transfer or exchange of interests, as
hereinafter provided.
The Series A Notes offered and sold in offshore transactions
in reliance on Regulation S under the Securities Act ("Regulation S"), as
provided in the Purchase Agreement, will be issued in denominations of $1,000
and integral multiples thereof on the Issue Date initially in the form of a
single, temporary, global Note in definitive, fully registered form without
interest coupons with the Global Notes Legend and Restricted Securities Legend
set forth in Exhibit A hereto (the "Regulation S Temporary Global Note"). The
Regulation S Temporary Global Note will be deposited on behalf of the purchasers
of the Series A Notes represented thereby with the Trustee, at its New York
office, as custodian for the Depositary, initially DTC, and registered in the
name of a nominee of DTC for credit to the accounts of Indirect Participants at
the Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("CEDEL"),
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Regulation S Temporary Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with the transfer of interests as hereinafter provided.
The Applicable Procedures shall apply to interests in the
Regulation S Temporary Global Note and the Regulation S Permanent Global Note
(as defined herein) that are held by the Holders through Euroclear or Cedel.
27
Upon consummation of the Exchange Offer, the Series B Notes
may be issued in the form of one or more permanent Global Notes in definitive,
fully registered form without interest coupons with the Global Notes Legend but
not the Restricted Securities Legend set forth in Exhibit A hereto, registered
in the name of the Depositary or a nominee of the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of such Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, in connection with the transfer or exchange of
interests, as hereinafter provided.
(c) Certificated Notes. In addition to the provisions of
Section 2.11, entitlement holders with security entitlements in Global Notes
may, upon request to the Trustee, receive a certificated Series A Note, which
certificated Series A Note shall bear the Restricted Securities Legend set forth
in Exhibit A hereto.
After a transfer of any Series A Notes during the period of
the effectiveness of a Shelf Registration Statement with respect to the Series A
Notes, all requirements for Restricted Securities Legends on such Series A Note
will cease to apply, and a certificated Series A Note without a Restricted
Securities Legend will be available to the holder of such Series A Notes. Upon
the consummation of an Exchange Offer with respect to the Series A Notes
pursuant to which holders of Series A Notes are offered Series B Notes in
exchange for their Series A Notes, certificated Series A Notes with the
Restricted Securities Legend set forth in Exhibit A hereto will be available to
holders of such Series A Notes that do not exchange their Series A Notes, and
Series B Notes in certificated form without the Restricted Securities Legend set
forth in Exhibit A hereto will be available to holders that exchange such Series
A Notes in such Exchange Offer.
(d) Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges, redemptions and transfers of interest. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.07 hereof.
Except as set forth in Section 2.07 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
28
(e) Book-Entry Provisions. This Section 2.01(e) shall apply
only to the Regulation S Temporary Global Note, the U.S. Global Note, the IAI
Global Note, the Regulation S Permanent Global Note and the Series B Notes
issued in the form of one or more permanent Global Notes (collectively, the
"Global Notes") deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(e), authenticate and make available for delivery
initially one or more Global Notes that (i) shall be registered in the name of
the Depositary or the nominee of the Depositary for such Global Note or Global
Notes or the nominee of such Depositary and (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instructions or held
by the Trustee as custodian for the Depositary.
Direct Participants and Indirect Participants shall have no
rights either under this Indenture with respect to any Global Note held on their
behalf by the Depositary or by the Trustee as custodian for the Depositary or
under such Global Note, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Direct and Indirect Participants, the operation of customary
practices of such Depositary governing the exercise of the rights of an
entitlement holder with a security entitlement in any Global Note.
SECTION 2.02 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes and may
be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers, authenticate (1) Series A Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Series A Notes, and (2)
Series B Notes for issue only
29
in an Exchange Offer, pursuant to the Registration Rights Agreement in exchange
for Series A Notes of a like principal amount. The aggregate principal amount of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.03 REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
promptly 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 DTC to act as Depositary with
respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
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 Liquidated Damages, if any, or interest on the
Notes, 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
30
or a Subsidiary of the Company) 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 Notes.
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 five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company shall otherwise comply with TIA Section 312(a)
SECTION 2.06 PAYMENT
The Company and the Trustee will treat the persons in whose
names the Notes are registered (including Notes represented by Global Notes) as
the owners thereof for the purpose of receiving payments and for any and all
other purposes whatsoever. Payments in respect of the principal, premium,
Liquidated Damages, if any, and interest on Global Notes registered in the name
of DTC or its nominee will be payable by the Trustee to DTC or its nominee as
the registered holder under this Indenture. Consequently, neither the Company,
the Trustee nor any agent of the Company or the Trustee has or will have any
responsibility or liability for (i) any aspect of DTC's records or any Direct
Participant's or Indirect Participant's records relating to or payments made on
account of beneficial ownership interests in the Global Notes or for
maintaining, supervising or reviewing any of DTC's records or any Direct
Participant's or Indirect Participant's records relating to the beneficial
ownership interests in any Global Note or (ii) any other matter relating to the
actions and practices of DTC or any of its Direct Participants or Indirect
Participants.
SECTION 2.07 TRANSFER AND EXCHANGE
When Notes are presented to the Registrar or a co-registrar
with a request to register a transfer or to exchange them for an equal principal
amount of Notes of other denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are met;
provided, that any Notes presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Xxxxxxxxx
00
or co-registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registration of transfers and exchanges, the
Company shall issue and the Trustee shall authenticate Notes at the Registrar's
request. No service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax, fee, assessment
or similar governmental charge payable in connection therewith (other than any
such transfer tax or similar governmental charge payable upon exchanges pursuant
to Sections 2.11, 3.06 or 9.05 hereof).
The Company shall not be required (i) to issue, register the
transfer of or exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the day of selection,
or (ii) to register the transfer, or exchange, or any Note so selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.
(a) Notwithstanding any provision to the contrary herein, so
long as a Global Note remains outstanding and is held by or on behalf
of the Depositary, transfers of a Global Note, in whole or in part, or
of any security entitlement therein, shall only be made in accordance
with Section 2.01(e) and this Section 2.07(a); provided, however, that
security entitlements with respect to a Global Note may be created in
the form of, or transferred to other entitlement holders who take
delivery thereof in the form of a security entitlement in the same
global Note in accordance with the transfer restrictions set forth in
the Restricted Securities Legend and under the heading "Notice to
Investors" in the Company's Offering Memorandum dated December 17,
1997. Furthermore, notwithstanding any provision herein to the
contrary, transfers by an IAI (x) which is not a QIB and (y) is an
initial investor in the Series A Notes, cannot be made to an IAI that
is not a QIB.
(i) Except for transfers or exchanges made in accordance with
clauses (ii) through (iv) of this Section 2.07(a), transfers
of a Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to nominees of the Depositary
or to a successor of the Depositary or such successor's
nominee.
(ii) U.S. Global Note or IAI Global Note to Regulation S
Temporary Global Note. If an entitlement holder with a
security entitlement in the U.S. Global Note or the IAI Global
Note deposited with the Depositary or the Trustee as custodian
for the Depositary, wishes at any time to transfer its
security entitlement in such U.S. Global Note or such IAI
32
Global Note, as the case may be, to a person who is required
to take delivery thereof in the form of a security entitlement
in the Regulation S Temporary Global Note, such owner may,
subject to the rules and procedures of the Depositary,
exchange or cause the exchange of such security entitlement
for an equivalent security entitlement in the Regulation S
Temporary Global Note. Upon receipt by the Trustee, as
Registrar, at its office in The City of New York of (1)
instructions given in accordance with the Depositary's
procedures from a Direct Participant or an Indirect
Participant directing the Trustee to create or cause to be
created a security entitlement in the Regulation S Temporary
Global Note in an amount equal to the security entitlement in
the U.S. Global Note or in the IAI Global Note, as the case
may be, to be exchanged, (2) a written order given in
accordance with the Depositary's procedures containing
information regarding the participant account of the
Depositary and the Euroclear or Cedel account to be credited
with such increase and (3) a certificate in the form of
Exhibit C attached hereto given by the holder of such security
entitlement, then the Trustee, as Registrar, shall instruct
the Depositary to reduce or cause to be reduced the principal
amount of the U.S. Global Note or the IAI Global Note, as the
case may be, and to increase or cause to be increased the
principal amount of the Regulation S Temporary Global Note by
the aggregate principal amount of the security entitlement in
the U.S. Global Note or the IAI Global Note, as the case may
be, equal to the security entitlement in the Regulation S
Temporary Global Note to be exchanged or transferred, to
create or cause to be credited to the account of the person
specified in such instructions a security entitlement in the
Regulation S Temporary Global Note equal to the reduction in
the principal amount of the U.S. Global Note or the IAI Global
Note, as the case may be, and to debit or cause to be debited
from the account of the person making such exchange or
transfer the security entitlement in the U.S. Global Note or
the IAI Global Note as the case may be, that is being
exchanged or transferred.
(iii) Regulation S Temporary Global Note to U.S. Global Note
or IAI Global Note. If an entitlement holder with a security
entitlement in the Regulation S Temporary Global Note
deposited with the Depositary or with the Trustee as custodian
for the Depositary wishes at any time to transfer its security
entitlement in such Regulation S Temporary Global Note to a
person who is required to take delivery thereof in the form of
a security entitlement in the U.S. Global Note or, subject to
Section 2.07(a)(vii), in the IAI Global Note, such holder may,
subject to the rules and procedures of Euroclear or Cedel, as
the case may be, and the
33
Depositary, exchange or cause the exchange of such interest
for an equivalent security entitlement in the U.S. Global Note
or in the IAI Global Note, as the case may be. Upon receipt by
the Trustee, as Registrar at its office in The City of New
York of (1) instructions from Euroclear or Cedel, if
applicable, and the Depositary, directing the Trustee, as
Registrar, to create or cause to be created a security
entitlement in the U.S. Global Notes or in the IAI Global
Note, as the case may be, equal to the security entitlement in
the Regulation S Temporary Global Note to be exchanged or
transferred, such instructions to contain information
regarding the participant account with the Depositary to be
credited with such increase, (2) a written order given in
accordance with the Depositary's procedures containing
information regarding the participant account of the
Depositary and (3) a certificate in the form of Exhibit D
attached hereto given by the owner of such beneficial
interest, then Euroclear or Cedel or the Trustee, as
Registrar, as the case may be, will instruct the Depositary to
reduce or cause to be reduced the Regulation S Temporary
Global Note and to increase or cause to be increased the
principal amount of the U.S. Global Note or of the IAI Global
Note, as the case may be, by the aggregate principal amount of
the security entitlement in the Regulation S Temporary Global
Note to be exchanged or transferred and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with
such reduction, to create or cause to be created to the
account of the person specified in such instructions a
security entitlement in the U.S. Global Note or in the IAI
Global Note, as the case may be, equal to the reduction in the
principal amount of the Regulation S Temporary Global Note and
to debit or cause to be debited from the account of the person
making such exchange or transfer the security entitlement in
the Regulation S Temporary Global Note that is being exchanged
or transferred.
(iv) Global Note to Transfer Restricted Security. If an
entitlement holder with a security entitlement in a Global
Note deposited with the Depositary or with the Trustee as
custodian for the Depositary wishes at any time to transfer
its security entitlement in such Global Note to a person who
is required to take delivery thereof in the form of a Transfer
Restricted Security, such owner may, subject to the rules and
procedures of Euroclear or Cedel, if applicable, and the
Depositary, cause the exchange of such security entitlement
for one or more Transfer Restricted Securities of any
authorized denomination or denominations and of the same
aggregate principal amount. Upon receipt by the Trustee, as
Registrar, at its office in The City of New York of (1)
instructions from Euroclear
34
or Cedel, if applicable, and the Depositary directing the
Trustee, as Registrar, to authenticate and deliver one or more
Transfer Restricted Securities of the same aggregate principal
amount as the security entitlement in the Global Note to be
exchanged, such instructions to contain the name or names of
the designated transferee or transferees, the authorized
denomination or denominations of the Transfer Restricted
Securities to be so issued and appropriate delivery
instructions, (2) a certificate in the form of Exhibit E
attached hereto given by the entitlement holder of such
security entitlement to the effect set forth therein, (3) a
certificate in the form of Exhibit F attached hereto given by
the person acquiring the Transfer Restricted Securities for
which such security entitlement is being exchanged, to the
effect set forth therein, and (4) such other certifications,
legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act, then
Euroclear or Cedel, if applicable, or the Trustee, as
Registrar, as the case may be, will instruct the Depositary to
reduce or cause to be reduced such Global Note by the
aggregate principal amount of the security entitlement therein
to be exchanged and to debit or cause to be debited from the
account of the person making such transfer the security
entitlement in the Global Note that is being transferred, and
concurrently with such reduction and debit the Company shall
execute, and the Trustee shall authenticate and make available
for delivery, one or more Transfer Restricted Securities of
the same aggregate principal amount in accordance with the
instructions referred to above.
(v) Transfer Restricted Security to Transfer Restricted
Security. If a holder of a Transfer Restricted Security wishes
at any time to transfer such Transfer Restricted Security to a
person who is required to take delivery thereof in the form of
a Transfer Restricted Security, such holder may, subject to
the restrictions on transfer set forth herein and in such
Transfer Restricted Security, cause the exchange of such
Transfer Restricted Security for one or more Transfer
Restricted Securities of any authorized denomination or
denominations and of the same aggregate principal amount. Upon
receipt by the Trustee, as Registrar, at its office in The
City of New York of (1) such Transfer Restricted Security,
duly endorsed as provided herein, (2) instructions from such
holder directing the Trustee, as Registrar, to authenticate
and make available for delivery one or more Transfer
Restricted Securities of the same aggregate principal amount
as the Transfer Restricted Security to be exchanged such
35
instructions to contain the name or authorized denomination or
denominations of the Transfer Restricted Securities to be so
issued and appropriate delivery instructions, (3) a
certificate from the holder of the Restricted Security to be
exchanged in the form of Exhibit E attached hereto, (4) a
certificate in the form of Exhibit F attached hereto given by
the person acquiring the Transfer Restricted Securities for
which such Transfer Restricted Security is being exchanged, to
the effect set forth therein, and (5) such other
certifications, legal opinions or other information as the
Company may reasonably require to confirm that such transfer
is being made pursuant to an exemption from, or in a
transaction not subject to the registration requirements of
the Securities Act, then the Trustee, as Registrar, shall
cancel or cause to be cancelled such Transfer Restricted
Security and concurrently therewith, the Company shall
execute, and the Trustee shall authenticate and make available
for delivery, one or more Transfer Restricted Securities of
the same aggregate principal amount at maturity, in accordance
with the instructions referred to above.
(vi) Other Exchanges. In the event that a security entitlement
with respect to a Global Note is exchanged for Notes in
definitive registered form pursuant to Section 2.11 prior to
the effectiveness of a Shelf Registration Statement with
respect to such Notes, such Notes may be exchanged only in
accordance with such procedures as are substantially
consistent with the provisions of clauses (ii) through (v)
above (including the certification requirements intended to
ensure that such transfer comply with Rule 144A, Rule 144,
Rule 501(a)(1), (2), (3) or (7) of Regulation D, or Regulation
S of the Securities Act, as the case may be) and such other
procedures as may from time to time to adopted by the Company.
(vii) Restricted Period. Prior to the termination of the
40-day Restricted Period with respect to the issuance of the
Notes, transfers of security entitlements in the Regulation S
Temporary Global Note to U.S. Persons shall be limited to
transfers to QIBs made pursuant to the provisions of Sections
2.07(a)(iii). The Company shall advise the Trustee as to the
termination of the restricted period and the Trustee may rely
conclusively thereon.
(viii) Regulation S Temporary Global Note to Regulation S
Permanent Global Note. Following the termination of the 40-day
Restricted Period with respect to the issuance of the Notes,
security entitlements in the Regulation S Temporary Global
Note shall be exchanged for security entitlements in a Global
Note in definitive, fully registered from without
36
interest coupons, with the Global Notes Legend set forth in
Exhibit A hereto, but without the Restricted Securities Legend
as set forth therein (a "Regulation S Permanent Global Note"),
pursuant to the rules and procedures of the Depositary;
provided, however, that prior to (i) the payment of interest
or principal with respect to a holder's security entitlement
in the Regulation S Temporary Global Note and (ii) any
exchange of such security entitlement for a security
entitlement in the Regulation S Permanent Global Note,
Euroclear or Cedel shall receive a certificate substantially
in the form of Exhibit G hereto from the entitlement holder of
such security entitlement and Euroclear and Cedel shall
deliver a certificate substantially in the form of Exhibit H
hereto to the Trustee (or the paying agent if different from
the Trustee). Upon proper presentment to the Trustee of a
certificate substantially in the form of Exhibit I hereto and
subject to the rules and procedures of DTC or its direct or
indirect participants, including Euroclear and Cedel, a
security entitlement in a Regulation S Permanent Global Note
may be exchanged for a certificated Note that is free from any
restriction on transfer (other than such as are solely
attributable to any holder's status).
(b) Except in connection with an Exchange Offer or a Shelf
Registration Statement contemplated by and in accordance with the terms
of the Registration Rights Agreement, if Series A Notes are issued upon
the transfer, exchange or replacement of Series A Notes bearing the
Restricted Securities Legend set forth in Exhibit A hereto, or if a
request is made to remove such Restricted Securities Legend on Series A
Notes, the Series A notes so issued shall bear the Restricted
Securities Legend, or the Restricted Securities Legend shall not be
removed, as the case may be, unless there is delivered to the Company
such satisfactory evidence, which may include an opinion of counsel
licensed to practice law in the State of New York, as may be reasonably
required by the Company, that neither the legend nor the restrictions
on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule 144, Rule
501(a)(1), (2), (3) or (7) of Regulation D or Regulation S under the
Securities Act or, with respect to Transfer Restricted Securities, that
such Notes are not "restricted" within the meaning of Rule 144 under
the Securities Act. Upon provision of such satisfactory evidence, the
Trustee, at the direction of the Company, shall authenticate and make
available for delivery Series A Notes that do not bear the legend.
(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary and
the Company shall have
37
no responsibility for any actions taken or not taken by the Trustee as
agent or custodian of the Depositary.
SECTION 2.08 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee's requirements and the
requirements of Section 8-405 of the Uniform Commercial Code 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 Note is replaced. The Company may
charge the Holder for the Company's expenses in replacing a Note.
Every replacement Note 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 Notes duly issued hereunder.
SECTION 2.09 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in this
Section, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.08 hereof, it
ceases to be outstanding unless the Trustee and the Company receives proof
satisfactory to them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note 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 in trust, in accordance with the provisions
of this Indenture, on a redemption date or maturity date, money sufficient to
pay all principal and interest payable on that date with respect to the Notes
(or portions thereof) to be redeemed or maturing,
38
as the case may be, then on and after that date such Notes (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10 TREASURY NOTES
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, notice, waiver or consent,
Notes owned by the Company or an Affiliate of 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, notice, waiver or
consent, only Notes that a Responsible Officer of the Trustee actually knows are
so owned shall be so considered.
SECTION 2.11 TEMPORARY NOTES
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Until such exchange, holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
SECTION 2.12 CANCELLATION
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act) unless the Company directs the Trustee to deliver such cancelled Notes to
the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.13 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes,
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,
39
in each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall promptly notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Note and the date of the proposed payment.
The 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, the amount of such defaulted interest and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.14 CUSIP NUMBERS
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
Article III
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (a) the clause of this Indenture pursuant to which the redemption shall
occur, (b) the redemption date, (c) the principal amount of Notes to be redeemed
and (d) the redemption price.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If fewer than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance
40
with any other method the Trustee considers fair and appropriate. In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or integral multiples
of $1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION
Subject to the provisions of Section 3.07 hereof, 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 Notes are to be redeemed at its registered address.
The notice shall identify the Notes (including applicable
CUSIP numbers) to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment
or the Paying Agent is prohibited from making such payments pursuant to the
terms of this
41
Indenture, interest on Notes (or portions thereof) called for redemption ceases
to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or the Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to a Responsible Officer of the Trustee, at least
45 days (unless a shorter period is acceptable to the Trustee) prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price stated in the notice. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
At least one Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Notes to be redeemed
on that date other than Notes or portions of Notes called for redemption which
have been delivered by the Company to the Trustee for cancellation. The Trustee
or the Paying Agent shall promptly return to the Company 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, and accrued interest on, all Notes to
be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
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 Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender
42
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption 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 Notes and in Section 4.01 hereof.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note 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 Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION
(a) Except as set forth in paragraphs (b) and (c) of this
Section 3.07, the Company shall not have the option to redeem the Notes prior to
December 15, 2002. Thereafter, the Company shall have the option to redeem the
Notes, in whole or in part, upon not less than 30 days' nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon (and Liquidated
Damages, if any) thereon to the applicable redemption date if redeemed during
the twelve-month period beginning on December 15 of the years indicated below:
Year Percentage
----- ----------
2002....................................... 104.875%
2003....................................... 103.250%
2004....................................... 101.625%
2005 and thereafter........................ 100.000%
(b) Notwithstanding the provisions of paragraph (a) of this
Section 3.07, at any time or from time to time on or prior to December 15, 2000,
the Company may (but shall not have the obligation to) redeem in the aggregate
up to 35% of the aggregate principal amount of the Notes originally outstanding,
at a redemption price of 109.75% of the aggregate principal amount so redeemed,
together with accrued and unpaid interest (and Liquidated Damages, if any) to
the date of redemption out of the Net Cash Proceeds of one or more Public Equity
Offerings; provided however, that immediately following
43
such redemption not less than $113.8 million aggregate principal amount of the
Notes remains outstanding, and provided further, that such redemption shall
occur within 90 days of the closing of such Public Equity Offering.
(c) Notwithstanding the provisions of paragraph (a) of this
Section 3.07, the Notes will also be subject to redemption at any time or from
time to time prior to December 15, 2002 upon not less than 10 nor more than 20
days' notice to each Holder of Notes redeemed, at the option of the Company, in
whole or in part, in integral multiples of $1,000, at a redemption price equal
to 100% of the principal amount thereof plus the applicable Make-Whole Premium
plus accrued and unpaid interest (and Liquidated Damages, if any) to but
excluding the redemption date.
SECTION 3.08 NO MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
Article IV
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
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
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
44
To the extent any payment on the Notes, whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise, is declared to be fraudulent or preferential, set aside or
required to be paid to a trustee, receiver or other similar party under any
bankruptcy, insolvency, receivership or similar law, then if such payment is
recovered by, or paid over to, such trustee, receiver or other similar party,
the Notes or part thereof originally intended to be satisfied by such payment
shall be deemed to be reinstated and outstanding as if such payment had not
occurred.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby 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 REPORTS
(a) Whether or not required by the rules and regulations of
the SEC, so long as any Notes are outstanding, the Company shall furnish to all
Holders, the Trustee and to prospective purchasers of Notes identified to the
Company by an Initial Purchaser, within 15 days after it is or would have been
(if it were subject to such reporting obligations) required to file with the SEC
(i) all quarterly and annual financial statements substantially equivalent to
financial statements that would have been required to be
45
included in reports filed with the SEC 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" and, with respect to
the annual information only, a report thereon by the Company's certified
independent public accountants and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports. In addition, whether or not required by the rules and
regulations of the SEC, at any time after the effectiveness of a registration
statement with respect to the Exchange Offer, the Company shall file a copy of
all such information with the SEC for public availability (unless the SEC will
not accept such a filing) and shall promptly make such information available to
all securities analysts and prospective investors upon request.
(b) For so long as any Transfer Restricted Securities remain
outstanding, the Company and the Guarantors shall furnish to all Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04 COMPLIANCE CERTIFICATE
(a) 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 Restricted Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every section 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) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
46
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03(a) hereof shall
be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article IV or Article V 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.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to a Responsible Officer of 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 COMPLIANCE WITH LAWS, TAXES
The Company shall comply with, and shall cause each of its
Restricted Subsidiaries to comply with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, the non-compliance with
which would materially affect the business, prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and its Restricted
Subsidiaries taken as a whole.
The Company shall pay, and shall cause each of its Restricted
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 or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
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.
47
SECTION 4.07 CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder shall
have the right, at such Holder's option, pursuant to an offer (subject only to
conditions required by applicable law, if any) by the Company (the "Change of
Control Offer"), to require the Company to repurchase all or any part of such
Holder's Notes (provided, that the principal amount of such Notes must be $1,000
or an integral multiple thereof) on a date (the "Change of Control Purchase
Date") that is no later than 60 Business Days after the date of occurrence of
such Change of Control, at a cash price equal to 101% of the principal amount
thereof (the "Change of Control Purchase Price"), together with accrued and
unpaid interest (and Liquidated Damages, if any) to the Change of Control
Purchase Date. The Change of Control Offer shall be made within 30 Business Days
following a Change of Control by mailing a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes pursuant to the procedures required by this Indenture. The
Change of Control Offer shall remain open for at least 20 Business Days
following the mailing of such Change of Control Offer but in no event longer
than 30 Business Days, unless required by law (the "Change of Control Offer
Period"). Upon expiration of the Change of Control Offer Period, the Company
promptly shall purchase all Notes properly tendered in response to the Change of
Control Offer. The Company shall comply with the requirements of Regulation 14E
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 Notes as a result of a Change of Control. To the extent that
the provisions of any such securities laws or regulations conflict with the
provisions of this paragraph, compliance by the Company or any of the Guarantors
with such laws and regulations shall not in and of itself cause a breach of its
obligations under such covenant.
On or before the Change of Control Purchase Date, the Company
shall, to the extent lawful (a) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (b) deposit with the
Paying Agent cash sufficient to pay the Change of Control Purchase Price
(together with accrued and unpaid interest and Liquidated Damages, if any), of
all Notes so tendered and (c) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate listing the Notes or
portions thereof being purchased by the Company. The Paying Agent shall promptly
pay the Holders of Notes so accepted an amount equal to the Change of Control
Purchase Price (together with accrued and unpaid interest and Liquidated
Damages, if any), and the Trustee shall promptly authenticate and deliver to
such Holders a new Note equal in principal amount to any unpurchased portion of
the Note surrendered; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. Any Notes not so accepted will
be delivered promptly by the Company to the
48
Holder thereof. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date.
If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any,
due on such Interest Payment Date) will be paid to the person in whose name a
Note is registered at the close of business on such Record Date, and such
accrued and unpaid interest (and Liquidated Damages, if applicable) will not be
payable to Holders who tender the Notes pursuant to the Change of Control Offer.
The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
SECTION 4.08 LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK
The Company shall not, and shall not permit any Restricted
Subsidiary to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of its
property, business or assets, including by merger or consolidation (in the case
of a Restricted Subsidiary of the Company), and including any sale or other
transfer or issuance of any Capital Stock of any Restricted Subsidiary, whether
by the Company or a Restricted Subsidiary of either or through the issuance,
sale or transfer of Capital Stock by a Restricted Subsidiary, and including any
sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(a)(i) within 270 days after the date of such Asset Sale, the Net Cash
Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the optional
redemption of the Notes in accordance with the terms of this Indenture or any
other Indebtedness of the Company ranking on a parity with the Notes from time
to time outstanding with similar provisions requiring the Company to make an
offer to purchase or to redeem such Indebtedness with the proceeds of asset
sales, pro rata in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with an original issue discount) of
the Notes and such other Indebtedness then outstanding, or to the repurchase of
the Notes and such other Indebtedness pursuant to a cash offer (subject only to
conditions required by applicable law, if any) (pro rata in proportion to the
respective principal amounts (or accreted values in the case of
49
Indebtedness issued with an original issue discount) of the Notes and such other
Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of
100% of principal amount (or accreted value in the case of Indebtedness issued
with an original issue discount) (the "Asset Sale Offer Price") together with
accrued and unpaid interest and Liquidated Damages, if any, to the date of
payment or (ii) within 270 days following such Asset Sale, the Asset Sale Offer
Amount is (A) invested (or committed, pursuant to a binding commitment subject
only to reasonable, customary closing conditions, to be invested, and in fact is
so invested, within an additional 90 days) in a Person, business, assets or
property which in the good faith reasonable judgment of the Board of Directors
will constitute or be a part of a Related Business of the Company or such
Restricted Subsidiary (if it continues to be a Subsidiary) immediately following
such transaction or (B) used to retire or repay Indebtedness of the Company
and/or any Restricted Subsidiary that ranks pari passu with the Notes and/or the
Guarantees or to permanently reduce the amount of such Indebtedness (provided
that in the case of a revolving credit arrangement or similar arrangement that
makes credit available, such commitment is permanently reduced by such amount).
(b) with respect to any Asset Sale or related series of Asset Sales
involving securities, property or assets with an aggregate Determined Fair
Market Value in excess of $500,000, at least 75% of the consideration for such
Asset Sale or series of related Asset Sales consists of (x) cash or Cash
Equivalents or (y) property or assets usable by the Company or any Restricted
Subsidiary in the ordinary course of conduct of a Related Business; provided,
that if the Fair Market Value of property or assets of the kind specified in
this subclause (y) exceeds $5.0 million, then the Fair Market Value thereof
shall be determined by a Third Party Evaluator; and provided, further, that the
principal amount of the following shall be deemed to be cash for purposes of
this clause (b): (i) any Indebtedness (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto) of
the Company or any Restricted Subsidiary that is assumed or forgiven by the
transferee of any such assets and (ii) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash within 30 days of the closing of such Asset Sale (but in the case of this
subclause (ii), only to the extent of the cash received),
(c) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a pro forma
basis, to, such Asset Sale, and
(d) the Board of Directors of the Company determines in good faith that
the Company or such Restricted Subsidiary, as applicable, receives at least
Determined Fair Market Value for such Asset Sale.
An acquisition of Notes pursuant to an Asset Sale Offer may be
deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to
the uses set forth
50
above (the "Excess Proceeds") exceeds $5.0 million. Each Asset Sale Offer shall
remain open for 20 Business Days following its commencement but in no event
longer than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Asset Sale Offer Period"). Not later than five
Business Days after the termination of the Asset Sale Offer Period (the "Asset
Sale Purchase Date"), the Company shall apply the Asset Sale Offer Amount plus
an amount equal to accrued and unpaid interest and Liquidated Damages, if any,
to the purchase of all Notes or any other Indebtedness properly tendered (on a
pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all
Notes and any other Indebtedness so tendered) at the Asset Sale Offer Price
(together with accrued and unpaid interest and Liquidated Damages, if any).
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the Person in whose name a Note is registered at the close of business on such
Record Date, and such interest (or Liquidated Damages, if applicable) will not
be payable to Holders who tender Notes pursuant to such Asset Sale Offer.
Upon the commencement of an Asset Sale 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 Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 4.08 and the length of time the Asset Sale Offer shall remain
open;
(b) the Asset Sale Offer Amount, the Asset Sale Offer Price
and the Asset Sale Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrete or accrue interest after the Asset Sale Purchase Date;
51
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company,
a depositary, if appointed by the Company, or a paying agent at the
address specified in the notice at least three days before the Asset
Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the depositary or the paying agent, as the case may be,
receives, not later than the expiration of the Asset Sale Offer Period,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Asset Sale Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Asset Sale Purchase Date, the Company shall,
to the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount
has been tendered, all Notes tendered, and shall promptly deliver to the Trustee
an Officers' Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
4.08. The Company, the depository or the paying agent, as the case may be, shall
promptly (but in any case not later than five days after the Change of Control
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered. Any
52
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Change of Control Purchase Date.
To the extent that the aggregate amount of Notes and such
other Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for
general corporate purposes as otherwise permitted by the Indenture, and
following each Asset Sale Offer the Excess Proceeds amount shall be reset to
zero. If required by applicable law, the Asset Sale Offer Period may be extended
as so required; however, if so extended it shall nevertheless constitute an
Event of Default if within 60 Business Days of its commencement the Asset Sale
Offer is not consummated or the properly tendered Notes are not purchased
pursuant thereto.
The Company may apply as a credit in satisfaction of all or
any part of the Company's obligation to make an Asset Sale Offer the aggregate
principal amount of Notes purchased by the Company in open-market transactions
(i.e., excluding Notes optionally redeemed, or required to be purchased by the
Company, pursuant to the terms of this Indenture) within the previous 270 days
immediately preceding the close of the Asset Sale Offer Period and delivered to
the Trustee for cancellation.
Notwithstanding the foregoing provisions of the prior
paragraphs:
(a) the Company and its Restricted Subsidiaries may, in the
ordinary course of business, convey, sell, transfer, assign or
otherwise dispose of inventory, other personal property and services in
the ordinary course of business;
(b) the Company and its Restricted Subsidiaries may convey,
sell, transfer, assign or otherwise dispose of assets pursuant to and
in accordance with Sections 4.09 and 5.01;
(c) the Company and its Restricted Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for
the proper conduct of the business of the Company or such Restricted
Subsidiary, as applicable;
(d) the Company and its Restricted Subsidiaries may convey,
sell, transfer, assign or otherwise dispose of assets to the Company or
any of its Restricted Subsidiaries;
53
(e) the Company and its Restricted Subsidiaries may surrender
or waive contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind;
(f) the Company and its Restricted Subsidiaries may grant
Liens not prohibited by the Indenture;
(g) the Company and its Restricted Subsidiaries may engage in
any transaction or series of related transactions that would otherwise
be an Asset Sale where the Determined Fair Market Value of the assets,
sold, leased, conveyed or otherwise disposed of was less than $500,000;
and
(h) the Company and its Restricted Subsidiaries may sell or
discount, in each case without recourse (other than recourse for a
breach of a representation or warranty), accounts receivable arising in
the ordinary course of business, but only in connection with the
collection or compromise thereof.
In addition to the foregoing, the Company will not, and will
not permit any Restricted Subsidiary to, directly or indirectly make any Asset
Sale of any of the Equity Interests of any Restricted Subsidiary except pursuant
to an Asset Sale of all the Equity Interests of such Restricted Subsidiary.
Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this
section, compliance by the Company or any of its subsidiaries with such laws and
regulations shall not in and of itself cause a breach of its obligations under
such section.
SECTION 4.09 LIMITATION ON RESTRICTED PAYMENTS
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make any Restricted Payment if, after
giving effect to such Restricted Payment on a pro forma basis, (a) a Default or
an Event of Default shall have occurred and be continuing, (b) the Company is
not permitted to incur at least $1.00 of additional Indebtedness pursuant to
clause (a) of the first paragraph of Section 4.10 hereof, (c) the aggregate
amount of all Restricted Payments made by the Company and its Restricted
Subsidiaries, including after giving effect to such proposed Restricted Payment,
from and after the Issue Date, would exceed the sum of (i) 50% of the aggregate
Adjusted Consolidated Net Income of the Company for the period (taken as one
accounting period),
54
commencing January 1, 1998, to and including the last day of the fiscal quarter
ended immediately prior to the date of each such calculation (or, in the event
Adjusted Consolidated Net Income for such period is a deficit, then minus 100%
of such deficit), plus (ii) the aggregate Net Cash Proceeds received by the
Company from the sale of its Qualified Equity Interests (other than (A) to a
Subsidiary of the Company and (B) to the extent applied in connection with a
Qualified Exchange), after the Issue Date, plus (iii) 100% of the aggregate
amount of cash and the Determined Fair Market Value of property other than cash
contributed to the capital of the Company following the Issue Date, plus (iv)
the amount by which Indebtedness of the Company or any Restricted Subsidiary is
reduced on the Company's balance sheet upon the conversion or exchange (other
than by a Subsidiary) subsequent to the Issue Date of any Indebtedness of the
Company or a Restricted Subsidiary convertible or exchangeable for Qualified
Equity Interests of the Company (less the amount of any cash or other property
(other than such Qualified Equity Interest) distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange), plus (v) to the extent
that any Restricted Investment that was made after the Issue Date is sold for
cash, or otherwise liquidated or repaid for cash, the amount of the cash return
of capital with respect to such Restricted Investment (less any taxes and
transaction costs associated with such sale or liquidation), plus (vi) in case
any Unrestricted Subsidiary has been redesignated a Restricted Subsidiary or has
been merged, consolidated or amalgamated with or into, transfers or conveys
assets to, or is liquidated into, the Company or a Restricted Subsidiary, the
Determined Fair Market Value of the Investment of the Company or a Restricted
Subsidiary, as the case may be, in such Unrestricted Subsidiary at the time of
such redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), after deducting any Indebtedness associated with the
Unrestricted Subsidiary so designated or combined or with the assets so
transferred or conveyed.
The provisions of the immediately preceding paragraph will not
prohibit (a) a Qualified Exchange or (b) the payment of any dividend on
Qualified Equity Interests within 60 days after the date of its declaration if
such dividend could have been made on the date of such declaration in compliance
with the foregoing provisions. In addition, clauses (b) and (c) of the
immediately preceding paragraph will not prohibit (a) repurchases of Equity
Interests of Holdings or the Company (or the payment of dividends to Holdings to
be applied to such repurchases) from officers or employees of Holdings or its
Subsidiaries upon death, disability or termination of employment in an aggregate
amount with respect to all officers and employees not to exceed $250,000 per
year or $2.0 million in the aggregate on and after the Issue Date, and
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options; (b) dividends or other Restricted Payments to Holdings, which do not in
the aggregate exceed (i) the actual amount used by Holdings to pay legal fees
and expenses, audit expenses, SEC filing fees, corporate
55
franchise or similar taxes plus (ii) the actual amount used by Holdings to pay
directors' fees, employee costs and miscellaneous administrative expenses,
provided that the aggregate amount expended in any calendar year for the
purposes set forth in this subclause (ii) shall not exceed $250,000, plus (iii)
payments to Holdings to permit Holdings to pay federal, state, local or foreign
tax liabilities, not to exceed with respect to any calendar year the amount of
all such tax liabilities that would otherwise by payable by the Company and its
Subsidiaries to the appropriate taxing authorities if they filed separate tax
returns for such calendar year, but only to the extent that Holdings has an
obligation to pay such tax liabilities relating to the assets, operations or
capital of the Company and its Subsidiaries, provided, however, that (x) in
determining the amount of any such tax payment that is permitted to be paid by
the Company and its Subsidiaries in respect of their federal income tax
liability, such payment shall be determined on the basis of assuming that the
Company is the parent company of an affiliated group filing a consolidated
federal income tax return and that Holdings and each such Subsidiary is a member
of such affiliated group and (y) any payments made pursuant to this subclause
(iii) shall either be used by Holdings to pay such tax liabilities within 90
days of Holdings' receipt of such payment or refunded to the payee; and
provided, further, that the amount of all payments made pursuant to this clause
(b) shall be excluded from the calculation of the amount available for
Restricted Payments pursuant to the preceding paragraph; (c) distributions not
to exceed $100,000 in the aggregate to Holdings to make payments of Liquidated
Damages to the Holders of Holdings Discount Notes as may be required under the
registration rights agreement relating to the Holdings Discount Notes, (d) the
purchase or redemption of any Indebtedness from the Net Cash Proceeds of any
Asset Sale to the extent permitted by Section 4.08 of this Indenture; (e) the
purchase or redemption of any Subordinated Indebtedness following a Change of
Control pursuant to provisions of such Subordinated Indebtedness substantially
similar to those described under Section 4.07 after the Company shall have
complied with the provisions under such Section, including the payment of the
applicable Change of Control Purchase Price, (f) the payment by the Company or
any Restricted Subsidiary of monitoring fees paid to WP Management Partners, LLC
or an Affiliate not in excess of $1.0 million in respect of any year, whether or
not actually paid in such year or deferred and paid in any subsequent year;
provided that the obligation to pay any such fees shall be subordinated to the
Notes, (g) payments by the Company or any of its Restricted Subsidiaries to
Xxxxxxxxxxx Xxxxxxx & Co. or an Affiliate made for any financial advisory,
financing, underwriting or placement services or in respect of other investment
banking activities, including, without limitation, in connection with
acquisitions or divestitures which payments are approved by a majority of the
Board of Directors of the Company in good faith, and (h) Investments in
Unrestricted Subsidiaries, partnerships or joint ventures involving the Company
or any of its Restricted Subsidiaries, if the amount of such Investment (after
taking into account the amount of all other Investments made pursuant to this
clause (h), less any return of capital realized or any repayment of principal
received on such Investments, or any release or other
56
cancellation of any guarantee constituting such Investment, which has not at
such time been reinvested in Investments made pursuant to this clause (h), does
not exceed $5.0 million, provided, that the aggregate amount of all such
Investments in Unrestricted Subsidiaries shall not exceed $5.0 million at any
one time outstanding. The full amount of any Restricted Payment made pursuant to
clauses (a), (d), (e) and (h) of the immediately preceding sentence, however,
will be deducted in the calculation of the aggregate amount of Restricted
Payments available to be made referred to in clause (c) of the immediately
preceding paragraph.
For purposes of this Section, the amount of any Restricted
Payment, if other than in cash, shall be the Determined Fair Market Value
thereof; provided, that in the case of a Restricted Payment consisting of a
Restricted Investment arising as the result of the designation of a Restricted
Subsidiary as an Unrestricted Subsidiary, the amount of the Investment in such
Unrestricted Subsidiary resulting therefrom shall, if greater than $5.0 million,
be determined by the opinion of a Third-Party Evaluator. Not later than the date
of making any Restricted Payment, the Company shall deliver to the Trustee an
Officer's Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculation required by this Section 4.09
were computed, which calculations may be based upon the Company's latest
available financial statements.
SECTION 4.10 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS
Except as set forth in this Section, the Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly,
issue, assume, guarantee, incur, become directly or indirectly liable with
respect to (including as a result of an acquisition), or otherwise become
responsible for, contingently or otherwise (individually and collectively, to
"incur" or, as appropriate, an "incurrence"), any Indebtedness (including
Acquired Indebtedness), other than Permitted Indebtedness, unless (a) after
giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the ratio of the total Indebtedness of the
Company and its Restricted Subsidiaries (excluding any Indebtedness owed to a
Restricted Subsidiary by any other Restricted Subsidiary or the Company and any
Indebtedness owed to the Company by any Restricted Subsidiary) to the Company's
Consolidated EBITDA (determined on a pro forma basis for the last four fiscal
quarters of the Company for which financial statements are available at the date
of determination) is less than (i) 6.5 to 1 if the Indebtedness is incurred
prior to December 15, 1999 and (ii) 6.0 to 1 if the Indebtedness is incurred on
or after December 15, 1999, and (b) no Default or Event of Default shall have
occurred and be continuing at the time of the incurrences of such Indebtedness
(the "Incurrence Date") or as a consequence of the incurrence of such
Indebtedness.
57
In determining the ratio of total Indebtedness to Consolidated
EBITDA for purposes of the immediately preceding sentence, (a) if the
Indebtedness which is the subject of a determination under this provision is
Acquired Indebtedness, or Indebtedness incurred in connection with the
simultaneous acquisition of any Person, business, property or assets, then such
ratio shall be determined by giving effect to (on a pro forma basis, as if the
transaction had occurred at the beginning of the four-quarter period) both the
incurrence or assumption of such Acquired Indebtedness or such other
Indebtedness by the Company or any Restricted Subsidiary (together with any
other Acquired Indebtedness or other Indebtedness incurred or assumed by the
Company or any Restricted Subsidiary in connection with acquisitions consummated
by the Company or any Restricted Subsidiary during such four-quarter period) and
the inclusion in the Company's Consolidated EBITDA of the Consolidated EBITDA of
the acquired Person, business, property or assets and any pro forma expense and
cost reductions calculated on a basis consistent with Regulation S-X under the
Securities Act as in effect and as applied as of the Issue Date (together with
the Consolidated EBITDA of, and pro forma expense and cost reductions relating
to, any other Person, business, property or assets acquired or disposed of by
the Company or any Restricted Subsidiary during such four-quarter period) and
(b) if since the end of such four-quarter period any Indebtedness of the Company
or any Restricted Subsidiary has been repaid, repurchased, defeased or otherwise
discharged (other than Indebtedness under a revolving credit or similar
arrangement unless such revolving credit Indebtedness has been permanently
repaid and has not been replaced), Indebtedness as of the end of such
four-quarter period shall be calculated after giving effect on a pro forma basis
as if such Indebtedness had been repaid, repurchased, defeased or otherwise
discharged as of the beginning of such four-quarter period.
Indebtedness of any Person which is outstanding at the time
such Person becomes a Restricted Subsidiary of the Company (including upon
designation of any subsidiary or other Person as a Restricted Subsidiary) or is
merged with or into or consolidated with the Company or a Restricted Subsidiary
of the Company shall be deemed to have been incurred at the time such Person
becomes such a Restricted Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Restricted Subsidiary of the Company, as
applicable.
SECTION 4.11 LIMITATION ON LIENS SECURING INDEBTEDNESS
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien of any kind, other than Permitted Liens, upon any of their respective
assets, now owned or acquired on or after the date of this Indenture, or upon
any income or profits therefrom unless the Company provides, and causes its
Restricted Subsidiaries to provide, concurrently therewith, that the Notes are
equally and ratably so secured, provided that, if such
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Indebtedness is Subordinated Indebtedness, the Lien securing such Subordinated
Indebtedness shall be expressly subordinate and junior to the Lien securing the
Notes.
SECTION 4.12 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, assume or suffer to exist any
consensual restriction on the ability of any Restricted Subsidiary to pay
dividends or make other distributions to or on behalf of, or to pay any
obligation to or on behalf of, or otherwise to transfer assets or property to or
on behalf of, or make or pay loans or advances to or on behalf of, the Company
or any Restricted Subsidiary, except (a) restrictions imposed by the Notes or
this Indenture, (b) restrictions imposed by other Indebtedness of the Company
(which may also be guaranteed by the Guarantors) ranking pari passu with the
Notes or the Guarantees, as applicable, provided such restrictions are no more
restrictive than those imposed by this Indenture and the Notes, (c) restrictions
imposed by applicable law, (d) existing restrictions under Indebtedness
outstanding on the Issue Date, (e) restrictions pursuant to a Credit Agreement
or any amendment thereto, or any Refinancing Indebtedness in respect thereof
(provided any restrictions or requirements of any such amendment or Refinancing
Indebtedness are no more restrictive than those imposed by such Credit Agreement
as of the first date after the Issue Date that such Credit Agreement is in
place), (f) restrictions under any Acquired Indebtedness not incurred in
violation of this Indenture or any agreement relating to any Person, property,
asset, or business acquired by the Company or any Restricted Subsidiary, which
restrictions in each case existed at the time of acquisition, were not put in
place in connection with or in anticipation of such acquisition and are not
applicable to any Person, property, asset or business other than the Person,
property, asset or business acquired, (g) restrictions solely with respect to a
Restricted Subsidiary of the Company imposed pursuant to a binding agreement
which has been entered into for the sale or disposition of all or substantially
all of the Equity Interests or assets of such Restricted Subsidiary, provided
such restrictions apply solely to the Equity Interests or assets of such
Restricted Subsidiary which are being sold, (h) restrictions on transfer
contained in Purchase Money Indebtedness incurred pursuant to paragraph (f) of
the definition of "Permitted Indebtedness" provided such restrictions relate
only to the transfer of the property acquired with the proceeds or otherwise
secured by such Purchase Money Indebtedness, and (i) in connection with and
pursuant to permitted Refinancings, replacements or restrictions imposed
pursuant to clauses (a), (b), (d), (e), (f) or (h) of this Section 4.12 that are
not more restrictive than those being replaced and do not apply to any other
person or assets than those that would have been covered by the restrictions in
the Indebtedness so refinanced. Notwithstanding the foregoing, neither (a)
customary provisions restricting subletting or assignment of any lease or other
contract entered into in the ordinary course of business, consistent with
industry practice, nor (b) Liens
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permitted under the terms of this Indenture on assets securing indebtedness
under a Credit Agreement or Purchase Money Indebtedness incurred in accordance
with Section 4.10 hereof shall in and of themselves be considered a restriction
on the ability of the applicable Restricted Subsidiary to transfer such
agreement or assets, as the case may be.
SECTION 4.13 LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Company shall not and shall not permit any of its
Restricted Subsidiaries on or after the Issue Date to enter into or suffer to
exist any contract, agreement, arrangement or transaction with any Affiliate (an
"Affiliate Transaction"), or any series of related Affiliate Transactions (other
than Exempted Affiliate Transactions), (a) unless it is determined that the
terms of such Affiliate Transaction are fair and reasonable to the Company, and
no less favorable to the Company than could have been obtained in an arm's
length transaction with a non-Affiliate, (b) if involving consideration to
either party in excess of $1.0 million, unless such Affiliate Transaction(s) is
evidenced by an Officers' Certificate addressed and delivered to the Trustee
certifying that such Affiliate Transaction (or Transactions) has been approved
by a resolution of the Board of Directors and (c) if involving consideration to
either party in excess of $5.0 million, unless in addition the Company, prior to
the consummation thereof, obtains a written favorable opinion as to the fairness
of such transaction to the Company from a financial point of view from a Third
Party Evaluator.
SECTION 4.14 FUTURE GUARANTORS
All Subsidiaries of the Company (other than Unrestricted
Subsidiaries) substantially all of whose assets are located in the United States
or that conduct substantially all of their business in the United States shall
be Guarantors. In addition, the Company will not, and will not permit any
Restricted Subsidiary to, make any Investment in any Subsidiary that is not a
Guarantor, unless either (i) such Investment is permitted by Section 4.09 or
(ii) such Subsidiary executes a Subsidiary Guarantee substantially in the form
of Exhibit J hereto and delivers an opinion of counsel in accordance with the
provisions of this Indenture. Notwithstanding anything herein or in this
Indenture to the contrary, if any Subsidiary of this Company that is not a
Guarantor guarantees any other Indebtedness of the Company or any Subsidiary of
the Company that is a Guarantor, or the Company or a Subsidiary of the Company
pledges more than 65% of the capital stock of such Subsidiary to a United States
lender, then such Subsidiary must become a Guarantor.
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SECTION 4.15 LIMITATION ON LINES OF BUSINESS
Neither the Company nor any Restricted Subsidiary shall
directly or indirectly engage to any substantial extent in any line or lines of
business activity other than that which, in the reasonable good faith judgment
of the Board of Directors of the Company, is a Related Business.
SECTION 4.16 CORPORATE EXISTENCE
Subject to Section 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, 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 Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
SECTION 4.17 LIMITATION ON STATUS AS INVESTMENT COMPANY
The Company and its Subsidiaries shall not take any action or
conduct their business and operations in such a way as would cause them to be
required to register as an "investment company" (as that term is defined in the
Investment Company Act of 1940, as amended), or would otherwise cause them to
become subject to regulation under the Investment Company Act.
SECTION 4.18 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary, provided, that (a) no
Default or Event of Default is existing or will occur as a consequence thereof,
(b) immediately after giving effect to such designation, on a pro forma basis,
the Company could incur at least $1.00 of additional Indebtedness pursuant to
clause (a) of the first paragraph of Section 4.10 hereof and (c) the amount of
the Investment in such Unrestricted Subsidiary (as determined pursuant to the
definition of "Investment" above) is permitted to be made under Section 4.09
hereof. Each such designation shall be evidenced by filing with the Trustee a
certified copy of the resolution giving effect to such designation and an
Officers' Certificate
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certifying that such designation complied with the foregoing conditions. If, at
any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted nor incurred
as of such date under Section 4.10 hereof, the Company shall be in default of
such Section 4.10). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (a) such
Indebtedness is permitted under Section 4.10 hereof and (b) no Default or Event
of Default would be in existence following such designation.
SECTION 4.19 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
3 (three) business days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
Article V
SUCCESSORS
SECTION 5.01 MERGER, SALE OR CONSOLIDATION
The Company will not in a single transaction or series of
related transactions consolidate with or merge with or into (whether or not the
Company is the surviving corporation) another person or, directly or indirectly,
sell, lease, convey or transfer all or substantially all of its assets (computed
on a consolidated basis), to another Person or group of Affiliated Persons or
adopt a plan of liquidation, unless (a) either (i) the Company is the continuing
entity or (ii) the resulting, surviving or transferee entity or, in the case of
a plan of liquidation, the entity which receives the greatest value from such
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plan of liquidation, is a corporation organized under the laws of the United
States, any state thereof or the District of Columbia and expressly assumes by
supplemental indenture all of the obligations of the Company in connection with
the Notes and this Indenture; (b) no Default or Event of Default shall exist or
shall occur immediately after giving effect on a pro forma basis to such
transaction; (c) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the consolidated surviving or
transferee entity or, in the case of a plan of liquidation, the entity which
receives the greatest value from such plan of liquidation, is at least equal to
the Consolidated Net Worth of the Company immediately prior to such transaction;
and (d) unless such transaction is solely the merger of the Company and one of
its previously existing Wholly Owned Restricted Subsidiaries which is also a
Guarantor and which transaction is not in connection with any other transaction
immediately after giving effect to such transaction on a pro forma basis, the
consolidated resulting, surviving or transferee entity or, in the case of a plan
of liquidation, the entity which receives the greatest value from such plan of
liquidation, would immediately thereafter be permitted to incur at least $1.00
of additional Indebtedness pursuant to clause (a) of the first paragraph of
Section 4.10 hereof.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or consummation of a plan of
liquidation in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made or, in the case of a plan of liquidation, the entity which
receives the greatest value from such plan of liquidation shall succeed to and
(except in the case of a lease) be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named therein as the Company, and (except in the
case of a lease) the Company shall be released from the obligations under the
Notes and this Indenture except with respect to any obligations that arise from,
or are related to, such transaction.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Restricted Subsidiaries, the Company's interest in which
constitutes all or substantially all of the properties and assets of the Company
shall be deemed to be the transfer of all or substantially all of the properties
and assets of the Company.
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Article VI
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
An "Event of Default" means:
(1) failure to pay any installment of interest (or Liquidated
Damages, if any) on the Notes as and when the same becomes due and
payable and the continuance of any such failure for 30 days;
(2) failure to pay all or any part of the principal, or
premium, if any, on the Notes when and as the same becomes due and
payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control
Purchase Price or the Asset Sale Offer Price, or otherwise;
(3) the failure by either of the Company or any Restricted
Subsidiary to observe or perform any other covenant or agreement
contained in the Notes or this Indenture and the continuance of such
failure for a period of 45 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes outstanding
specifying the default and demanding that same be remedied;
(4) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law: commences a
voluntary case; consents to the entry of an order for relief against it
in an involuntary case; consents to the appointment of a Custodian of
it or for all or substantially all of its property; makes a general
assignment for the benefit of its creditors; or generally is not paying
its debts as they become due; or, a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that is for relief
against the Company or any Significant Subsidiary in an involuntary
case, appoints a Custodian of the Company or any Significant Subsidiary
or for all or substantially all of the property of the Company or any
Significant Subsidiary, or orders the liquidation of the Company or any
Significant Subsidiary and the order or decree remains unstayed and in
effect for 60 consecutive days;
(5) a default in Indebtedness of the Company or any of its
Restricted Subsidiaries with an aggregate principal amount in excess of
$5.0 million (i) resulting from the failure to pay principal at final
maturity or (ii) as a result of
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which the maturity of such Indebtedness has been accelerated prior to
its stated maturity; and
(6) final unsatisfied judgments not covered by insurance
aggregating in excess of $5.0 million, at any one time rendered against
the Company or any of its Significant Subsidiaries and not stayed,
bonded or discharged within 60 days.
SECTION 6.02 ACCELERATION
If an Event of Default occurs and is continuing (other than an
Event of Default specified in clause (4) of Section 6.01), then in every such
case, unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, by notice in writing to the
Company (and to the Trustee if given by Holders) (an "Acceleration Notice"), may
declare all principal, determined as set forth below, premium, if any, and
accrued and unpaid interest (and Liquidated Damages, if any) thereon to be due
and payable immediately. If an Event of Default specified in clause (4) above
occurs with respect to the Company or any Significant Subsidiary, all principal
of, premium, if any, and accrued and unpaid interest (and Liquidated Damages, if
any) on all the outstanding Notes will be immediately due and payable without
any declaration or other act on the part of Trustee or the Holders. The Holders
of a majority in aggregate principal amount of the then outstanding Notes are
authorized to rescind any such acceleration by written notice to the Trustee if
all existing Events of Default (other than (a) the non-payment of the principal
of, premium, if any, and accrued and unpaid interest and Liquidated Damages, if
any, on the Notes which have become due solely by such acceleration, (b) with
respect to defaults with respect to any provision requiring a supermajority
approval to amend, which default may only be waived by such a supermajority and
(c) with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Note affected)
have been cured or waived as provided in this Indenture.
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, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event
65
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 not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium and Liquidated Damages, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in liability.
SECTION 6.06 LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
66
(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 aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the respective
due dates expressed in the Note (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.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01 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, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes 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 Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making
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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 Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Section, 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, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any and
interest, respectively; and
Third: 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 Notes 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,
68
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a
suit by Holders of more than 10% in principal amount of the then outstanding
Notes.
Article VII
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise 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 Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture 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; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
69
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 6.05 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.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request, order or direction of any of the Holders unless such
Holders shall have offered to the Trustee reasonable security or indemnity
satisfactory to it against any loss, liability or expense that might be incurred
by the Trustee in compliance with such request, order 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.
SECTION 7.02 RIGHTS OF TRUSTEE
(a) The Trustee may conclusively rely upon any document, whether in its
original or facsimile form, 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 any such document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice or opinion of such counsel with respect
to legal matters relating in any way to this Indenture and the Notes 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
accordance with the advice or opinion of such counsel.
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(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 provided, however, that the Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(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) Except with respect to Section 4.01 herein, the Trustee shall have
no duty to inquire as to the performance of the Company's covenants in Section 4
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.01(1), 6.01(2) and 4.01 or (ii) any Default or Event of Default of
which a Responsible Officer of the Trustee shall have received written
notification at the Corporate Trust office of the Trustee and such notice
references the Notes and this Indenture or obtained actual knowledge.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes 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, the Trustee must comply with Sections 7.10 and 7.11 of this
Indenture. In addition, if the Trustee has any conflicting interest within the
meaning of Section 3.10 of the TIA it must eliminate such conflict within 90
days, or resign. Any Agent may do the same with like rights and duties.
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 Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes 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 Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
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SECTION 7.05 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and
if it is actually known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Holder of Notes 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 of principal of, premium, if any, or interest on any Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
As promptly as practicable after each May 15 beginning with
the May 15 following the date of the Indenture and for so long as the Notes
remain outstanding, and in any event prior to July 15 in each year, the Trustee
shall mail to the Holders of the Notes 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)(2). 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 Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee whenever the Notes become
listed on any stock exchange or delisted therefrom.
SECTION 7.07 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee such reasonable
compensation, as the Company and the Trustee shall from time to time agree in
writing, for its acceptance of this Indenture and its performance of services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. Except as otherwise provided
herein, in addition to compensating the Trustee for its services, the Company
shall reimburse the Trustee promptly upon request for all reasonable
out-of-pocket expenses incurred or made by it in accordance with any provision
of this Indenture (except any such expenses as may be attributable to the
Trustee's negligence or bad faith). Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
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The Company shall indemnify each of the Trustee and any
predecessor Trustee against any and all losses, liabilities or expenses
(including taxes other than taxes based upon the income of the Trustee) incurred
by it 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 of its selection
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee's own wilful misconduct,
negligence or bad faith. In addition, 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,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(4) hereof, 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 the Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
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.
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The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders constituting a majority in principal amount of the then outstanding
Notes 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 receiver or other 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 Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may, at the expense of the Company, 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 owning at least 10% in aggregate principal amount of the
then outstanding Notes may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee (including its agents and counsel) hereunder have been paid
and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding
replacement of
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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.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
The Trustee shall at all times satisfy the requirements and
comply with Sections 3.10(a) and (b) of the TIA. Each successor Trustee shall be
a corporation organized and doing business under the laws of the United States
of America, any state thereof or the District of Columbia that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by Federal or state authorities and that has a
combined capital and surplus of at least $50.0 million as set forth in its most
recent published annual report of condition, subject to supervision or
examination by Federal or state authority; provided, however, that if Section
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 7.10 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to and comply with TIA Section 311 to
the extent required thereby.
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Article VIII
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
Notes 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 and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes 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 Notes, 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 its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Liquidated
Damages, if any, on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Article 2 and Section 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith and (d) 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 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13 and 4.14 hereof with respect to the outstanding Notes on
and after the date the conditions set forth below
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are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company 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 Notes 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 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(5) through 6.01(7) 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 Notes:
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, cash in United States dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if
any, and interest and Liquidated Damages, if any, on the outstanding
Notes on the stated maturity or on the applicable redemption date, as
the case may be and the Company must specify whether the Notes 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 (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as
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a result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 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 Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Event of Default or Default shall have occurred and be
continuing on the date of such deposit (other than an Event of Default
or Default resulting from the incurrence of Indebtedness all or a
portion of the proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence);
(e) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any other
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 Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(g) 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 will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; and
(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, in the case of the Officer's Certificate, (a)
through (g) and, in the case of the Opinion of Counsel, clauses (a)
(with respect to the validity and perfection of the security interest),
(b), (c) and (e) of this paragraph relating to the Legal Defeasance or
the Covenant Defeasance, as applicable, have been complied with.
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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 U.S. Government
Obligations (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 Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes 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 U.S.
Government Obligations 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 Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations 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 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, premium,
if any, Liquidated Damages or interest on any Note and remaining unclaimed for
two years after such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as a secured 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 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),
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notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations 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 Company's obligations under this Indenture and the Notes
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, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
Article IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to
Section 5 hereof;
(d) to provide for additional Guarantors as set forth in Section 4.15;
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(e) to make any change that would provide any additional rights or
benefits to the Holders of the Notes (including the addition of any Subsidiary
Guarantors) or that does not adversely affect the legal rights hereunder of any
Holder of the Note; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 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 NOTES
Except as provided below in this Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture and/or the
Notes may be amended or supplemented with the consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes); provided, that no such amendment or supplement
may, without the consent of Holders of at least 66 2/3% in aggregate principal
amount of Notes at the time outstanding, modify the provisions of Section 4.07
hereof.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 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
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case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 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
becomes effective, the Company shall mail to the Holders of Notes 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 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected, an amendment or waiver may not (with respect to any Notes
held by a non-consenting Holder):
(a) reduce the aggregate principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of any Note,
extend the time for payment or alter or waive any of the provisions
with respect to the redemption of the Notes, except as provided above
with respect to Sections 4.07 and 4.08 hereof;
(c) reduce the rate of or change the time or place or manner of payment
for payment of interest, including default interest, or premium on any
Note;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration);
(e) impair the right to institute suit for the enforcement or payment
of premium or interest payable on or after the Stated Maturity of any
Note (or, in the case of redemption at the option of the Company, on or
after the Redemption Date);
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(f) reduce the Change of Control Purchase Price or the Asset Sale Offer
Price or alter the provisions regarding the right of the Company to
redeem the Notes in a manner adverse to the Holders;
(g) make any Note payable in money other than that stated in the Notes;
(h) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes; or
(i) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions of this Section 9.02.
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an 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 Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
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Failure to make the appropriate notation or issue a new Note
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 IX 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 the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officer's Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
Article X
SUBSIDIARY GUARANTEES
SECTION 10.01 SUBSIDIARY GUARANTEES
Subject to the provisions of this Article X, each Guarantor,
jointly and severally, hereby unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (a) the principal of, and premium, if any, and
interest on the Notes will be duly and punctually paid in full when due, whether
at maturity, by acceleration or otherwise, and interest on overdue principal,
and premium, if any, and (to the extent permitted by law) interest on any
interest, if any, on the Notes and all other obligations of the Company to the
Holders or the Trustee hereunder or under the Notes (including fees, expenses or
other) will be promptly paid in full or performed, all in accordance with the
terms hereof; and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or failing performance of any other
obligation of the Company to the Holders, for whatever reason, each Guarantor
will be obligated to pay, or to perform or to cause the performance of, the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Holders of Notes to accelerate the obligations of each Guarantor
hereunder in the same manner and to the same extent as the obligations of the
Company. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the
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same, any waiver or consent by any Holder of the Notes with respect to any
thereof, the entry of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor hereby waives and
relinquishes: (a) any right to require the Trustee, the Holders or the Company
(each, a "Benefitted Party") to proceed against the Company or any other Person
or to proceed against or exhaust any security held by a Benefitted Party at any
time or to pursue any other remedy in any secured party's power before
proceeding against the Guarantors; (b) any defense that may arise by reason of
the incapacity, lack of authority, death or disability of any other Person or
Persons or the failure of a Benefitted Party to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any other
Person or Persons; (c) demand, protest and notice of any kind (except as
expressly required by this Indenture), including but not limited to notice of
the existence, creation or incurring of any new or additional Indebtedness or
obligation or of any action or non-action on the part of the Guarantors, the
Company any Benefitted Party, any creditor of the Guarantors, the Company or on
the part of any other Person whomsoever in connection with any obligations the
performance of which are hereby guaranteed; (d) any defense based upon an
election of remedies by a Benefitted Party, including but not limited to an
election to proceed against the Guarantors for reimbursement; (e) any defense
based upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (f) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under the Bankruptcy Law, of the
application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense
based on any borrowing or grant of a security interest under Section 364 of the
Bankruptcy Code. The Guarantors hereby covenant that the Subsidiary Guarantees
will not be discharged except by payment in full of all principal, premium, if
any, and interest on the Notes and all other costs provided for under this
Indenture, or as provided in Section 8.01.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or the Guarantors, or any trustee or
similar official acting in relation to either the Company or the Guarantors, any
amount paid by the Company or the Guarantors to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each of the Guarantors agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article VI
hereof for the purposes hereof, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article VI hereof, such obligations (whether
85
or not due and payable) shall forthwith become due and payable by such Guarantor
for the purpose of the Subsidiary Guarantees.
SECTION 10.02 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
To evidence the Subsidiary Guarantees set forth in Section
10.01 hereof, each of the Guarantors agrees that a notation of the Subsidiary
Guarantees substantially in the form included in Exhibit J hereto shall be
endorsed on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of each of the Guarantors by the Chairman
of the Board, any Vice Chairman, the President or one of the Vice Presidents
each of of the Guarantors, under a facsimile of its seal reproduced on this
Indenture and attested to by an Officer other than the Officer executing this
Indenture.
Each of the Guarantors agree that the Subsidiary Guarantees
set forth in this Article X will remain in full force and effect and apply to
all the Notes notwithstanding any failure to endorse on each Note a notation of
the Subsidiary Guarantees.
If an Officer whose facsimile signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note on which the
Subsidiary Guarantees are endorsed, the Subsidiary Guarantees shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantees set forth in this Indenture on behalf of the Guarantors.
SECTION 10.03 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Nothing contained in this Indenture or in the Notes shall prevent
any consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent the transfer of all or substantially all of the
assets of a Guarantor to the Company or another Guarantor. Upon any such
consolidation, merger, transfer or sale, the Subsidiary Guarantee of such
Guarantor shall no longer have any force or effect.
(b) Except as set forth in Article IV, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into a corporation or corporations other than the Company or
another Guarantor (whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which such a Guarantor or its successor or
successors shall be a party or parties, or shall prevent the transfer of all or
substantially all of the assets of such a Guarantor, to a corporation other than
the Company or another Guarantor (whether or not affiliated with such Guarantor)
authorized to acquire and operate the same; provided, however, that, except as
provided
86
in Section 10.04 hereof, each such Guarantor hereby covenants and agrees that,
upon any such consolidation, merger or transfer, the Subsidiary Guarantee
endorsed on the Notes, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by such
Guarantor, shall be expressly assumed (in the event that the Guarantor is not
the surviving corporation in the merger), by a supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the corporation formed by such consolidation, or into which such Guarantor shall
have been merged, or by the corporation which shall have acquired such property.
In case of any such consolidation, merger or transfer of assets and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by such Guarantor, such successor corporation shall succeed to and be
substituted for such Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Subsidiary Guarantees to be endorsed upon all of the
Notes issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
(c) The Trustee, subject to the provisions of Section 10.04 hereof,
shall be entitled to receive an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or conveyance,
and any such assumption of Obligations, comply with the provisions of this
Section 10.03. Such certificate and opinion shall comply with the provisions of
Section 10.05.
SECTION 10.04 RELEASE OF GUARANTORS
Upon the occurrence of any of the following events:
(a) the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of all of the
Capital Stock or other Equity Interests of a
Guarantor or all of or substantially all of its
assets, in either case, to an entity which is not a
Guarantor (in compliance with the terms hereof);
(b) the designation of a Restricted Subsidiary to become
an Unrestricted Subsidiary, which transaction is
otherwise in compliance
87
with this Indenture (including, without limitation,
the provisions of Section 4.08 hereof); or
(c) the release of a Guarantor from its obligations under
any Credit Agreement by the lenders thereunder;
then such Guarantor (or, if clause (a) of this paragraph applies, the
corporation acquiring such property) shall be released from and relieved of its
obligations under its Subsidiary Guarantee or Section 10.03 hereof as the case
may be; provided that in the event of an Asset Sale, the Net Proceeds from such
sale or other disposition are treated in accordance with the provisions of
Section 4.08 hereof; and provided further that any such termination shall occur
only to the extent that all obligations of such Guarantor under all of its
guarantees of, and under all of its pledges of assets or other security
interests which secure, any indebtedness of the Company or any other Subsidiary
of the Company shall also terminate upon such release, sale or transfer.
Upon delivery by the Company to the Trustee of an Officer's
Certificate and Opinion of Counsel, and to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.08 hereof, the Trustee shall
execute any documents reasonably required in order to evidence the release of
any such Guarantor from its obligations under its Subsidiary Guarantee. Any
Guarantor not released from its obligations under its Subsidiary Guarantee shall
remain liable for the full amount of principal of and interest on the Notes and
for the other obligations of any Guarantor under this Indenture as provided in
this Article X.
SECTION 10.05 LIMITATION OF GUARANTOR'S LIABILITY
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law. To effectuate the foregoing intention, the Holders
and such Guarantor hereby irrevocably agree that the obligations of such
Guarantor under this Article X shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Section 10, result in the obligations of such Guarantor
under the Subsidiary Guarantee of such Guarantor not constituting a fraudulent
transfer or conveyance.
88
SECTION 10.06 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTOR
(a) For purposes of any provision of this Indenture which provides for
the delivery by any Guarantor of an Officers' Certificate and/or an Opinion of
Counsel, the definitions of such terms in Section 1.01 shall apply to such
Guarantor as if references therein to the Company were references to such
Guarantor.
(b) Any request, direction, order or demand which by any provision of
this Indenture is to be made by any Guarantor, shall be sufficient if evidenced
as described in Section 10.02 as if references therein to the Company were
references to such Guarantor.
(c) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Notes to or on any Guarantor may be given or served as described in Section
10.02 as if references therein to Company were references to such Guarantor.
(d) Upon any demand, request or application by any Guarantor to the
Trustee to take any action under this Indenture, such Guarantor shall furnish to
the Trustee such certificates and opinions as are required in Section 10.04
hereof as if all references therein to the Company were references to such
Guarantor.
SECTION 10.07 ADDITIONAL GUARANTORS
In the event that any Unrestricted Subsidiary of the Company
shall be designated by the Board of Directors of the Company as a Restricted
Subsidiary pursuant to Section 4.18, the Company shall cause such Restricted
Subsidiary to deliver to the Trustee a supplemental Subsidiary Guarantee, in
substantially the form of Exhibit F hereto, pursuant to which such Restricted
Subsidiary (the "Additional Guarantor") shall jointly and severally with each of
the existing Guarantors guarantee the Company's obligations under this Indenture
and the Notes (the "Additional Guarantee").
89
Article XI
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 others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000 0000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
90
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA 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.
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 NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
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:
91
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
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 past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 11.08 GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
92
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 Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 11.11 SEVERABILITY
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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.
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Sections 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.
[Signatures on following pages]
93
SIGNATURES
Dated as of December 22, 1997 AMERICAN LAWYER MEDIA, INC.
By:
-----------------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
---------------------------- (SEAL)
Name:
Title: Secretary
Dated as of December 22, 1997 ALM, LLC
By:
---------------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
---------------------------- (SEAL)
Name:
Title: Secretary
Dated as of December 22, 1997 COUNSEL CONNECT, LLC
By:
---------------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
---------------------------- (SEAL)
Name:
Title: Secretary
Dated as of December 22, 1997 ALM IP, LLC
By:
---------------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
---------------------------- (SEAL)
Name:
Title: Secretary
Dated as of December 22, 1997 ALM COUNSEL CONNECT, INC.
By:
---------------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
---------------------------- (SEAL)
Name:
Title: Secretary
Dated as of December 22, 0000 XXX XXXX XX XXX XXXX
By:
---------------------------------------
Name:
-----------------------------
Title:
----------------------------
Attest:
----------------------------
Name:
Title:
EXHIBIT A
[FORM OF FACE OF SERIES A NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND AN PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC). ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THE NOTES (OR THEIR PREDECESSORS) EVIDENCED HEREBY WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE NOTES 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 NOTES EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING
A-1
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTES EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTES MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE
UNITED STATES 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) TO A LIMITED NUMBER OF OTHER INSTITUTIONAL "ACCREDITED INVESTORS"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
("INSTITUTIONAL ACCREDITED INVESTORS"), (c) (IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (e) 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 NOTES EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
A-2
CUSIP No. [ ]/ISIN No.[ ]
9 3/4% Series A Senior Notes due 2007
No. $175,000,000
AMERICAN LAWYER MEDIA, INC., a Delaware corporation,
promises to pay to
or registered assigns,
the principal sum of
Dollars [or such other amount as is indicated on Schedule A hereof]* on December
15, 2007
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: December 22, 1997
AMERICAN LAWYER MEDIA, INC.
By:
-------------------------------------------
Name:
-------------------------------
Title:
-------------------------------
By:
-------------------------------------------
Name:
-------------------------------
Title:
-------------------------------
(SEAL)
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9 3/4% Senior
Notes referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By:
---------------------------------
Authorized Signatory
------------------------
* Applicable to Global Notes only.
A-4
(Form of Reverse of Series A Note)
AMERICAN LAWYER MEDIA, INC.
9 3/4% Senior Notes due 2007
Capitalized terms used herein shall have the meanings assigned to them
in this Indenture referred to below unless otherwise indicated.
1. Interest. American Lawyer Media, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
9 3/4% per annum from December 22, 1997 until maturity and shall pay the
Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on June 15 and December 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a Record Date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be June 15, 1998. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Liquidated Damages. The Holder of this Note is entitled to the
benefits of the Registration Rights Agreement relating to the Notes dated
December 22, 1997, between the Company, the Guarantors and the Initial
Purchasers.
The Registration Rights agreement will provide that (i) if the Company
fails to file an Exchange Offer Registration Statement (as defined in the
Registration Rights Agreement) with the SEC on or prior to the 120th day after
the Closing Date, (ii) if the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th day after the Closing
Date, (iii) the Exchange Offer (as defined in the Registration Rights Agreement)
is not consummated on or before the 30th business day after the Exchange Offer
Registration Statement is declared effective (iv) if obligated to file the Shelf
Registration Statement (as
A-5
defined in the Registration Rights Agreement) and the Company fails to file the
Shelf Registration Statement with the SEC on or prior to the 30th day after the
obligation to file arises, or (v) if obligated to file a Shelf Registration
Statement and the Shelf Registration Statement is not declared effective on or
prior to the 90th day after the obligation to file arises, or (vi) if the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, is declared effective but thereafter ceases to be effective or
useable in connection with resales of the Transfer Restricted Securities, such
time of non-effectiveness or non-useability (each, a "Registration Default"),
the Company and the Guarantors agree to pay to each Holder of Transfer
Restricted Securities affected thereby liquidated damages ("Liquidated Damages")
in an amount equal to $0.10 per week per $1,000 in principal amount of Transfer
Restricted Securities held by the Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
Liquidated Damages shall increase by an additional $0.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Liquidated Damages of $0.25 per week, per $1,000 in
principal amount of Transfer Restricted Securities. The Company and the
Guarantors shall not be required to pay Liquidated Damages for more than one
Registration Default at any given time. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages will cease.
All accrued Liquidated Damages shall be paid by the Company and the
Guarantors to the Holders entitled thereto in the same manner as interest
payments on the Notes on semi-annual damages payment dates which correspond to
interest payment dates for the Notes.
3. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, interest and
Liquidated Damages, if any, at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest,
premium and Liquidated Damages, if any, on all Global Notes and all other Notes
the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be
A-6
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.
4. Paying Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture dated as
of December 22, 1997 ("Indenture") by and among the Company, ALM, LLC, Counsel
Connect, LLC, ALM IP, LLC, ALM Counsel Connect, Inc. (collectively, the
"Guarantors") and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are unsecured obligations
of the Company limited to $175,000,000 in aggregate principal amount.
6. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) of this Section
of the Note, the Company shall not have the option to redeem the Notes prior to
December 15, 2002 except as provided below. Thereafter, the Company shall have
the option to redeem the Notes, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest (and
Liquidated Damages, if any,) thereon to the applicable redemption date if
redeemed during the twelve-month period beginning on December 15 of the years
indicated below:
Year Percentage
----- ----------
2002...................................... 104.875%
2003...................................... 103.250%
2004...................................... 101.625%
2005 and thereafter....................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section of the Note, at any time or from time to time on or prior to December
15, 2000, the Company may (but shall not have the obligation to) redeem in the
aggregate up to
A-7
35% of the aggregate principal amount of the Notes originally outstanding, at a
redemption price of 109.75% of the aggregate principal amount so redeemed,
together with accrued and unpaid interest (and Liquidated Damages, if any) to
the date of redemption out of the Net Cash Proceeds of one or more Public Equity
Offerings; provided however, that immediately following such redemption not less
than $113.8 million aggregate principal amount of the Notes remains outstanding,
and provided further, that such redemption shall occur within 90 days of the
closing of such Public Equity Offering.
(c) Notwithstanding the provisions of clause (a) of this
Section of the Note, the Notes will also be subject to redemption, at any time
prior to December 15, 2002 upon not less than 10 nor more than 20 days' notice
to each Holder of Notes redeemed, at the option of the Company, in whole or in
part, in integral multiples of $1,000 at a redemption price equal to 100% of the
principal amount thereof plus the applicable Make-Whole Premium plus accrued and
unpaid interest (and Liquidated Damages, if any) to but excluding the Redemption
Date.
7. Mandatory Redemption.
The Company shall not be required to make mandatory redemption payments
with respect to the Notes.
8. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder shall have
the right, at such Holder's option, pursuant to an offer (subject only to
conditions required by applicable law, if any) by the Company (the "Change of
Control Offer"), to require the Company to repurchase all or any part of such
Holder's Notes (provided, that the principal amount of such Notes must be $1,000
or an integral multiple thereof) on a date (the "Change of Control Purchase
Date") that is no later than 60 Business Days after the date of occurrence of
such Change of Control, at a cash price equal to 101% of the principal amount
thereof (the "Change of Control Purchase Price"), together with accrued and
unpaid interest (and Liquidated Damages, if any) to the Change of Control
Purchase Date. The Change of Control Offer shall be made within 30 Business Days
following a Change of Control by mailing a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes pursuant to the procedures required by this Indenture. The
Change of Control Offer shall remain open for at least 20 Business Days
following the mailing of such Change of Control Offer but in no event longer
than 30 Business Days, unless required by law (the "Change of Control Offer
Period"). Upon expiration of the Change of Control Offer Period, the Company
promptly shall purchase all Notes properly tendered in response to the Change of
Control Offer.
A-8
The Company shall comply with the requirements of Regulation 14E 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 Notes as a result of a Change of Control. To the extent that
the provisions of any such securities laws or regulations conflict with the
provisions of this paragraph, compliance by the Company or any of the Guarantors
with such laws and regulations shall not in and of itself cause a breach of its
obligations under such covenant.
On or before the Change of Control Purchase Date, the Company
shall, to the extent lawful (a) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (b) deposit with the
Paying Agent an amount equal to the Change of Control Purchase Price (together
with accrued and unpaid interest and Liquidated Damages, if any), of all Notes
so tendered and (c) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate listing the Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly pay the
Holders of Notes so accepted an amount equal to the Change of Control Purchase
Price (together with accrued and unpaid interest and Liquidated Damages, if
any), and the Trustee shall promptly authenticate and deliver to such Holders a
new Note equal in principal amount to any unpurchased portion of the Note
surrendered; provided that each such new Note will be in a principal amount of
$1,000 or an integral multiple thereof. Any Notes not so accepted will be
delivered promptly by the Company to the Holder thereof. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date.
If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any,
due on such Interest Payment Date) will be paid to the person in whose name a
Note is registered at the close of business on such Record Date, and such
accrued and unpaid interest (and Liquidated Damages, if applicable) will not be
payable to Holders who tender the Notes pursuant to the Change of Control Offer.
The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
A-9
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of its
property, business or assets, including by merger or consolidation (in the case
of a Restricted Subsidiary of the Company), and including any sale or other
transfer or issuance of any Capital Stock of any Restricted Subsidiary, whether
by the Company or a Restricted Subsidiary of either or through the issuance,
sale or transfer of Capital Stock by a Restricted Subsidiary, and including any
sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(i) within 270 days after the date of such Asset Sale, the Net
Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to
the optional redemption of the Notes in accordance with the terms of
this Indenture or any other Indebtedness of the Company ranking on a
parity with the Notes from time to time outstanding with similar
provisions requiring the Company to make an offer to purchase or to
redeem such Indebtedness with the proceeds of asset sales, pro rata in
proportion to the respective principal amounts (or accreted values in
the case of Indebtedness issued with an original issue discount) of the
Notes and such other Indebtedness then outstanding, or to the
repurchase of the Notes and such other Indebtedness pursuant to a cash
offer (subject only to conditions required by applicable law, if any)
(pro rata in proportion to the respective principal amounts (or
accreted values in the case of Indebtedness issued with an original
issue discount) of the Notes and such other Indebtedness then
outstanding) (the "Asset Sale Offer") at a purchase price of 100% of
principal amount (or accreted value in the case of Indebtedness issued
with an original issue discount) (the "Asset Sale Offer Price")
together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment, or (ii) within 270 days following such
Asset Sale, the Asset Sale Offer Amount is (A) invested (or committed,
pursuant to a binding commitment subject only to reasonable, customary
closing conditions, to be invested, and in fact is so invested, within
an additional 90 days) in a Person, business, assets or property which
in the good faith reasonable judgment of the Board of Directors will
constitute or be a part of a Related Business of the Company or such
Restricted Subsidiary (if it continues to be a Subsidiary) immediately
following such transaction or (B) used to retire or repay Indebtedness
of the Company and/or any Restricted Subsidiary that ranks senior to or
pari passu with the Notes and/or the Guarantees or to permanently
reduce the amount of such Indebtedness (provided that, in the case of a
revolving credit arrangement or similar arrangement that makes credit
available, such commitment is permanently reduced by such amount).
A-10
(ii) with respect to any Asset Sale or related series of Asset
Sales involving securities, property or assets with an aggregate
Determined Fair Market Value in excess of $500,000, at least 75% of the
consideration for such Asset Sale or series of related Asset Sales
consists of (x) cash or Cash Equivalents or (y) property or services
usable by the Company or any Restricted Subsidiary in the ordinary
course of conduct of a Related Business; provided, that if the
Determined Fair Market Value of property or assets of the kind
specified in this subclause (y) exceeds $5.0 million, then the
Determined Fair Market Value thereof shall be determined by a Third
Party Evaluator; and provided, further, that the principal amount of
the following shall be deemed to be cash for purposes of this clause
(b): (i) any Indebtedness (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the
Company or any Restricted Subsidiary that is assumed or forgiven by the
transferee of any such assets and (ii) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 30 days of the closing of such
Asset Sale (but in the case of this subclause (ii), only to the extent
of the cash received),
(c) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a pro forma
basis, to, such Asset Sale, and
(d) the Board of Directors of the Company determines in good faith that
the Company or such Restricted Subsidiary, as applicable, receives at least
Determined Fair Market Value for such Asset Sale.
An acquisition of Notes pursuant to an Asset Sale Offer may be
deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to
the uses set forth above (the "Excess Proceeds") exceeds $5.0 million and that
each Asset Sale Offer shall remain open for 20 Business Days following its
commencement but in no event longer than 30 Business Days, except to the extent
that a longer period is required by applicable law (the "Asset Sale Offer
Period"). Not later than five Business Days after the termination of the Asset
Sale Offer Period (the "Asset Sale Purchase Date") the Company shall apply the
Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Notes or any other
Indebtedness properly tendered (on a pro rata basis if the Asset Sale Offer
Amount is insufficient to purchase all Notes and any other Indebtedness so
tendered) at the Asset Sale Offer Price (together with accrued and unpaid
interest and Liquidated Damages, if any). Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
A-11
If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the person in whose name a Note is registered at the close of business on such
Record Date, and such interest (or Liquidated Damages, if applicable) will not
be payable to Holders who tender Notes pursuant to such Asset Sale Offer.
Upon the commencement of an Asset Sale 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 Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
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 Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes (including the
addition of any Guarantors) or that does not adversely affect the legal rights
under the Indenture of any such
A-12
Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act.
12. Defaults. An "Event of Default" means: (1) failure to pay any
installment of interest (or Liquidated Damages, if any) on the Notes as and when
the same becomes due and payable and the continuance of any such failure for 30
days; (2) failure to pay all or any part of the principal, or premium, if any,
on the Notes when and as the same becomes due and payable at maturity,
redemption, by acceleration or otherwise, including, without limitation, payment
of the Change of Control Purchase Price or the Asset Sale Offer Price, or
otherwise; (3) the failure by either of the Company or any Restricted Subsidiary
to observe or perform any other covenant or agreement contained in the Notes or
this Indenture and the continuance of such failure for a period of 45 days after
written notice is given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Notes outstanding specifying the default and demanding that same be remedied;
(4) the Company or any of its Significant Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law commences a voluntary case; consents to the entry
of an order for relief against it in an involuntary case; consents to the
appointment of a Custodian of it or for all or substantially all of its
property; makes a general assignment for the benefit of its creditors; or
generally is not paying its debts as they become due; or, a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that is for
relief against the Company or any Restricted Subsidiary in an involuntary case,
appoints a Custodian of the Company or any Significant Subsidiary or for all or
substantially all of the property of the Company or any Significant Subsidiary,
or orders the liquidation of the Company or any Significant Subsidiary and the
order or decree remains unstayed and in effect for 60 consecutive days; (5) a
default in Indebtedness of the Company or any of its Restricted Subsidiaries
with an aggregate principal amount in excess of $5.0 million (i) resulting from
the failure to pay principal at final maturity or (ii) as a result of which the
maturity of such Indebtedness has been accelerated prior to its stated maturity;
and (6) final unsatisfied judgments not covered by insurance aggregating in
excess of $5.0 million, at any one time rendered against the Company or any of
its Significant Subsidiaries and not stayed, bonded or discharged within 60
days.
An Event of Default shall not be deemed to have occurred under clause
(3), (5) or (6) until the Trustee shall have received written notice from the
Company or any of the Holders or unless a Responsible Officer shall have
knowledge of such Event of Default.
13. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, engage in certain transactions with Affiliates, incur additional
indebtedness and
A-13
make payments in respect of Equity Interests. The limitations are subject to a
number of important qualifications and limitations.
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. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
16. Authentication. This Note 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).
The Company will 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:
American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000 0000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
A-14
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's Social Security or tax I.D. No.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Your Signature:
-----------------------------------
(Sign exactly as your name appears on the face of this Note)
Date:
----------------------------
By:
----------------------------------
Notice: To be executed by an executive officer
Signature Guarantee:*
-----------------------
----------------------
* Signature must be guaranteed.
A-15
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Notes are being transferred
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) / / pursuant to and in compliance with Regulation S under
the Securities Act of 1933; or
(4) / / to an institutional "accredited investor" (as defined
in Schedule 501(a)(1), (2), (3) or (7) under the Securities
Act of 1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(5) / / pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the
name of any person other than the registered holder thereof,
provided, however, that if box (3), (4) or (5) is checked, the
Trustee may require, prior to registering any such transfer of
the Notes such legal opinions, certifications and other
information as the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
----------------------------
Signature
Signature Guarantee *
---------------------- ----------------------------
Signature must be guaranteed Signature
---------------------
* Signature must be guaranteed.
A-16
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it (a) is
purchasing this Discount Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, (b) is aware that the sale to it is being made in
reliance on Rule 144A, (c) acknowledges (i) it has been afforded an opportunity
to request from Holdings and to review, and has received, all additional
information considered by such person to be necessary to verify the accuracy of
or to supplement the information in the Offering Memorandum it has not relied on
the Initial Purchasers or any person affiliated with the Initial Purchasers in
connection with its investigation of the accuracy of such information or its
investment decision, and (iii) no person has been authorized to give information
or to make any representation concerning Holdings or the Discount Notes other
than as contained in the Offering Memorandum and information given by officers
and employees of Holdings in connection with such person's examination of
Holdings and the terms of the Offering and, if given or made, such other
representation should not be relied upon as having been authorized by Holdings
or the Initial Purchasers and (d) is aware that the transferor is relying upon
the undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
--------------------------
NOTICE: To be executed by an executive officer
-------------------------
A-17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.07 or 4.08 of the Indenture, check the box below:
|_| Section 4.07 |_| Section 4.08
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.07 or Section 4.08 of the Indenture, state the
amount you elect to have purchased: $_______
Date: Your Signature:
----------------- --------------------------------
(Sign exactly as your name appears on the Note)
By:
--------------------------------
Notice: To be executed by an executive officer
Tax Identification No.:
------------------------
Signature Guarantee:*
--------------------------
-----------------------
* Signature must be guaranteed.
A-18
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT*
The following increases or decreases in the principal amount of this
Global Note have been made:
Principal Amount Signature of
Date of Exchange Amount of Amount of of this Global authorized
or Transfer decrease in increase in Note following signatory of Trustee
Principal Amount Principal Amount such decrease or or Note Custodian
of this Global of this Global increase
Note Note
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
---------------------------------
* To be attached only to Global Notes.
A-19
EXHIBIT B
[FORM OF FACE OF SERIES B NOTE]
[Global Notes Legend, if applicable]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
B-1
CUSIP No. [ ]/ISIN No. [ ]
9 3/4% Series B Senior Note due 2007
No. $
AMERICAN LAWYER MEDIA, INC., a Delaware corporation
promises to pay to
or registered assigns,
the principal sum of
Dollars [(or such other amount as is indicated on Schedule A
hereof)]* on December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: December 22, 1997
AMERICAN LAWYER MEDIA, INC.
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9 3/4% Senior
Notes referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Authorized Officer
-------------------------
* Applicable to Global Notes only
B-2
(Form of Reverse of Series B Note)
AMERICAN LAWYER MEDIA, INC.
9 3/4% Senior Notes due 2007
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. American Lawyer Media, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
9 3/4% per annum from December 22 until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on June 15 and December 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be June 15, 1998. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, interest and
Liquidated Damages, if any, at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire transfer of immediately
available funds will be required with respect to principal of
B-3
and interest, premium and Liquidated Damages, if any, on all Global Notes and
all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. 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 Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of December 22, 1997 ("Indenture") by and among the Company, ALM, LLC, Counsel
Connect, LLC, ALM IP, LLC, ALM Counsel Connect, Inc. (collectively, the
"Guarantors") and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are unsecured obligations
of the Company limited to $175,000,000 in aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) of this Section
of the Note, the Company shall not have the option to redeem the Notes prior to
December 15, 2002. Thereafter, the Company shall have the option to redeem the
Notes, in whole or in part, upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest (and Liquidated Damages, if any,)
thereon to the applicable redemption date if redeemed during the twelve-month
period beginning on December 15 of the years indicated below:
Year Percentage
----- ----------
2002...................................... 104.875%
2003...................................... 103.250%
2004...................................... 101.625%
2005 and thereafter....................... 100.000%
B-4
(b) Notwithstanding the provisions of clause (a) of this
Section of the Note, at any time or from time to time on or prior to December
15, 2000, the Company may (but shall not have the obligation to) redeem in the
aggregate up to 35% of the aggregate principal amount of the Notes originally
outstanding, at a redemption price of 109.75% of the aggregate principal amount
so redeemed, together with accrued and unpaid interest (and Liquidated Damages,
if any) to the date of redemption out of the Net Cash Proceeds of one or more
Public Equity Offerings; provided however, that immediately following such
redemption not less than $113.8 million aggregate principal amount of the Notes
remains outstanding, and provided further, that such redemption shall occur
within 90 days of the closing of such Public Equity Offering.
(c) Notwithstanding the provisions of clause (a) of this
Section of the Note, the Notes will also be subject to redemption at any time
prior to December 15, 2002 upon not less than 10 nor more than 20 days' notice
to each Holder of Notes redeemed, at the option of the Company, in whole or in
part, in integral multiples of $1,000, at a redemption price equal to 100% of
the principal amount thereof plus the applicable Make-Whole Premium at the time
plus accrued and unpaid interest (and Liquidated Damages, if any) to but
excluding the Redemption Date.
6. Mandatory Redemption.
The Company shall not be required to make mandatory redemption payments
with respect to the Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right, at such Holder's option, pursuant to an offer (subject
only to conditions required by applicable law, if any) by the Company (the
"Change of Control Offer"), to require the Company to repurchase all or any part
of such Holder's Notes (provided, that the principal amount of such Notes must
be $1,000 or an integral multiple thereof) on a date (the "Change of Control
Purchase Date") that is no later than 60 Business Days after the date of
occurrence of such Change of Control, at a cash price equal to 101% of the
principal amount thereof (the "Change of Control Purchase Price"), together with
accrued and unpaid interest (and Liquidated Damages, if any) to the Change of
Control Purchase Date. The Change of Control Offer shall be made within 30
Business Days following a Change of Control by mailing a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes pursuant to the procedures required by this
Indenture. The Change of Control Offer shall remain open for at least 20
Business Days following the
B-5
mailing of such Change of Control Offer but in no event longer than 30 Business
Days, unless required by law (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company promptly shall
purchase all Notes properly tendered in response to the Change of Control Offer.
The Company shall comply with the requirements of Regulation 14E 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 Notes as a result of a Change of Control. To the extent that
the provisions of any such securities laws or regulations conflict with the
provisions of this paragraph, compliance by the Company or any of the Guarantors
with such laws and regulations shall not in and of itself cause a breach of its
obligations under such covenant.
On or before the Change of Control Purchase Date, the Company
shall, to the extent lawful (a) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (b) deposit with the
Paying Agent an amount equal to the Change of Control Purchase Price (together
with accrued and unpaid interest and Liquidated Damages, if any), of all Notes
so tendered and (c) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate listing the Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly pay the
Holders of Notes so accepted an amount equal to the Change of Control Purchase
Price (together with accrued and unpaid interest and Liquidated Damages, if
any), and the Trustee shall promptly authenticate and deliver to such Holders a
new Note equal in principal amount to any unpurchased portion of the Note
surrendered; provided that each such new Note will be in a principal amount of
$1,000 or an integral multiple thereof. Any Notes not so accepted will be
delivered promptly by the Company to the Holder thereof. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date.
Prior to the commencement of a Change of Control Offer, but in
any event within 30 days following any Change of Control, the Company will(a)(i)
repay in full and terminate all commitments under Indebtedness under the Credit
Agreement, pro rata in accordance with the principal amounts then outstanding
under the Notes and the Credit Agreement, respectively, or (ii) offer to repay
in full and terminate all commitments under all Indebtedness under the Credit
Agreement and repay the Indebtedness owed to each lender which has accepted such
offer in full, pro rata in accordance with the principal amounts then
outstanding under the Notes and the Credit Agreement, respectively, or (b)
obtain the requisite consents under the Credit Agreement and all such other
Senior Debt to permit the repurchase of the Notes as provided herein. The
Company's failure
B-6
to comply with the preceding sentence shall constitute an Event of Default
described in clause (c) and not in clause (b) under Section 6.01 of the
Indenture.
If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any,
due on such Interest Payment Date) will be paid to the person in whose name a
Note is registered at the close of business on such Record Date, and such
accrued and unpaid interest (and Liquidated Damages, if applicable) will not be
payable to Holders who tender the Notes pursuant to the Change of Control Offer.
The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of its
property, business or assets, including by merger or consolidation (in the case
of a Restricted Subsidiary of the Company), and including any sale or other
transfer or issuance of any Capital Stock of any Restricted Subsidiary, whether
by the Company or a Restricted Subsidiary of either or through the issuance,
sale or transfer of Capital Stock by a Restricted Subsidiary, and including any
sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(i) within 270 days after the date of such Asset Sale, the Net
Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to
the optional redemption of the Notes in accordance with the terms of
this Indenture or any other Indebtedness of the Company ranking on a
parity with the Notes from time to time outstanding with similar
provisions requiring the Company to make an offer to purchase or to
redeem such Indebtedness with the proceeds of asset sales, pro rata in
proportion to the respective principal amounts (or accreted values in
the case of Indebtedness issued with an original issue discount) of the
Notes and such other Indebtedness then outstanding, or to the
repurchase of the Notes and such other Indebtedness pursuant to a cash
offer (subject only to conditions required by applicable law, if any)
(pro rata in proportion to the respective principal amounts (or
accreted values in the case of Indebtedness issued with an original
issue discount) of the Notes and such other Indebtedness then
outstanding) (the "Asset Sale Offer") at a purchase price of 100% of
B-7
principal amount (or accreted value in the case of Indebtedness issued
with an original issue discount) (the "Asset Sale Offer Price")
together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment, or (ii) within 270 days following such
Asset Sale, the Asset Sale Offer Amount is (A) invested (or committed,
pursuant to a binding commitment subject only to reasonable, customary
closing conditions, to be invested, and in fact is so invested, within
an additional 90 days) in a Person, business, assets or property which
in the good faith reasonable judgment of the Board of Directors will
constitute or be a part of a Related Business of the Company or such
Restricted Subsidiary (if it continues to be a Subsidiary) immediately
following such transaction or (B) used to retire or repay Indebtedness
of the Company and/or any Restricted Subsidiary that ranks senior to or
pari passu with the Notes and/or the Guarantees or to permanently
reduce the amount of such Indebtedness (provided that, in the case of a
revolving credit arrangement or similar arrangement that makes credit
available, such commitment is permanently reduced by such amount).
(ii) with respect to any Asset Sale or related series of Asset
Sales involving securities, property or assets with an aggregate
Determined Fair Market Value in excess of $500,000, at least 75% of the
consideration for such Asset Sale or series of related Asset Sales
consists of (x) cash or Cash Equivalents or (y) property or services
usable by the Company or any Restricted Subsidiary in the ordinary
course of conduct of a Related Business; provided, that if the
Determined Fair Market Value of property or assets of the kind
specified in this subclause (y) exceeds $5.0 million, then the
Determined Fair Market Value thereof shall be determined by a Third
Party Evaluator; and provided, further, that the principal amount of
the following shall be deemed to be cash for purposes of this clause
(b): (i) any Indebtedness (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the
Company or any Restricted Subsidiary that is assumed or forgiven by the
transferee of any such assets and (ii) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 30 days of the closing of such
Asset Sale (but in the case of this subclause (ii), only to the extent
of the cash received),
(c) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a pro forma
basis, to, such Asset Sale, and
B-8
(d) the Board of Directors of the Company determines in good
faith that the Company or such Restricted Subsidiary, as applicable, receives at
least Determined Fair Market Value for such Asset Sale.
An acquisition of Notes pursuant to an Asset Sale Offer may be
deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to
the uses set forth above (the "Excess Proceeds") exceeds $5.0 million and that
each Asset Sale Offer shall remain open for 20 Business Days following its
commencement but in no event longer than 30 Business Days, except to the extent
that a longer period is required by applicable law (the "Asset Sale Offer
Period"). Not later than five Business Days after the termination of the Asset
Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall apply the
Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Notes or any other
Indebtedness properly tendered (on a pro rata basis if the Asset Sale Offer
Amount is insufficient to purchase all Notes and any other Indebtedness so
tendered) at the Asset Sale Offer Price (together with accrued and unpaid
interest and Liquidated Damages, if any). Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the person in whose name a Note is registered at the close of business on such
Record Date, and such interest (or Liquidated Damages, if applicable) will not
be payable to Holders who tender Notes pursuant to such Asset Sale Offer.
Upon the commencement of an Asset Sale 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 Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
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 Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
B-9
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes (including the
addition of any Guarantors) or that does not adversely affect the legal rights
under the Indenture of any such Holder, or to comply with the requirements of
the SEC in order to effect or maintain the qualification of the Indenture under
the Trust Indenture Act.
11. Defaults. An "Event of Default" means: (1) failure to pay any
installment of interest (or Liquidated Damages, if any) on the Notes as and when
the same becomes due and payable and the continuance of any such failure for 30
days; (2) failure to pay all or any part of the principal, or premium, if any,
on the Notes when and as the same becomes due and payable at maturity,
redemption, by acceleration or otherwise, including, without limitation, payment
of the Change of Control Purchase Price or the Asset Sale Offer Price, or
otherwise; (3) the failure by either of the Company or any Restricted Subsidiary
to observe or perform any other covenant or agreement contained in the Notes or
this Indenture and the continuance of such failure for a period of 45 days after
written notice is given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Notes outstanding specifying the default and demanding that same be remedied;
(4) the Company or any of its Significant Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law commences a voluntary case; consents to the entry
of an order for relief against it in an involuntary case; consents to the
appointment of a Custodian of it or for all or substantially all of its
property; makes a general assignment for the benefit of its creditors; or
generally is not paying its debts as they become due; or, a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that is for
relief against the Company or any Restricted Subsidiary in an involuntary
B-10
case, appoints a Custodian of the Company or any Significant Subsidiary or for
all or substantially all of the property of the Company or any Significant
Subsidiary, or orders the liquidation of the Company or any Significant
Subsidiary and the order or decree remains unstayed and in effect for 60
consecutive days; (5) a default in Indebtedness of the Company or any of its
Restricted Subsidiaries with an aggregate principal amount in excess of $5.0
million (i) resulting from the failure to pay principal at final maturity or
(ii) as a result of which the maturity of such Indebtedness has been accelerated
prior to its stated maturity; and (6) final unsatisfied judgments not covered by
insurance aggregating in excess of $5.0 million, at any one time rendered
against the Company or any of its Significant Subsidiaries and not stayed,
bonded or discharged within 60 days.
An Event of Default shall not be deemed to have occurred under clause
(3), (5) or (6) until the Trustee shall have received written notice from the
Company or any of the Holders or unless a Responsible Officer shall have
knowledge of such Event of Default.
12. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company, and its Restricted Subsidiaries to, among other
things, engage in certain transactions with Affiliates, incur additional
indebtedness and make payments in respect of Equity Interests. The limitations
are subject to a number of important qualifications and limitations.
13. 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.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
B-11
The Company will 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:
American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000 0000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
B-12
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's Social Security or tax I.D. No.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Your Signature:
----------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Date:
---------------------------
By:
--------------------------------------------------
Notice: To be executed by an executive officer
Signature Guarantee:*
------------------------------------
-----------------------
* Signature must be guaranteed.
B-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.07 or 4.08 of the Indenture, check the box below:
/ / Section 4.07 / / Section 4.08
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.07 or Section 4.08 of the Indenture, state the
amount you elect to have purchased: $_______
Date: Your Signature:
----------------- ----------------------------------
(Sign exactly as your name appears on the Note)
By:
------------------------------
Notice: To be executed by an executive officer
Tax Identification No.:
--------------------------
Signature Guarantee:*
----------------------------
-----------------------
* Signature must be guaranteed.
B-14
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT*
The following increases or decrease in the principal amount of this
Global Note have been made:
Principal Amount Signature of
Date of Exchange Amount of Amount of of this Global authorized
or Transfer decrease in increase in Note following signatory of Trustee
Principal Amount Principal Amount such decrease or or Note Custodian
of this Global of this Global increase
Note Note
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
---------------------------------
* To be attached only to Global Notes
B-15
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
U.S. GLOBAL NOTE OR IAI GLOBAL NOTE
TO REGULATION S TEMPORARY GLOBAL NOTE
(Transfers pursuant to Section 2.07(a)(ii) of the Indenture)
The Bank of New York, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee
Administration
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee.
This letter relates to U.S. $175,000,000 aggregate principal
amount of Senior Notes which are held in the form of the [Rule 144A Global Note
(CUSIP No. 000000XX0)] [IAI Global Note (CUSIP No. 000000XX0)] with the
Depositary in the name of [name of transferor] (the "Transferor") to effect the
transfer of the Notes in exchange for an equivalent security entitlement in the
Regulation S Temporary Global Note.
In connection with such request, the Transferor does hereby
certify that such transfer has been effected In accordance with the transfer
restrictions set forth in the Notes and (i) with respect to transfers made in
reliance on Regulation S, does hereby certify that:
(1) the offer of the Notes was not made to a person in the
United States:
(2) the transaction was executed in on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States:
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable, and
C-1
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the United States Securities Act of
1933, as amended (the "Securities Act"):
(ii) with respect to transfers made in reliance on Rule 144 does hereby certify
that the Notes are being transferred in a transaction permitted by Rule 144
under the Securities Act; (iii) with respect to transfers made in reliance on
Rule 144, does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act to a transferee that the
Transferor reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of
any state of the United States or any other jurisdiction; and (iv) with respect
to transfers made in reliance on Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act does hereby certify that such Notes are being
transferred to a transferee that the Transferor reasonably believes is
purchasing the Notes for its own account or an account as to which the
transferee exercises sole investment discretion and the transferee and any such
account is an institutional "accredited investor" within the meaning of Rule
501(a)(1,) (2), (3) or (7) of Regulation D under the Securities Act and in
accordance with applicable securities laws of any state, of the United States or
any other jurisdiction.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1) of Regulation S
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1), as
the case may be.
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. Capitalized terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S.
[Name of Transferor]
By:
-------------------
Name:
Title:
Date:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
C-2
Attn: Xxxxxxx X. Xxxxxxxxxxxx
C-3
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S TEMPORARY GLOBAL NOTE
TO U.S. GLOBAL NOTE OR IAI GLOBAL NOTE
(Transfers pursuant to Section 2.07(a)(iii) of the Indenture)
The Bank of New York, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee
Administration
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee. Capitalized terms used but
not defined herein shall have the respective meanings given them in the
Indenture.
This letter relates to U.S. $175,000,000 aggregate principal
amount of Notes which are held in the form of the Regulation S Temporary Global
Note (ISIN No. X0000XXX0) with the Depositary in the name of [name of
transferor] (the "Transferor") to effect the transfer of the Notes in exchange
for an equivalent security entitlement in the [Rule 144A/IAI] Global Note.
In connection with such request, and in respect of such Notes
the Transferor does hereby certify that such Notes are being transferred in
accordance with (i) the transfer restrictions set forth in the Notes and (ii)
[Rule 144A under the United States Securities Act of 1933, as amended, to a
transferee that the Transferor reasonable believes is purchasing the Notes for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and] [to a transferee that the
Transferor reasonable believes is purchasing the Notes for its own account or an
account as to which the transferee exercises sole investment discretion and the
transferee and any such account is an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D and] in
accordance with applicable securities laws of any state of the United States or
any other jurisdiction.
D-1
[Name of Transferor],
By:
--------------------
Name:
Title:
Dated:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
X-0
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL NOTE OR TRANSFER RESTRICTED SECURITY
TO TRANSFER RESTRICTED SECURITY
(Transfers pursuant to Section 2.07(a)(iv) or Section 2.07(a)(v) of the
Indenture)
The Bank of New York, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee
Administration
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee. Capitalized terms used but
not defined herein shall have the respective meanings given them in the
Indenture.
This letter relates to U.S. $175,000,000 aggregate principal
amount of Notes which are held [in the form of the [U.S./IAI/Regulation S]
[Global] [Transfer Restricted] Security (CUSIP Nos. [000000XX0],[000000XX0],
[X0000XXX0]/ISIN No. [US027126AA91]) with the Depositary*] in the name of
[name of transferor] (the "Transferor") to effect the transfer of the Notes.
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred (i) in
accordance with the transfer restrictions set forth in the Notes and (ii) to a
transferee that the Transferor reasonably, believes is an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the United States Securities Act of 1933, as amended) and is
acquiring at least $100,000 principal amount of Notes for its own account or for
one or more accounts as to which the transferee exercises sole investment
discretion and (iii) in accordance with applicable securities laws of any state
of the United States or any other jurisdiction.
----------------------
* Insert, if appropriate.
E-1
[Name of Transferor]
By:
-----------------------
Name:
Title:
Dated:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
E-2
EXHIBIT F
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
(Transfers pursuant to Section 2.07(a)(iv) or Section 2.07(a)(v))
The Bank of New York, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee
Administration Department
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee. Capitalized terms used but
not defined herein shall have the respective meanings given them in the
Indenture.
This letter relates to U.S. $175,000,000 aggregate principal
amount of Notes which are held in the form of the [U.S./IAI/Regulation S]
[Transfer Restricted] [Global] [Note] [Securities] (CUSIP Nos.[000000XX0],
[000000XX0], [X0000XXX0]/ ISIN No. [US027126AA91]) with the Depositary]* in the
name of [name of transferor] (the "Transferor") to effect the transfer of the
Notes to the undersigned.
In connection with such request, and in respect of such Notes
we confirm that:
1. We understand that the Notes were originally offered in a
transaction not involving any public offering in the United States
within the meaning of the United States Securities Act of 1933, as
amended (the "Securities Act"), that the Notes have not been registered
under the Securities Act and that (A) the Notes may be offered, resold,
pledged or otherwise transferred only (i) 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, in a transaction meeting the requirements of
Rule 144 under the Securities Act, to a person who the seller
reasonably believes is an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act), outside the United States in a transaction meeting the
requirements of Rule 903 or 904 of Regulation S under the Securities
-----------------------------
* Insert and modify, if appropriate.
F-1
Act or 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), (ii) to the Company or (iii)
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
purchaser will, and each subsequent holder is required to, notify, any
subsequent purchaser from it of the resale restrictions set forth in
(A) above.
2. We are a corporation, partnership or other entity having
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Notes, and we are (or any account for which we are purchasing under
paragraph 4 below is) an institutional "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, able to
bear the economic risk of our proposed investment in the Securities.
3 . We are acquiring the Notes for our own account (or for
accounts as to which we exercise sole investment discretion and have
authority to make, and do make, the statements contained in this
letter) and not with a view to any distribution of the Notes, subject,
nevertheless, to the understanding that the disposition of our property
shall at all times be and remain within our control.
4. We are, and each account (if any) for which we are
purchasing Notes is, purchasing Notes having an aggregate principal
amount of not less than $100.000.
5 . We understand that (a) the Notes will be delivered to us
in registered form only and that the certificate delivered to us in
respect of the Notes will bear a legend substantially to the following
effect:
F-2
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE 'SECURITIES ACT'). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE THIRD ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ('RULE 144A'), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY). (3) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY (THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER
ON THE REVERSE OF THIS SECURITY), AND, IF SUCH TRANSFER IS BEING EFFECTED BY
CERTAIN
and (b) such certificates will be reissued without the foregoing legend
only in accordance with the terms of the Indenture.
6. We agree that in the event that at some future
time we wish to dispose of any of the Notes, we will not do so unless:
(a) the Notes are sold to the Company or any
Subsidiary thereof;
(b) the Notes are sold to a qualified
institutional buyer in compliance with Rule 144A under the Securities
Act;
(c) the Notes are sold to an institutional
accredited investor, as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, acquiring at least $100,000 principal amount
of the Notes that, prior to such transfer, furnishes to the Trustee a
signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Notes (the form of
which letter can be obtained from such Trustee);
(d) the Notes are sold outside the United
States in compliance with Rule 903 or Rule 904 under the Securities
Act;
(e) the Notes are sold by us pursuant to
Rule 144 under the Securities Act; or
F-3
(f) the Notes are sold pursuant to an
effective registration statement under the Securities Act.
Very truly yours,
[PURCHASER]
By:
------------------------
Name:
Title:
Dated:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
F-4
EXHIBIT G
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S TEMPORARY GLOBAL NOTE
FOR REGULATION S PERMANENT GLOBAL NOTE
(Transfers pursuant to Section 2.07(a)(viii))
(Transferor)
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE AS
OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This certificate relates to U.S. $175,000,000 aggregate
principal amount of Notes which are held in the form of the Regulation S
Temporary Global Note (ISIN No. US027126AA91) with the Depositary in the name
[name of transferor] (the "Transferor") to effect the transfer of the security
entitlement in such Regulation S Temporary Global Note for a security
entitlement in an equivalent aggregate principal amount of the Regulation S
Permanent Global Note.
In connection with such request, and in respect of such Notes,
we confirm that:
1. We are either not a U.S. person (as defined below) or we
have purchased our security entitlement in the above referenced
Regulation S Temporary Global Note in a transaction that is exempt from
the registration requirements under the Securities Act.
2. We are delivering this certificate in connection with
obtaining a security entitlement in the Regulation S Permanent Global
Note in exchange for our security entitlement in the Regulation S
Temporary Global Note.
For purposes of this certificate. "U.S. person" means (i) any
individual resident in the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United States. (iii) any estate
of which an executor or administrator
G-1
is a U.S. person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-U.S. person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which any
trustee is a U.S. person (other than a trust of which at least one trustee is a
non-U.S. person who has sole or shared investment discretion with respect to its
assets and no beneficiary of the trust (and no settlor if the trust is
revocable) is a U.S. person), (v) any agency or branch of a foreign entity
located in the United States, (vi) any non-discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a non-U.S. person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated, and owned, by accredited investors within the meaning
of Rule 501 (a) under the Securities Act who are not natural persons, estates or
trusts); provided, however, that the term "U.S. person" shall not include (A) a
branch or agency of a U.S. person that is located and operating outside the
United States for valid business purposes as a locally regulated branch or
agency engaged in the banking or insurance business, (B) any employee benefit
plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
We irrevocably authorize you to produce this certificate or a
copy hereof to any interested party in any administrative or other proceedings
with respect to the matters covered by this certificate.
Very truly yours,
[TRANSFEROR]
By:
---------------------------
Name:
Title:
To be completed by the
account holder as, or as
agent for, the beneficial
owner(s) of the Notes to
which this certificate
relates.
Dated:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
X-0
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
G-3
EXHIBIT H
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S TEMPORARY GLOBAL NOTE
FOR REGULATION S PERMANENT GLOBAL NOTE
(Transfers pursuant to Section 2.07(a)(viii))
(Euroclear or Cedel)
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee
Administration Department
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This certificate relates to U.S. $175,000,000 aggregate
principal amount of Notes which are held in the form of the Regulation S
Temporary Global Note (ISIN No. US027126AA91) with the Depositary to effect the
transfer of the security entitlement in such Regulation S Temporary Global Note
for a security entitlement in an equivalent aggregate principal amount of the
Regulation S Permanent Global Note.
In connection with such request, this is to certify that,
based solely on certificates we have received in writing, by tested telex or by
electronic transmission from member organizations appearing in our records as
persons being entitled to a portion of the principal amount of the Regulation S
Temporary Global Note set forth above (our "Member Organizations") substantially
to the effect set forth in the Indenture, U.S. $[ ] aggregate principal amount
of the Notes is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States federal income taxation
regardless of its source or any other person deemed a "U.S. person" under
Regulation S under the Securities Act of 1993, as amended.
We further certify (i) that we are not making available
herewith for exchange (or if relevant, exercise of any rights of collection of
any interest) any portion of the Regulation S Global Note excepted in such
certificates and (ii) that, as of the date hereof, we have not received any
notification from any of our Member Organizations to
H-1
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights of collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certificate is required in
connection with certain laws, and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Very truly yours,
[XXXXXX GUARANTY
TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE
AS OPERATOR OF THE
EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE
ANONYME]
By:
------------------
Name:
Title:
Dated:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
H-2
EXHIBIT I
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S PERMANENT GLOBAL NOTE FOR
TRANSFER RESTRICTED SECURITIES
(Transfers pursuant to Section 2.07(a)(viii))
(Transferor)
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee
Administration Department
Re: American Lawyer Media, Inc.
9 3/4% Senior Notes Due 2007 (the "Notes")
Reference is hereby made to the Indenture dated as of December
22, 1997 (the "Indenture") between American Lawyer Media, Inc., as Issuer, ALM
LLC, Counsel Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the
"Guarantors") and The Bank of New York, as Trustee. Capitalized terms used but
not defined herein shall have the respective meanings given them in the
Indenture.
This certificate relates to U.S. $175,000,000 aggregate
principal amount of Notes which are held in the form of the Regulation S
Permanent Global Note (ISIN No. US02712AA91) with the Depositary in the name of
[name of transferor] (the "Transferor") to effect the transfer of the security
entitlement in such Regulation S Permanent Global Note for a security
entitlement in an equivalent aggregate principal amount of Transfer Restricted
Securities.
In connection with such request, and in respect of such Notes,
we confirm that:
1 We are either not a U.S. person (as defined below) or we
have purchased our security entitlement in the above referenced
Regulation S Permanent Global Note in a transaction that is exempt from
the registration requirements under the Securities Act.
2. We are delivering this certificate in connection with
obtaining a security entitlement in Transfer Restricted Securities in
exchange for our security entitlement in the Regulation S Permanent
Global Note.
For purposes of this certificate, "U.S. person" means (i) any
individual resident in the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United States, (iii) any estate
of which an executor
I-1
or administrator is a U.S. person (other than an estate governed by foreign law
and of which at least one executor or administrator is a non-U.S. person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. person (other than a trust of which at least one
trustee is a non-U.S. person who has sole or shared investment discretion with
respect to its assets and no beneficiary of the trust (and no settlor if the
trust is revocable) is a U.S. person), (v) any agency or branch of a foreign
entity located in the United States, (vi) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a non-U.S. person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated, and owned, by accredited investors within the meaning
of Rule 501 (a) under the Securities Act who are not natural persons, estates or
trusts); provided, however, that the term "U.S. person" shall not include (A) a
branch or agency of a U.S. person that is located and operating outside the
United States for valid business purposes as a locally regulated branch or
agency engaged in the banking or insurance business, (B) any employee benefit
plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
We irrevocably authorize you to produce this certificate or a
copy hereof to any interested party in any administrative or other proceedings
with respect to the matters covered by this certificate.
Very truly yours,
[TRANSFEROR]
By:
--------------------------
Name:
Title:
To be completed by the account
holder as, or as agent for, the
beneficial owner(s) of the Notes
to which this certificate
relates.
Dated:
cc: American Lawyer Media, Inc.
000 Xxxxx Xxxxxx
X-0
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
I-3
EXHIBIT J
RESTRICTED SUBSIDIARY GUARANTEE
Every Guarantor listed below (hereinafter referred to as the
"Guarantors," ) which term includes any successor or assign under the Indenture
by and among American Lawyer Media, Inc., a Delaware corporation (the
"Company"), the Guarantors party thereto and The Bank of New York, as trustee
(the "Indenture") and any additional Guarantors), has irrevocably and
unconditionally guaranteed (i) the due and punctual payment of the principal of,
premium, if any, and interest on the 9 3/4% Senior Notes due 2007 (the "Notes")
of the Company, whether at stated maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal, and premium if
any, and (to the extent permitted by law) interest on any interest, if any, on
the Notes, and the due and punctual performance of all other obligations of the
Company, to the Holders or the Trustee all in accordance with the terms set
forth in Article X of the Indenture, (ii) the payment of Liquidated Damages (as
defined in the Registration Rights Agreement dated December 22, 1997 between the
Company, the Guarantors and the Initial Purchasers), if any, as required by
Section 5 of the Registration Rights Agreement),(iii) in case of any extension
of time of payment or renewal of any Notes or any such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise, and (iv) the payment of any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Subsidiary Guarantee.
The obligations of each Guarantor to the Holder and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article X of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee.
No stockholder, officer, director or incorporator, as such,
past, present or future of each Guarantor shall have any liability under this
Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director or incorporator.
This is a continuing Subsidiary Guarantee and shall remain in
full force and effect and shall be binding upon each Guarantor and its
successors and assigns until full and final payment of all of the Company's
obligations under the Notes and Indenture and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders, and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. This is a Subsidiary Guarantee of payment and not of collectibility.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
J-1
The Obligations of each Guarantor under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
Guarantor:
By:
------------------------
Name:
Title:
J-2
EXHIBIT K
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of _________, __ between __________ (the "Additional Guarantor"), American
Lawyer Media, Inc., a Delaware corporation (the "Company"), ALM LLC, Counsel
Connect LLC, ALM IP, LLC and ALM Counsel Connect Inc. (the "Guarantors") and The
Bank of New York, a New York banking corporation, as trustee under the indenture
referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company and the Guarantors have heretofore
executed and delivered to the Trustee an indenture (the "Indenture"), dated
as of December 22, 1997, providing for the issuance of an aggregate principal
amount of $175,000,000 of 9 3/4% Series A and Series B Senior Notes due 2007
(the "Notes");
WHEREAS, Section 4.15 of the Indenture provides that under
certain circumstances the Company and the Guarantors are required to cause the
Additional Guarantor to execute and deliver to the Trustee a supplemental
indenture pursuant to which the Additional Guarantor shall unconditionally
guarantee all of the Company's Obligations under the Indenture and the Notes
pursuant to a guarantee (the "Additional Guarantee") on the terms and conditions
of the Guarantee by the Guarantors in Article X of the Indenture and on the
other terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01(e) of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto mutually covenant and agree for the equal and
ratable benefit of the holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Additional Guarantor hereby
agrees, jointly and severally with all other guarantors, to guarantee the
Company's Obligations under the Indenture and the Notes on the terms and subject
to the conditions set forth herein and in Article X of the Indenture (including
the obligation to pay Liquidated Damages under the provisions of the
Registration Rights Agreement) and to be bound by all other applicable
provisions of the Indenture. Pursuant to Section 10.02 of the Indenture, the
K-1
Additional Guarantor agrees that the Subsidiary Guarantees set forth in Article
X of the Indenture, as supplemented by its agreement to guarantee contained
herein, shall remain in full force and effect and apply to all of the Notes
notwithstanding any failure by the Additional Guarantor to endorse on such Note
a notation of the Subsidiary Guarantee.
3. RELEASE OF ADDITIONAL GUARANTOR. In the event that the
holders of the Company's Other Indebtedness which is guaranteed by the
Additional Guarantor release the Additional Guarantor from its guarantee in
respect of such Other Indebtedness, except a discharge or release by or as a
result of any payment under the guarantee of such Other Indebtedness by the
Additional Guarantor, the Additional Guarantor shall be automatically and
unconditionally released and discharged from its obligations under this
Additional Guarantee; provided however, if, after such release, any guarantee
under such Other Indebtedness is subsequently reincurred or reinstated, then
such Additional Guarantor reincurring or reinstating such guarantee under such
Other Indebtedness shall execute and reinstate its Additional Guarantee
hereunder.
Upon receipt of an Officers' Certificate, the Trustee shall
execute any documents reasonably requested by the Company, the Guarantors or the
Additional Guarantor in order to evidence the release of such Additional
Guarantor from its obligations under the Additional Guarantee.
4. NO RECOURSE AGAINST OTHERS. No direct or indirect
stockholder, employee, officer or director, as such, past, present or future of
the Company, the Guarantors or the Additional Guarantor or any successor entity
shall have any personal liability for any Obligations of the Company, the
Guarantors or the Additional Guarantor or any successor entity under the
Additional Guarantee, by reason of his or its status as such stockholder,
employee, officer or director.
Each Holder by accepting a Note waives and releases all such liability,
and such waiver and release is part of the consideration for the issuance of the
Notes.
5. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
K-2
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
[ADDITIONAL GUARANTOR]
By:
--------------------------------
Name:
Title:
Attest:
----------------------------- (SEAL)
Name:
Title:
AMERICAN LAWYER MEDIA, INC.
By:
--------------------------------
Name:
Title:
Attest:
----------------------------- (SEAL)
Name:
Title:
K-3
ALM LLC
By:
--------------------------------
Name:
Title:
Attest:
----------------------------- (SEAL)
Name:
Title:
COUNSEL CONNECT LLC
By:
--------------------------------
Name:
Title:
Attest:
----------------------------- (SEAL)
Name:
Title:
K-4
ALM IP, LLC
By:
-----------------------------
Name:
Title:
Attest:
---------------------------- (SEAL)
Name:
Title:
K-5
ALM COUNSEL CONNECT INC.
By:
--------------------------------
Name:
Title:
Attest:
------------------------------- (SEAL)
Name:
Title:
K-6
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Name:
Title:
Attest:
------------------------------- (SEAL)
Name:
Title:
K-7
