EXHIBIT 4.4
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______________________________________
[ ], as Issuer,
______________________________________
and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
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INDENTURE
Dated as of [ ], [ ]
$350,000,000
13 7/8% Senior Debentures due 2010
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1)........................................................... 7.10
(a)(2)........................................................... 7.10
(a)(3)........................................................... N.A.
(a)(4)........................................................... N.A.
(b).............................................................. 7.08; 7.
(b)(1)........................................................... 7.10
(b)(9)........................................................... 7.10
(c).............................................................. N.A.
311 (a).............................................................. 7.11
(b).............................................................. 7.11
(c).............................................................. N.A.
312 (a).............................................................. 2.05
(b).............................................................. 10.03
(c).............................................................. 10.03
313 (a).............................................................. 7.06
(b)(1)........................................................... 7.06
(b)(2)........................................................... 7.06
(c).............................................................. 7.06
(d).............................................................. 7.06
314 (a).............................................................. 4.02; 4.04; 10.02
(b).............................................................. N.A.
(c)(1)........................................................... 10.04; 10.05
(c)(2)........................................................... 10.04; 10.05
(c)(3)........................................................... N.A.
(d).............................................................. N.A.
(e).............................................................. 10.05
(f).............................................................. N.A.
315 (a).............................................................. 7.01; 7.02
(b).............................................................. 7.05; 10.02
(c).............................................................. 7.01
(d).............................................................. 6.05; 7.01; 7.02
(e).............................................................. 6.11
316 (a) (last sentence).............................................. 10.06
(a)(1)(A)........................................................ 6.05
(a)(1)(B)........................................................ 6.04
(a)(2)........................................................... 8.02
(b).............................................................. 6.07
(c).............................................................. 8.04
317 (a)(1)........................................................... 6.08
(a)(2)........................................................... 6.09
(b).............................................................. N.A.
318 (a).............................................................. 10.01
__________________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions............................................... 1
Section 1.02. Other Definitions......................................... 26
Section 1.03. Incorporation by Reference of Trust Indenture Act......... 27
Section 1.04. Rules of Construction..................................... 28
ARTICLE 2
THE SECURITIES
Section 2.01. Dating; Incorporation of Form in Indenture................ 28
Section 2.02. Execution and Authentication.............................. 29
Section 2.03. Registrar and Paying Agent................................ 30
Section 2.04. Paying Agent To Hold Assets in Trust...................... 31
Section 2.05. Securityholder Lists...................................... 31
Section 2.06. Transfer and Exchange..................................... 31
Section 2.07. Replacement Securities.................................... 32
Section 2.08. Outstanding Securities.................................... 32
Section 2.09. Temporary Securities...................................... 33
Section 2.10. Cancellation.............................................. 33
Section 2.11. Defaulted Interest........................................ 33
Section 2.12. Deposit of Moneys......................................... 34
Section 2.13. CUSIP Number.............................................. 34
Section 2.14. Book-Entry Provisions for Global Securities............... 34
Section 2.15. Special Transfer Provisions............................... 36
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee........................................ 38
Section 3.02. Selection by Trustee of Securities To Be Redeemed......... 39
Section 3.03. Notice of Redemption...................................... 39
Section 3.04. Effect of Notice of Redemption............................ 40
Section 3.05. Deposit of Redemption Price............................... 40
Section 3.06. Securities Redeemed in Part............................... 41
Section 3.07. Optional Redemption....................................... 41
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.................................... 42
Section 4.02. SEC Reports.............................................. 42
Section 4.03. Waiver of Stay, Extension or Usury Laws.................. 43
Section 4.04. Compliance Certificate................................... 43
Section 4.05. Taxes.................................................... 44
Section 4.06. Limitation on Incurrence of Additional Indebtedness...... 44
Section 4.07. Limitation on Restricted Payments........................ 45
Section 4.08. Limitation on Transactions with Affiliates............... 47
Section 4.09. Payments for Consent..................................... 49
Section 4.10. Corporate Existence...................................... 49
Section 4.11. Change of Control........................................ 50
Section 4.12. Maintenance of Office or Agency.......................... 52
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets... 52
Section 5.02. Successor Person Substituted............................. 53
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default........................................ 54
Section 6.02. Acceleration............................................. 56
Section 6.03. Other Remedies........................................... 57
Section 6.04. Waiver of Past Defaults and Events of Default............ 57
Section 6.05. Control by Majority...................................... 57
Section 6.06. Limitation on Suits...................................... 58
Section 6.07. Rights of Holders To Receive Payment..................... 58
Section 6.08. Collection Suit by Trustee............................... 59
Section 6.09. Trustee May File Proofs of Claim......................... 59
Section 6.10. Priorities............................................... 60
Section 6.11. Undertaking for Costs.................................... 60
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee........................................ 60
Section 7.02. Rights of Trustee........................................ 62
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Section 7.03. Individual Rights of Trustee................................ 63
Section 7.04. Trustee's Disclaimer........................................ 63
Section 7.05. Notice of Defaults.......................................... 63
Section 7.06. Reports by Trustee to Holders............................... 64
Section 7.07. Compensation and Indemnity.................................. 64
Section 7.08. Replacement of Trustee...................................... 65
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.... 67
Section 7.10. Eligibility; Disqualification............................... 67
Section 7.11. Preferential Collection of Claims Against Company........... 67
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.................................. 67
Section 8.02. With Consent of Holders..................................... 68
Section 8.03. Compliance with Trust Indenture Act......................... 70
Section 8.04. Revocation and Effect of Consents........................... 70
Section 8.05. Notation on or Exchange of Securities....................... 71
Section 8.06. Trustee To Sign Amendments, etc............................. 71
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture...................................... 71
Section 9.02. Legal Defeasance............................................ 72
Section 9.03. Covenant Defeasance......................................... 73
Section 9.04. Conditions to Defeasance or Covenant Defeasance............. 73
Section 9.05. Deposited Money and U.S. Government Obligations To Be Held
in Trust; Other Miscellaneous Provisions.................... 75
Section 9.06. Reinstatement............................................... 76
Section 9.07. Moneys Held by Paying Agent................................. 76
Section 9.08. Moneys Held by Trustee...................................... 76
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls................................ 77
Section 10.02. Notices..................................................... 77
Section 10.03. Communications by Holders with Other Holders................ 79
Section 10.04. Certificate and Opinion as to Conditions Precedent.......... 79
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Section 10.05. Statements Required in Certificate and Opinion.............. 79
Section 10.06. When Treasury Securities Disregarded........................ 80
Section 10.07. Rules by Trustee and Agents................................. 80
Section 10.08. Business Days; Legal Holidays............................... 81
Section 10.09. Governing Law............................................... 81
Section 10.10. No Adverse Interpretation of Other Agreements............... 81
Section 10.11. No Recourse Against Others.................................. 81
Section 10.12. Successors.................................................. 81
Section 10.13. Multiple Counterparts....................................... 82
Section 10.14. Table of Contents, Headings, etc............................ 82
Section 10.15. Separability................................................ 82
EXHIBITS
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Exhibit A - Form of Security............................................. A-1
Exhibit B - Form of Legend for Global Securities......................... B-1
Exhibit C - Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors.................... C-1
Exhibit D - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S........................... D-1
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INDENTURE, dated as of [ ], [ ], between [ ], a
[ ] corporation, as issuer (the "Company"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a bank and trust company organized under the New York Banking Law, as
Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 13 7/8% Senior
Debentures due 2010 (the "Securities").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person.
"Affiliate" means, with respect to any Person, a Person who, directly
or indirectly, through one or more intermediaries controls, or is controlled by,
or is under common control with, such other Person. The term "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; provided, however,
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that the ownership of at least 10% of the voting power of the Common Stock of a
Person, either directly or indirectly, shall be deemed control.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Asset Sale" means the sale, transfer or other disposition (other than
to the Company or any of its Restricted Subsidiaries) in any single transaction
or series of related transactions involving assets with a fair market value in
excess of $1,000,000 of (a) any Capital Stock of or other equity interest in any
Restricted Subsidiary of the Company other than in a transaction where the
Company or such Restricted Subsidiary receives therefor one or more properties
with a fair market value equal to the fair market value of the Capital Stock
issued, transferred or disposed of by the Company or the Restricted Subsidiary
(with such fair market values being determined by the Board of Directors of the
Company), (b) all or substantially all of the assets of the Company or of any
Re-
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stricted Subsidiary thereof, (c) real property or (d) all or substantially all
of the assets of any division, line of business or comparable business segment
of the Company or of any Restricted Subsidiary thereof; provided that Asset
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Sales shall not include (x) sales, leases, conveyances, transfer or other
dispositions to the Company or to a Restricted Subsidiary to any other Person
if, after giving effect to such sale, lease, conveyance, transfer or other
disposition, such other Person becomes a Restricted Subsidiary, or (y) the sale
of all or substantially all of the assets of the Company or a Restricted
Subsidiary in a transaction complying with Section 5.01, in which case only the
assets not so sold shall be deemed an Asset Sale, or (z) any sale, issuance or
other disposition of Capital Stock or assets of any Joint Venture Subsidiary.
"Board of Directors" means the board of directors of the Company or
any authorized committee thereof (a "Board Committee"); provided that the term
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"Board of Directors" as used in the definition of "Change of Control" shall not
include any Board Committee.
"Board Resolution" means a copy of a resolution certified pursuant to
an Officers' Certificate to have been duly adopted by the Board of Directors of
the Company to be in full force and effect, and delivered to the Trustee.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock, including each class of common stock and
preferred stock of such Person and warrants or options to purchase any of the
foregoing and (ii) with respect to any Person that is not a corporation, any and
all partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligation
of such Person to pay rent or other amounts under a lease to which such Person
is a party that is 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 (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case
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maturing within one year from the date of acquisition thereof; (ii) 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 one of the two highest ratings obtainable from either S&P
or Moody's; (iii) commercial paper maturing no more than one year from the date
of creation thereof and, at the time of acquisition, having a rating of at least
A-1 from S&P or at least P-1 from Moody's; (iv) 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 or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all of their assets in securities of the
types described in clauses (i) through (v) above.
"Certificate of Designation" means the Certificate of Designation
under which the Senior Preferred Stock was issued, as in effect on the date of
original issuance of the Senior Preferred Stock.
A "Change of Control" of the Company will be deemed to have occurred
at such time as (i) any Person (including a Person's Affiliates), other than a
Permitted Holder, becomes the beneficial owner (as defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of 50% or
more of the total voting power of the Company's Common Stock unless, as a result
of such transaction, the ultimate direct or indirect ownership of the Company is
substantially the same immediately after such transaction as it was immediately
prior to such transaction, (ii) any Person (including a Person's Affiliates),
other than a Permitted Holder, becomes the beneficial owner of more than 35% of
the total voting power of the Company's Common Stock, and the Permitted Holders
beneficially own, in the aggregate, a lesser percentage of the total voting
power of the Common Stock of the Company than such other Person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company,
(iii) there shall be consummated any consolidation or merger of
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the Company in which the Company is not the continuing or surviving corporation
or pursuant to which the Common Stock of the Company would be converted into
cash, securities or other property, other than a merger or consolidation of the
Company in which the holders of the Common Stock of the Company outstanding
immediately prior to the consolidation or merger hold, directly or indirectly,
at least a majority of the voting power of the Common Stock of the surviving
corporation immediately after such consolidation or merger or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company has been approved by a majority of
the directors then still in office who either were directors at the beginning of
such period or whose election or recommendation for election was previously so
approved) cease to constitute a majority of the Board of the Directors of the
Company.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of, such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor obligor on the Securities.
"Company Request" means any written request signed in the name of the
Company by the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer or the Treasurer and attested to by the Secretary or any
Assistant Secretary of the Company.
"Consolidated EBITDA" means, for any Person and its Restricted
Subsidiaries, for any period, an amount equal to (a) the sum of Consolidated Net
Income for such period, plus, to the extent deducted from the revenues of such
Person and its Restricted Subsidiaries in determining Consolidated Net Income,
(i) the provision for taxes for such period based on income or profits and any
provision for taxes utilized in computing a loss in Consolidated Net Income
above, plus (ii) Consolidated Interest Expense (including, for this purpose,
dividends on the Senior Preferred Stock and any Redeemable Dividends in each
case only to the extent that such dividends were deducted in
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determining Consolidated Net Income), plus (iii) Consolidated Non-Cash Charges,
plus (iv) without duplication, charges attributable to the exercise or
adjustment of employee options and fees and expenses, in each case, incurred in
connection with the Recapitalization or the transactions described under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Recent Events and Proposed Recapitalization," in the Offering
Memorandum plus (v) without duplication, for any four quarter period that
includes one or more fiscal quarters of fiscal 1998 or either or both of the
first two fiscal quarters of fiscal 1999, restructuring charges, in an aggregate
amount not to exceed $12,000,000, but only to the extent actually incurred
during each such applicable quarter and minus (vi) without duplication, the
amount of all cash payments made by such Person or any of its Restricted
Subsidiaries during such period to the extent such payments relate to
Consolidated Non-Cash Charges that were added back in determining Consolidated
EBITDA for such period or any prior period, all as determined on a consolidated
basis for such Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" on any date of
determination (the "Transaction Date") means, with respect to any Person, the
ratio of (i) the aggregate amount of Consolidated EBITDA of such Person for the
Reference Period to (ii) the aggregate amount of Consolidated Fixed Charges of
such Person during the Reference Period; provided, that for purposes of such
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computation, in calculating Consolidated EBITDA and Consolidated Fixed Charges,
(a) the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio will be assumed to have occurred (on a pro forma basis) on
the first day of the Reference Period; (b) the incurrence of any Indebtedness
(other than Indebtedness incurred under any revolving credit or similar facility
to the extent that the proceeds were used to finance working capital
requirements in the ordinary course of business) or the issuance of any
Disqualified Capital Stock or Preferred Stock during the Reference Period or
subsequent thereto and on or prior to the Transaction Date (and the application
of the proceeds therefrom (other than a repayment of Indebtedness outstanding
under a revolving credit or similar facility to the extent that the proceeds
were used to finance working capital requirements in the ordinary course of
business) to the extent used to retire Indebtedness or Preferred Stock) will be
assumed to have occurred (on a pro forma basis) on the first day of such
Reference Period; (c) Consolidated Interest Expense attributable to any
Indebtedness (whether existing or being incurred) bearing a floating interest
rate shall be computed as if the rate in effect on the
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Transaction Date had been the applicable rate for the entire period, unless such
Person or any of its Subsidiaries is a party to an Interest Rate Agreement
(which shall remain in effect for the 12-month period after the Transaction
Date) that has the effect of fixing the interest rate on the date of
computation, in which case such rate (whether higher or lower) shall be used;
(d) the repayment of any Indebtedness (other than under a revolving credit or
similar facility to the extent that the proceeds were used to finance working
capital requirements in the ordinary course of business), Disqualified Capital
Stock or Preferred Stock during the Reference Period or subsequent thereto and
on or prior to the Transaction Date with the proceeds of any sale or other
disposition of assets or properties referred to in clause (f) below will be
assumed to have occurred (on a pro forma basis) on the first day of the
Reference Period; (e) the acquisition during the Reference Period or subsequent
thereto and on or prior to the Transaction Date of any other Person which, as a
result of such acquisition, becomes a Subsidiary, will be assumed to have
occurred (on a pro forma basis) on the first day of the Reference Period; and
(f) any sale or other disposition of assets or properties constituting an
existing business (whether existing as a separate entity, subsidiary, division,
unit or otherwise) outside the ordinary course of business occurring during the
Reference Period or subsequent thereto and on or prior to the Transaction Date
will be assumed to have occurred (on a pro forma basis) on the first day of the
Reference Period.
"Consolidated Fixed Charges" of any Person for any period means
(without duplication) the sum of (i) Consolidated Interest Expense of such
Person for such period (excluding amortization or write-off of deferred
financing fees and expenses) and (ii) without duplication, Redeemable Dividends
of such Person and its Restricted Subsidiaries (whether in cash or otherwise
(except dividends payable solely in shares of Qualified Capital Stock)) with
respect to Disqualified Capital Stock and Preferred Stock accrued during such
period in accordance with GAAP (but in the case of such Preferred Stock, only to
the extent that the aggregate amount of dividends paid or accrued from and after
the Issue Date exceeds the aggregate net cash proceeds to such Person from the
issuance and sale of such Preferred Stock), in each case excluding items
eliminated in consolidation of such Person and its Restricted Subsidiaries;
provided, that dividends accrued or paid on the Senior Preferred Stock shall not
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be included in the calculation of Consolidated Fixed Charges.
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"Consolidated Interest Expense" means, with respect to any Person, for
any period, the aggregate amount of interest which, in conformity with GAAP,
would be set forth opposite the caption "interest expense" or any like caption
on an income statement for such Person and its Restricted Subsidiaries on a
consolidated basis, including, but not limited to, Redeemable Dividends, whether
paid or accrued, on Restricted Subsidiary Preferred Stock, imputed interest
included in Capitalized Lease Obligations, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with hedging obligations, amortization of
other financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount or premium, if any, and all other non-cash
interest expense (other than interest amortized to cost of sales) plus, without
duplication, all net capitalized interest for such period and all interest
incurred or paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person, plus the amount
of all dividends or distributions paid on Disqualified Capital Stock (other than
dividends paid or payable in shares of Capital Stock of the Company), minus
interest income for such period.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the net income (or loss) of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided, however, that (a) the net income of any Person
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including of any Emerging Market Subsidiary or Unrestricted Subsidiary (each, an
"Other Person") in which the Person in question or any of its Restricted
Subsidiaries has less than a 100% interest (which interest does not cause the
net income of such Other Person to be consolidated into the net income of the
Person in question in accordance with GAAP) shall be included only to the extent
of the amount of dividends or distributions paid to the Person in question or to
any of its Restricted Subsidiaries, (b) the net income of any Restricted
Subsidiary of the Person in question that is subject to any restriction or
limitation on the payment of dividends or the making of other distributions
(other than pursuant to the Securities) shall be excluded to the extent of such
restriction or limitation, (c) (i) the net income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded and (ii) any net gain or net loss resulting from
an Asset Sale by the Person in question or any of its Restricted Subsidiaries
other than in the ordinary course of business shall be excluded, (d)
extraordinary, un-
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usual or non-recurring gains and losses shall be excluded and (e) gains and
losses associated with discontinued and terminated operations shall be excluded.
"Consolidated Non-Cash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash items
(which do not reflect an accrual of a cash expense which may be incurred in the
future) of such Person and its Restricted Subsidiaries reducing Consolidated Net
Income of such Person and its Restricted Subsidiaries less any such non-cash
items increasing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
specified in Section 10.02.
"Credit Agreement" means (i) one or more credit agreements, loan
agreements or similar agreements providing for working capital advances, term
loans, letter of credit facilities or similar advances, loans, or facilities to
the Company, any Subsidiaries, domestic or foreign, or any or all of such
Persons, including the Credit Agreement, dated on or as in effect on or about
the Issue Date, among Samsonite and Samsonite Europe N.V., as borrowers, Bank of
America National Trust and Savings Association and BankBoston, N.A., and certain
other lenders party thereto from time to time, as the same may be amended,
modified, restated or supplemented from time to time and (ii) any one or more
agreements governing advances, loans or facilities provided to refund,
refinance, replace or renew (including subsequent or successive refundings,
refinancings, replacements and renewals) Indebtedness under the agreement or
agreements referred to in the foregoing clause (i), as the same may be amended,
modified, restated or supplemented from time to time.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement designed to address fluctuations in
currency values.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
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"Depository" means, with respect to the Securities issued in the form
of one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Disqualified Capital Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Securities. Without limitation of
the foregoing, Disqualified Capital Stock shall be deemed to include (i) any
Preferred Stock of a Restricted Subsidiary of the Company and (ii) any Preferred
Stock of the Company, with respect to either of which, under the terms of such
Preferred Stock, by agreement or otherwise, such Restricted Subsidiary or the
Company is obligated to pay current dividends or distributions in cash during
the period prior to the maturity date of the Securities; provided, however, that
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Preferred Stock of the Company or any Restricted Subsidiary thereof that is
issued with the benefit of provisions requiring a change of control offer to be
made for such Preferred Stock in the event of a change of control of the Company
or such Restricted Subsidiary, which provisions have substantially the same
effect as the provisions of Section 4.11 shall not be deemed to be Disqualified
Capital Stock solely by virtue of such provisions; and provided, further, that
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the Senior Preferred Stock shall not be considered Disqualified Capital Stock.
"Emerging Market Subsidiary" means (i) any Initial Emerging Market
Subsidiary, (ii) any majority-owned Subsidiary of the Company the principal
operations of which are not located in the United States, Canada, Western Europe
or Japan that, at the time of determination, shall be an Emerging Market
Subsidiary (as designated by the Board of Directors, as provided below) and
(iii) any majority-owned Subsidiary of an Emerging Market Subsidiary. The Board
of Directors may designate (1) any Unrestricted Subsidiary of the Company to be
an Emerging Market Subsidiary, and (2) any Restricted Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary at or prior to the time
it is so formed or acquired) to be an Emerging Market Subsidiary if it meets the
geographic test set forth above and (a) no Default or Event of Default is
existing or will occur as a consequence thereof, (b) with re-
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spect to previously existing Restricted Subsidiaries, immediately after giving
effect to such designation, on a pro forma basis, the Company could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.06 and (c) such Restricted Subsidiary does not own any
Capital Stock of, or own or hold any Lien on any property of, the Company or any
Restricted Subsidiary that is not a Subsidiary of the Restricted Subsidiary to
be so designated. At the time that a previously existing Restricted Subsidiary
of the Company is designated an Emerging Market Subsidiary, the Company shall be
deemed to make an "Investment" in such Emerging Market Subsidiary in an amount
equal to its Pro Rata Interest in the fair market value of the net assets of
such Restricted Subsidiary. A Restricted Subsidiary of the Company shall not be
considered to be a "previously existing Restricted Subsidiary" for purposes of
this definition if such Restricted Subsidiary is designated to be an Emerging
Market Subsidiary at or prior to the time of the formation of such Restricted
Subsidiary or at or prior to the time such Restricted Subsidiary is acquired by
the Company. The Board of Directors may designate any Emerging Market Subsidiary
to be a Restricted Subsidiary, provided that (i) no Default or Event of Default
is existing or will occur as a consequence thereof and (ii) either (x)
immediately after giving effect to such designation, on a pro forma basis, the
Company could incur at least $ 1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.06 or (y) the Consolidated Fixed
Charge Coverage Ratio of the Company immediately after giving effect to such
designation, on a pro forma basis, exceeds the Consolidated Fixed Charge
Coverage Ratio of the Company immediately prior (and without giving effect) to
such designation. Each such designation shall be evidenced by the filing with
the Trustee of a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Equity Offering" means a sale by the Company of shares of its
Qualified Capital Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Credit Agreement" means one or more Credit Agreements among
one or more Foreign Restricted Subsidiaries and the lenders party thereto.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary of the
Company that is incorporated or otherwise or-
-11-
ganized in a jurisdiction other than the United States, any state thereof or the
District of Columbia.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "incurrence," "incurred," "incurrable" and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
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obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness; provided, further, that the
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amortization of original issue discount on Indebtedness issued with original
issue discount or the accumulation of distributions on Disqualified Capital
Stock shall not be deemed an incurrence of Indebtedness.
"Indebtedness" means (without duplication), with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof) or evidenced by bonds, notes, debentures or similar instruments
or representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables and other accrued liabilities or accrued expenses
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included, (i) any Capitalized Lease Obligations, (ii) obligations
secured by a Lien to which the property or assets owned or held by such Person
are subject, whether or not the obligation or obligations secured thereby shall
have been assumed (provided, however, that if such obligation or obligations
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shall not have been assumed, the amount of such Indebtedness shall be deemed to
be the lesser of the principal amount
-12-
of the obligation or the fair market value of the pledged property or assets),
other than a Lien securing an obligation that is not Indebtedness, (iii)
guarantees of items of other Persons which would be included within this
definition for such other Persons (whether or not such items would appear upon
the balance sheet of the guarantor), (iv) all obligations for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (v) Disqualified Capital Stock of the Company or any Restricted
Subsidiary thereof and (vi) obligations of any such Person under any Interest
Rate Agreement or Currency Agreement applicable to any of the foregoing (if and
to the extent such Interest Rate Agreement or Currency Agreement obligations
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP). The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
provided that (i) the amount outstanding at any time of any Indebtedness issued
with original issue discount is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP and (ii)
Indebtedness shall not include any liability for federal, state, local or other
taxes. Notwithstanding any other provision of the foregoing definition, any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business or contingent obligations arising
out of customary indemnification agreements with respect to the sale of assets
or securities shall not be deemed to be "Indebtedness" of the Company or any
Restricted Subsidiaries for purposes of this definition. Furthermore, guarantees
of (or obligations with respect to letters of credit supporting) Indebtedness
otherwise included in the determination of such amount shall not also be
included.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Initial Emerging Market Subsidiary" means each of (i) Xxxx Xxx
Samsonite (H.K.) Limited, (ii) Ningbo Xxxx Xxx Samsonite Luggage Co. Ltd., (iii)
Samsonite Argentina S.A., (iv) Samsonite Brasil Ltda., (v) Samsonite India
Limited, (vi) Samsonite Korea Limited, (vii) Samsonite Mercosur Limited, (viii)
Samsonite Mauritius Limited, and (ix) Samsonite Singapore Limited.
-13-
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of any scheduled
installment of interest on the Securities.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement.
"Investment" by any Person in any other Person means, directly or
indirectly, any advance, account receivable (other than an account receivable
arising in the ordinary course of business), loan or capital contribution to (by
means of transfers of property to others, payments for property or services for
the account or use of others or otherwise), the purchase of any stocks, bonds,
notes, debentures, partnership or joint venture interests or other securities
of, the acquisition, by purchase or otherwise, of all or substantially all of
the business or assets or stock or other evidence of beneficial ownership of,
such other Person or the making of any investment by such Person in any other
Person. Investments shall exclude extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices and repurchases or
redemptions of the Securities by the Company or any other security or evidence
of Indebtedness issued by the Company. Notwithstanding the foregoing, the
following shall not be considered Investments by a Person in any other Person:
(i) trade receivables and prepaid expenses, in each case arising in the ordinary
course of business; provided, that such receivables and prepaid expenses would
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be recorded as assets of such Person in accordance with GAAP, (ii) Investments
received in connection with the bankruptcy or reorganization of suppliers and
customers or in good xxxxx xxxx fide settlement of delinquent ordinary course of
business trade receivables of customers, (iii) endorsements for collection or
deposit in the ordinary course of business by such Person of bank drafts and
similar negotiable instruments of such other Person received as payment for
ordinary course of business trade receivables, (iv) an Interest Rate Agreement
or Currency Agreement with an unaffiliated Person provided that such agreements
comply with the requirements of clause (iv) of the definition of Permitted
Indebtedness, (v) Investments received as consideration for, or customary
indemnities given in connection with, an Asset Sale, and (vi) Investments for
which the sole consideration provided is Qualified Capital Stock. The Company
shall be deemed to make an
-14-
"Investment" in an amount equal to its Pro Rata Interest in the fair market
value of the net assets of any previously existing Restricted Subsidiary, at the
time that such Restricted Subsidiary is designated an Unrestricted Subsidiary or
an Emerging Market Subsidiary, as the case may be; and any property transferred,
directly or indirectly (whether by merger or otherwise) to an Unrestricted
Subsidiary or an Emerging Market Subsidiary, as the case may be, from the
Company or a Restricted Subsidiary after the time of such designation shall be
deemed an Investment valued at its fair market value at the time of such
transfer. A Restricted Subsidiary of the Company shall not be considered to be a
"previously existing Restricted Subsidiary" for purposes of this definition if
such Restricted Subsidiary is designated to be an Emerging Market Subsidiary or
an Unrestricted Subsidiary, as the case may be, at or prior to the time of the
formation of such Restricted Subsidiary or at or prior to the time such
Restricted Subsidiary is acquired by the Company.
"Issue Date" means the date of original issuance of the Senior
Preferred Stock.
"Joint Venture Subsidiary" means a Restricted Subsidiary of the
Company in which one or more Persons who have provided or are providing
operating assets or services to such Restricted Subsidiary beneficially own not
less than 50% of the Capital Stock of such Restricted Subsidiary not owned by
the Company or a Restricted Subsidiary of the Company.
"Lien" means any consensual lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means June 15, 2010.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by
the Company, the aggregate net proceeds received by the Company, after payment
of expenses, commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in property (valued at the fair market value
thereof, as determined in good faith by the Board of Directors, at the time of
receipt) and (b) in the case of any exchange, exercise, conversion or surrender
of outstanding securities of any kind for or into shares of Qualified Capital
Stock of the Company, the net book value of such outstanding securities on the
date of such exchange, exercise, conversion
-15-
or surrender (plus any additional amount required to be paid by the holder to
the Company upon such exchange, exercise, conversion or surrender, less any and
all payments made to the holders, e.g., on account of fractional shares and less
all expenses incurred by the Company in connection therewith).
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Notes" means the 10 3/4% Senior Subordinated Notes due 2008 of
Samsonite issued pursuant to the Notes Indenture.
"Notes Indenture" means the indenture dated as of June 24, 0000
xxxxxxx Xxxxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, as trustee,
relating to the Notes.
"Obligations" means all obligations for principal, premium, interest
(including post-petition interest, whether or not such interest constitutes
allowed or allowable claims against the relevant obligor, in any bankruptcy,
reorganization or other insolvency proceeding), penalties, fees, costs,
indemnifications, reimbursements, repurchase, redemption, retirement or
defeasance obligations, damages and other liabilities and obligations payable
under the documentation governing, or otherwise relating to, any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated June 18,
1998 pursuant to which the Senior Preferred Stock and the Securities were
offered.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Controller or the
Secretary of the Company, or any other officer designated by the Board of
Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, the Chief Financial Officer, the Controller or any Treasurer of such
Person that shall comply with applicable provisions of this Indenture and is
reasonably acceptable to the Trustee if being delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee.
-16-
"Original Credit Agreement" means the referenced Credit Agreement
described in clause (i) of the definition of Credit Agreement dated on or as in
effect on or about the Issue Date, as the same may be amended, modified,
restated or supplemented from time to time, and any one replacement agreement or
facility existing at any time provided to refund, refinance, replace or renew
(including subsequent or successive refundings, refinancings, replacements and
renewals) the Original Credit Agreement; such replacement agreement or facility
to be designated by the Company and certified in an Officers' Certificate
delivered to the Trustee.
"Pari Passu Debt" means any Indebtedness (secured or unsecured) of the
Company that ranks pari passu in right of payment with the Securities.
"Permitted Holders" means Apollo Advisors, L.P. and any Affiliate
thereof.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Securities and this Indenture;
(ii) Indebtedness incurred pursuant to any Credit Agreements (and
the guarantees thereof) in an aggregate principal amount at any time
outstanding not to exceed $260,000,000;
(iii) all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date including under the Notes and
the Notes Indenture;
(iv) (a) Obligations under Interest Rate Agreements of the Company
covering Indebtedness of the Company or any of its Restricted Subsidiaries;
provided, however, that such Interest Rate Agreements are entered into to
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protect the Company and its Restricted Subsidiaries from fluctuations in
interest rates on Indebtedness otherwise permitted to be incurred hereunder
and not for speculative purposes to the extent the notional principal
amount of such Interest Rate Agreement does not exceed the principal amount
of the Indebtedness to which such Interest Rate Agreement relates and (b)
Indebtedness under Currency Agreements incurred by the Company in the
ordinary course of business to the extent that such obligations have been
entered into to protect against fluctuations in currency
-17-
exchange rates and not for speculative purposes; provided, that in the case
--------
of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and the
Restricted Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(v) Indebtedness of a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company for so long as such
Indebtedness is owned by the Company or a Restricted Subsidiary of the
Company, in each case with no Lien securing such Indebtedness held by a
Person other than the Company or a Restricted Subsidiary of the Company;
provided that if as of any date any Person other than the Company or a
--------
Restricted Subsidiary of the Company owns any such Indebtedness or holds a
Lien securing any such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness under
this clause (v);
(vi) Indebtedness of the Company to a Restricted Subsidiary of the
Company for so long as such Indebtedness is owned by a Restricted
Subsidiary of the Company, in each case with no Lien securing such
Indebtedness; provided that (a) any Indebtedness of the Company to any
--------
Restricted Subsidiary of the Company is subordinated, pursuant to a written
agreement, to the Company's Obligations under this Indenture and the
Securities, and (b) if as of any date any Person other than a Restricted
Subsidiary of the Company owns any such Indebtedness or any Person holds a
Lien securing any such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness under
this clause (vi);
(vii) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business, the
principal amount of which Indebtedness and Capitalized Lease Obligations
does not in the aggregate at any time exceed $15,000,000;
(viii) Acquired Indebtedness of any Restricted Subsidiaries, provided
that such Indebtedness was not incurred by a Person in connection with, or
in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company and provided further that after giving effect to
such incurrence or assumption of such Acquired Indebtedness the
Consolidated Fixed Charge Coverage Ratio of
-18-
the Company and its Restricted Subsidiaries, taken as whole, and the
Restricted Subsidiary making such acquisition independently, are at least
equal to 1:75:1 as calculated in accordance with Section 4.06;
(ix) Refinancing Indebtedness;
(x) Indebtedness solely in respect of performance bonds, surety
agreements, documentary letters of credit used for payment of goods
consistent with past practice, or other guarantees of performance (in each
case other than an obligation for the payment of borrowed money) incurred
in the ordinary course of business;
(xi) additional Indebtedness of the Company or any Restricted
Subsidiary in an aggregate principal amount not to exceed $100,000,000 at
any one time outstanding; and
(xii) Indebtedness incurred pursuant to any Foreign Credit
Agreements in an aggregate principal amount at any time outstanding not to
exceed $35,000,000 (and any guarantees thereof).
"Permitted Investments" means, for any Person, Investments made on or
after the Issue Date consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary thereof;
(ii) Cash Equivalents;
(iii) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person (or in all or substantially all of the business or
assets of a Person) if as a result of such Investment (a) such Person
becomes a Restricted Subsidiary of the Company, (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary thereof or (c) such business or assets are owned by
the Company or a Restricted Subsidiary;
(iv) Investments in Emerging Market Subsidiaries in the aggregate
amount after the Issue Date not to exceed $50,000,000;
-19-
(v) reasonable and customary loans made to employees not to exceed
$500,000 to any employee, and not to exceed $5,000,000 in the aggregate at
any one time outstanding;
(vi) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to the Company or a Restricted Subsidiary solely as
partial consideration for the consummation of an Asset Sale;
(vii) accounts receivable of the Company and its Restricted
Subsidiaries generated in the ordinary course of business;
(viii) Investments deemed to have been made as a result of the
acquisition of a Person that at the time of such acquisition held
instruments constituting Investments that were not acquired in
contemplation of the acquisition of such Person; and
(ix) additional Investments of the Company and its Restricted
Subsidiaries from time to time of an amount not to exceed $10,000,000.
Notwithstanding the foregoing, amounts available for Investments under
clauses (iv) and (ix) shall be increased by the aggregate amount of Returned
Investments received by the Company on or before the date of such Investment.
"Person" means an individual, partnership, corporation, unincorporated
organization, joint stock company, limited liability company, trust or joint
venture, or a governmental agency or political subdivision thereof.
"Plan" means any employee benefit plan, retirement plan, deferred
compensation plan, restricted stock plan, health, life, disability or other
insurance plan or program, employee stock purchase plan, employee stock
ownership plan, pension plan, stock option plan or similar plan or arrangement
of the Company or any Restricted Subsidiary of the Company, or any successor
plan thereof, and "Plans" shall have a correlative meaning.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other
-20-
Capital Stock of such Person with respect to dividends or redemption or upon
liquidation.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth on Exhibit A hereto.
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"Pro Rata Interest" of any Person in any other Person means a
fraction, the numerator of which is the amount of the equity or other ownership
interest in such other Person that are beneficially owned by such Person and its
Restricted Subsidiaries, and the denominator of which is the aggregate amount of
all equity or other ownership interests in such other Person that are
outstanding (for this purpose, equity or other ownership interests subject to
presently exercisable options, warrants or other rights to acquire such
interests shall be deemed to be outstanding and shall be included in both the
numerator and denominator). The Pro Rata Interest of any Person in any item of
income or expense or in the fair market value of the assets or liabilities of
any other Person means the amount obtained by multiplying (i) the amount of such
income or expense or the fair market value of the relevant asset or liability,
as the case may be, of such other Person by (ii) the Pro Rata Interest of such
Person in such other Person.
"Purchase Money Indebtedness" of any Person means any Indebtedness
incurred or assumed by a Person to finance the cost (including the cost of
construction) of an item of real or personal property or on the improvement of
such property, the principal amount of which Indebtedness does not exceed the
sum (i) 100% of such cost and (ii) reasonable fees and expenses of such Person
incurred in connection therewith and provided that such Indebtedness is incurred
or assumed within 90 days of the acquisition of, or improvement to, such
property; and provided that any Lien securing such Indebtedness does not extend
to any property or assets other than the real or personal property financed with
such Indebtedness.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"Recapitalization" means the transactions described as such in the
Offering Memorandum.
-21-
"Redeemable Dividend" means, for any dividend or distribution with
regard to Disqualified Capital Stock or Preferred Stock, the quotient of the
dividend or distribution divided by the difference between one and the maximum
statutory United States federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Disqualified Capital
Stock or Preferred Stock, as the case may be.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Reference Period" with regard to any Person means the four full
fiscal quarters of such Person ended on or immediately preceding any date upon
which any determination is to be made pursuant to the terms of the Securities or
this Indenture; provided, that if the Transaction Date in question is more than
90 days after the end of such Person's most recently completed fiscal year or
more than 45 days after the end of such Person's most recently completed fiscal
quarter (other than the fourth fiscal quarter), then "Reference Period" shall
mean the four full fiscal quarters ended on the last day of such fiscal year or
fiscal quarter, as the case may be, unless financial information for a later
period of four full fiscal quarters is available.
"Refinancing Indebtedness" means an extension, renewal, replacement,
refinancing or refunding of any Indebtedness which is Permitted Indebtedness or
is otherwise incurred in accordance with Section 4.06 (such Indebtedness is
collectively referred to as "Refinancing Indebtedness"); provided, that (1) the
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maximum principal amount of the relevant Refinancing Indebtedness (or, if such
Refinancing Indebtedness (if not a revolving credit or similar arrangement) does
not require cash payments prior to maturity or is otherwise issued at a
discount, the original issue price of such Refinancing Indebtedness) may not
exceed (x) the maximum principal amount of the relevant Indebtedness or
Disqualified Capital Stock being extended, renewed, replaced, refinanced or
refunded, plus unpaid interest, prepayment penalties, redemption premiums, fees,
expenses and other amounts owing with respect thereto, plus reasonable financing
fees and other reasonable out-of-pocket expenses incurred in connection
therewith (collectively, "Refinancing Costs"), or (y) if such Indebtedness or
Disqualified Capital Stock being extended, renewed, replaced, refinanced or
refunded was issued at an original issue discount, the original issue price,
plus amortization of the original issue discount
-22-
at the time of the incurrence of the Refinancing Indebtedness plus Refinancing
Costs, (2) if Pari Passu Debt or Disqualified Capital Stock, such Refinancing
Indebtedness has a Weighted Average Life to Maturity and a final maturity that
is equal to or greater than the Pari Passu Debt or Disqualified Capital Stock
being extended, renewed, replaced, refinanced or refunded at the time of such
extension, renewal, replacement, refinancing or refunding, (3) with respect to
Indebtedness or Disqualified Capital Stock of the Company or any Restricted
Subsidiaries, the relevant Refinancing Indebtedness shall rank in right of
payment with respect to the Securities to an extent no less favorable in respect
thereof to the holders of Securities than the Indebtedness or Disqualified
Capital Stock being refinanced, extended, renewed, replaced or refunded and (4)
Refinancing Indebtedness incurred by a Restricted Subsidiary of the Company
shall only be used to refinance outstanding Indebtedness or Disqualified Capital
Stock of such Restricted Subsidiary or any other Restricted Subsidiary of the
Company.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution (other than dividends or
distributions payable in Qualified Capital Stock) on shares of the Company's
Capital Stock other than the Senior Preferred Stock pursuant to the Certificate
of Designation as in effect on the Issue Date, (ii) the purchase, redemption,
retirement or other acquisition for value of any Capital Stock of the Company,
or any warrants, rights or options to acquire shares of Capital Stock of the
Company, other than the exchange of shares of Senior Preferred Stock for
Securities or other than through the exchange of such Capital Stock or any
warrants, rights or options to acquire shares of any class of such Capital Stock
for Qualified Capital Stock or warrants, rights or options to acquire Qualified
Capital Stock, (iii) the making of any principal payment on, or the purchase,
defeasance, redemption, prepayment, decrease or other acquisition or retirement
for value, prior to any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, of, any Subordinated Debt, (iv) the making of
any Investment (other than a Permitted Investment) (provided that the amount of
any Investment for purposes of this clause (iv) shall be calculated by
subtracting the amount of any applicable Returned Investments, if any, on any
such Investment), (v) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary on the basis of the fair market value of such Subsidiary
utilizing standard valuation methodologies and approved by the
-23-
Board of Directors or (vi) forgiveness of any Indebtedness of an Affiliate of
the Company to the Company or a Restricted Subsidiary; provided, however, that
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the term "Restricted Payment" does not include (a) any defeasance, redemption,
repurchase or other acquisition or retirement for value, in whole or in part, of
Indebtedness of the Company or the Senior Preferred Stock payable solely in
shares of Qualified Capital Stock or Subordinated Debt or (b) the repayment or
retirement of Subordinated Debt with the proceeds of Refinancing Indebtedness
incurred in accordance with clause (ix) of the definition of Permitted
Indebtedness. For purposes of determining the amount available to make
Restricted Payments pursuant to clause (a)(iii) of Section 4.07, the amount of
any Restricted Payments made pursuant to clauses (iv) or (v) above shall be
calculated after giving effect to any Returned Investments.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
promulgated under the Securities Act; provided that the Trustee shall be
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entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"Restricted Subsidiary" means a Subsidiary of the Company other than
an Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
(other than the Initial Emerging Market Subsidiaries) existing as of the Issue
Date. The Board of Directors of the Company may designate any Unrestricted
Subsidiary or any Person that is to become a Subsidiary as a Restricted
Subsidiary if immediately after giving effect to such action (and treating any
Acquired Indebtedness as having been incurred at the time of such action), the
Company could have incurred at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.06; provided that the Company
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may not designate any Emerging Market Subsidiary to become a Restricted
Subsidiary unless such designation complies with the requirements set forth in
the definition of "Emerging Market Subsidiary" relating thereto.
"Returned Investments" mean, with respect to all Investments made in
Emerging Market Subsidiaries or Unrestricted Subsidiaries pursuant to clause
(iv) or (ix), respectively, of the definition of "Permitted Investments" or
pursuant to clauses (iv) or (v) of the definition of "Restricted Payment," the
aggregate amount of (i) all payments made in respect of such Investments, other
than interest, dividends or other distributions not in the nature of a return or
repurchase of capital or a repayment of principal, that have been paid or
returned, without restriction, in cash to the Company and its Re-
-24-
stricted Subsidiaries and (ii) the Pro Rata Interest of the Company and its
Restricted Subsidiaries in the fair market value of the net assets of all
Emerging Market Subsidiaries or Unrestricted Subsidiaries, as the case may be,
that have been designated a Restricted Subsidiary of the Company after the Issue
Date, such fair market value to be determined as of the date of such
designation; provided, that amounts under the foregoing clause (ii) with respect
--------
to each such Emerging Market Subsidiary or Unrestricted Subsidiary, as the case
may be, shall not constitute Returned Investments to the extent that such amount
exceeds the total amount of Investments by the Company and its Restricted
Subsidiaries in such Emerging Market Subsidiary or Unrestricted Subsidiary, as
the case may be. Notwithstanding the foregoing, Returned Investments shall be
credited to the amounts available for Investments pursuant to clauses (iv) or
(ix) of the definition of "Permitted Investments" or Investments made pursuant
to the provisions of clauses (iv) or (v) of the definition of "Restricted
Payment," as the case may be, only to the extent that such Returned Investments
are in respect of Investments made pursuant to each such clause or provision.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Samsonite" means Samsonite Corporation, a Delaware corporation and
its successors.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Secondary Securities" shall have the meaning specified in each
Security.
"Securities" means the Company's 13 7/8% Senior Debentures due 2010,
including the Secondary Securities, if any, as amended or supplemented from time
to time in accordance with the terms hereof, that are issued pursuant to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Preferred Stock" means the 13 7/8% Senior Redeemable
Exchangeable Preferred Stock, liquidation preference
-25-
$1,000 per share of Samsonite, issued pursuant to the Certificate of
Designation.
"Significant Restricted Subsidiary" of the Company means any
Restricted Subsidiary of the Company which satisfies the requirements for being
a "significant subsidiary" as defined in Regulation S-X under the Securities Act
and the Exchange Act.
"Subordinated Debt" means Indebtedness of the Company or any
Subsidiary that is subordinated in right of payment by its express terms, or by
the express terms of any related document, to the Securities.
"Subsidiary", with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer trust accounts.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means (a) any Emerging Market Subsidiary,
(b) any Subsidiary of an Unrestricted Subsidiary or an Emerging Market
Subsidiary and (c) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary or an Emerging Market Subsidiary by a
resolution adopted by the Board of Directors of the Company; provided that a
--------
Subsidiary organized or acquired after the Issue Date may be so classified as an
Unrestricted Subsidiary only if such classification is in compliance with
Section 4.08 and; provided, further, that a Subsidiary may not be classified as
-------- -------
an Emerging Market Subsidiary unless such classification would be in compliance
with the provisions of the definition of "Emerging Market Subsidiary." The
Trustee shall be given
-26-
prompt notice by the Company of each resolution adopted by the Board of
Directors of the Company under this provision, together with a copy of each such
resolution so adopted.
"U.S. Government Obligations" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
--------
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
Section 1.02. Other Definitions.
------------------
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Acceleration Notice".............................. 6.02
"Affiliate Transaction"............................ 4.08
"Bankruptcy Law"................................... 6.01
-27-
"Business Day"..................................... 10.08
"Change of Control Offer".......................... 4.11
"Change of Control Payment Date"................... 4.11
"Change of Control Purchase Price"................. 4.11
"Covenant Defeasance".............................. 9.03
"Custodian"........................................ 6.01
"Event of Default"................................. 6.01
"Exchange Securities".............................. 2.02
"Global Securities"................................ 2.01
"Legal Defeasance"................................. 9.02
"Legal Holiday".................................... 10.08
"Offshore Physical Securities"..................... 2.01
"Paying Agent"..................................... 2.03
"Physical Securities".............................. 2.01
"Registrar"........................................ 2.03
"Required Filing Dates"............................ 4.02
"U.S. Physical Securities"......................... 2.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
-28-
Section 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(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; and
(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE SECURITIES
Section 2.01. Dating; Incorporation of Form in Indenture.
------------------------------------------
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A which is incorporated in and made part
of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company may use "CUSIP"
numbers in issuing the Securities. The Company shall approve the form of the
Securities. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby;
provided that, if any provision of any Security limits, qualifies, or conflicts
with the provisions of this Indenture, the provisions of this Indenture shall
govern.
The Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in Exhibit A ("Global
Securities"), de-
-29-
posited with the Trustee, as custodian for the Depository, duly executed by the
Company and authenticated by the Trustee as hereinafter provided and shall bear
the legend set forth on Exhibit B. The aggregate principal amount of any Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S may be issued in the form of certificated Securities in registered
form set forth in Exhibit A (the "Offshore Physical Securities"). Securities
offered and sold in reliance on any other exemption from registration under the
Securities Act other than as described in the preceding paragraph shall be
issued, and Securities offered and sold in reliance on Rule 144A may be issued,
in the form of certificated Securities in registered form in substantially the
form set forth in Exhibit A (the "U.S. Physical Securities"). The Offshore
Physical Securities and the U.S. Physical Securities are sometimes collectively
herein referred to as the "Physical Securities."
Section 2.02. Execution and Authentication.
----------------------------
The Securities shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of the Company.
Such signature may be either manual or facsimile.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. Such signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee or an authenticating agent shall authenticate Securities
from time to time and at any time for original issue in the aggregate principal
amount of up to $350,000,000 upon a Company Request. The aggregate principal
amount of Securities outstanding at any time may not exceed such amount except
as provided in Section 2.07 hereof.
Upon receipt of the Company Request, the Trustee shall authenticate an
additional series of Securities in an aggregate principal amount not to exceed
$350,000,000 for issu-
-30-
ance in exchange for all Securities previously issued pursuant to an exchange
offer registered under the Securities Act (a "Registered Exchange") or pursuant
to an exchange not registered under the Securities Act (collectively, "Exchange
Securities"). Exchange Securities may have such distinctive series designation
and "CUSIP" numbers as and such changes in the form thereof as are specified in
the Company Request referred to in the preceding sentence. Exchange Securities
issued pursuant to a Registered Exchange shall not bear the Private Placement
Legend.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same right as an Agent to deal with the Company or an Affiliate.
The Securities shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof;
provided, however, that Securities may be issued in denominations of less than
-------- -------
$1,000 (but not less than $1.00) upon the initial exchange of the Senior
Preferred Stock for the Securities such that each holder of Senior Preferred
Stock shall receive Securities in a principal amount equal to the full
liquidation preference of the Senior Preferred Stock on the date of issuance of
such Securities; provided, further, however, that Secondary Securities may be
-------- ------- -------
issued in denominations of less than $1,000 (but not less than $1.00).
Section 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Securities may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional paying agents.
Neither the Company nor any Affiliate may act as Paying Agent. The Company may
change any Paying Agent, Registrar or co-registrar without notice to any
Securityholder.
-31-
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the
Securities.
Section 2.04. Paying Agent To Hold Assets in Trust.
------------------------------------
On or before each due date of the principal of and interest on any
Securities, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest so becoming due. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee together with
a complete accounting of such sums. Upon doing so, the Paying Agent shall have
no further liability for such money.
Section 2.05. Securityholder 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
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each June 1 and December 1 in each year, and at such
other times as the Trustee may request in writing, a list as of the applicable
Record Date and in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
Section 2.06. Transfer and Exchange.
---------------------
When a Security is presented to the Registrar with a request to
register the transfer thereof, the Registrar shall register the transfer as
requested if the requirements of applicable law are met and, when Securities are
presented to the Registrar with a request to exchange them for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall make the exchange as requested provided that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder thereof
-32-
or his attorney duly authorized in writing. To permit transfers and exchanges,
upon surrender of any Security for registration of transfer at the office or
agency maintained pursuant to Section 2.03 hereof, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's request. Any
exchange or transfer shall be without charge, except that the Company may
require payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Sections 2.09,
3.06 or 8.05 hereof. The Trustee shall not be required to register transfers of
Securities or to exchange Securities for a period of 15 days before selection of
any Securities to be redeemed. The Trustee shall not be required to exchange or
register transfers of any Securities called or being called for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Section 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security presents evidence to the satisfaction of the Company and the
Trustee that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security if
the requirements of Section 8-405 of the New York Uniform Commercial Code as in
effect on the date of this Indenture are met. An indemnity bond shall be
required that is sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. In every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or the theft of such
Security and the ownership thereof. The Company and the Trustee may charge for
its expenses in replacing a Security. Every replacement Security is an
additional obligation of the Company.
Section 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding until the Company and the Trustee
-33-
receive proof satisfactory to each of them that the replaced Security is held by
a bona fide purchaser.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and accrued interest on
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
Subject to Section 10.06, a Security does not cease to be outstanding
solely because the Company or an Affiliate holds the Security.
Section 2.09. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall, upon receipt of a Company Request, authenticate
temporary Securities. Temporary Securities shall be substantially in the form,
and shall carry all rights, of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities presented to it.
Section 2.10. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee shall cancel and retain or, upon written request of the Company, may
destroy or return to the Company in accordance with its normal practice, all
Securities surrendered for transfer, exchange, payment or cancellation and if
such Securities are destroyed, deliver a certificate of destruction to the
Company unless the Company instructs the Trustee in writing to deliver the
Securities to the Company. Subject to Section 2.07 hereof, the Company may not
issue new Securities to replace Securities in respect of which it has previously
paid all principal, premium and interest accrued thereon, or delivered to the
Trustee for cancellation.
Section 2.11. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.01
-34-
hereof, to the persons who are Securityholders on a subsequent special record
date. The Company shall fix the special record date and payment date in a manner
satisfactory to the Trustee and provide the Trustee at least 20 days notice of
the proposed amount of default interest to be paid and the special payment date.
At least 15 days before the special record date, the Company shall mail or cause
to be mailed to each Securityholder at his address as it appears on the
Securities register maintained by the Registrar a notice that states the special
record date, the payment date (which shall be not less than five nor more than
ten days after the special record date), and the amount to be paid. In lieu of
the foregoing procedures, the Company may pay defaulted interest in any other
lawful manner satisfactory to the Trustee.
Section 2.12. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
and Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be.
Section 2.13. CUSIP Number.
------------
The Company in issuing the Securities may use a "CUSIP" number(s), and
if so, the Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, provided that any such notice may state
--------
that no representation is made as to the correctness or accuracy of the CUSIP
number(s) printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Company shall promptly inform the Trustee of any change in the CUSIP number(s).
Section 2.14. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit B.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture
-35-
with respect to any Global Security held on their behalf by the Depository, or
the Trustee as its custodian, or under the Global Security, and the Depository
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Security 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 Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.15. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor depositary is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from
the Depository to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall upon receipt of a written order
from the Company authenticate and make available for delivery, one or more
Physical Securities of like tenor and amount.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global Securities
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Securi-
-36-
ties, an equal aggregate principal amount of Physical Securities of authorized
denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b), (c) or (d) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(c) of Section 2.15, bear the Private Placement Legend.
(f) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
Section 2.15. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-
---------------------------------------------------------------
U.S. Persons. The following provisions shall apply with respect to the
------------
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is subsequent to a
date which is two years after the later of the date of issuance of such
Security and the last date on which the Company or any of its Affiliates
was the owner of such Security or (y) (1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto or (2) in the
case of a transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the Registrar's
procedures,
-37-
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the principal amount of a Global Security in an amount equal to
the principal amount of the beneficial interest in a Global Security to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and make available for delivery one or more Physical Securities of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Security
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 QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Global Security, upon receipt by the
Registrar of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
-38-
(c) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the circumstances contemplated by
paragraph (a)(i)(x) of this Section 2.15 exist, (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Security has been sold pursuant to an effective
registration statement under the Securities Act.
(d) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable notice to the Registrar.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Section 3.07,
(i) at least 60 days prior to the Redemption Date in the case of a partial
redemption, (ii) at least 45 days prior to the Redemption Date in the case of a
total redemption or (iii) during such other period as the Trustee may agree to,
the Company shall notify the Trustee in writing of the Redemption Date, the
principal amount of Securities to be redeemed and the redemption price, and
deliver to the Trustee an Officers' Certificate stating that such redemption
will comply with
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the conditions contained in Section 3.07 hereof, as appropriate.
Section 3.02. Selection by Trustee of Securities To Be Redeemed.
-------------------------------------------------
In the event that fewer than all of the Securities are to be redeemed,
the Trustee shall select the Securities to be redeemed, if the Securities are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Securities are not so listed, on either a pro rata basis or
by lot, or such other method as it shall deem fair and equitable; provided,
--------
however, that a redemption pursuant to Section 3.07(b) shall be made by the
-------
Trustee on a pro rata basis, unless such method is prohibited. The Trustee
--- ----
shall promptly notify the Company of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed. The Trustee may select for redemption portions
of the principal of Securities that have denominations larger than $1,000.
Securities and portions thereof the Trustee selects shall be redeemed in amounts
of $1,000 or whole multiples of $1,000. For all purposes of this Indenture
unless the context otherwise requires, provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
Section 3.03. Notice of Redemption.
--------------------
At least 30 days, and no more than 60 days, before a Redemption Date,
the Company shall mail, or cause to be mailed, a notice of redemption by first-
class mail to each Holder of Securities to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.03 hereof.
The notice shall identify the Securities to be redeemed (including the
CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date and upon surrender of such Security, a new Security or
Securities in
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principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date;
(7) the paragraph of the Securities pursuant to which the Securities
are being redeemed; and
(8) the aggregate principal amount of Securities that are being
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once the notice of redemption described in Section 3.03 is mailed,
Securities called for redemption become due and payable on the Redemption Date
and at the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Securities shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date, provided that if the Redemption Date is after a regular
--------
interest payment record date and on or prior to the Interest Payment Date, the
accrued interest shall be payable to the Holder of the redeemed Securities
registered on the relevant record date, and provided, further, that if a
-------- -------
Redemption Date is a Legal Holiday, payment shall be made on the next succeeding
Business Day and no interest shall accrue for the period from such Redemption
Date to such succeeding Business Day.
Section 3.05. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest on
all Securities
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to be redeemed on that date other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee
for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Securities called for redemption
shall have been made available in accordance with the preceding paragraph, the
Securities called for redemption will cease to accrue interest and the only
right of the Holders of such Securities will be to receive payment of the
redemption price of and, subject to the first proviso in Section 3.04, accrued
and unpaid interest on such Securities to the Redemption Date. If any Security
called for redemption shall not be so paid, interest will be paid, from the
Redemption Date until such redemption payment is made, on the unpaid principal
of the Security and any interest not paid on such unpaid principal, in each
case, at the rate and in the manner provided in the Securities.
Section 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for a Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
Section 3.07. Optional Redemption.
--------------------
(a) The Company may redeem the Securities, in whole or in part, at
any time on or after June 15, 2001 at the following redemption prices (expressed
as a percentage of principal amount), together, in each case, with accrued and
unpaid interest to the Redemption Date, if redeemed during the twelve-month
period beginning on June 15 of each year listed below:
Year Percentage
---- ----------
2001........................................ 110%
2002........................................ 108%
2003........................................ 106%
2004........................................ 104%
2005........................................ 102%
2006........................................ 101%
2007 and thereafter......................... 100%
(b) Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 35% of the original principal
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amount of Securities at any time and from time to time on or prior to June 15,
2001 at a redemption price equal to 112% of the aggregate principal amount so
redeemed, plus accrued and unpaid interest to the Redemption Date with the Net
Proceeds of one or more Equity Offerings; provided that after any such
--------
redemption at least $75,000,000 aggregate principal amount of Securities remain
outstanding immediately after the occurrence of any such redemption pursuant to
an Equity Offering and that any such redemption occurs on or prior to 90 days
after the receipt by the Company of the proceeds of each such Equity Offering.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities and this Indenture.
An installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
money designated for and sufficient to pay the installment or, if the interest
is to be paid in Secondary Securities, if the Trustee or the Paying Agent holds
on that date duly authenticated Secondary Securities in an aggregate principal
amount equal to such installment. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months and, for periods not involving a
full calendar month, the actual number of days elapsed (but not to exceed 30
days). The Company shall deliver written notice to the Trustee of any
Additional Interest owed.
The Company shall pay interest on overdue principal (including post-
petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Securities.
Section 4.02. SEC Reports.
-----------
(a) The Company will file with the SEC all information, documents and
reports to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act and will provide the Trustee and the Securityholders with copies of all such
information, documents and reports within 15 days of filing thereof with the
SEC; provided that if the Company is not required to
--------
-43-
file such information, documents or reports with the SEC, it will nonetheless
continue to furnish such information, documents and reports to the Trustee and
the Securityholders within 15 days of the date on which filing with the SEC
would have been required. The Company shall also comply with the provisions of
TIA (S) 314(a). 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).
(b) The Company will, upon request, provide to any Holder of
Securities or any prospective transferee of any such Holder any information
concerning the Company (including financial statements) necessary in order to
permit such Holder to sell or transfer Securities in compliance with Rule 144
and Rule 144A under the Securities Act.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead (as a defense or otherwise) or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal of, premium, if any,
and/or interest on the Securities as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 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 (one of the signers of
which shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company) stating that a review of the
activities of the Company and its Subsidiaries during such fiscal year or fiscal
quarter, as the case may be, has been made
-44-
under the supervision of the signing Officers with a view to determining whether
each has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all or such Defaults or Events of Default of which he
or she may have knowledge and what action each 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 Securities is prohibited or if such
event has occurred, a description of the event and what action each is taking or
proposes to take with respect thereto.
(b) The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, within five Business Days of any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05. Taxes.
-----
The Company shall, and shall cause each of its Subsidiaries to, pay
prior to delinquency all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate proceedings.
Section 4.06. Limitation on Incurrence of Additional Indebtedness.
---------------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary of
the Company to, directly or indirectly incur any Indebtedness (including
Acquired Indebtedness) other than Permitted Indebtedness. Notwithstanding the
foregoing limitations, the Company and its Restricted Subsidiaries may incur
Indebtedness if (a) after giving effect to the incurrence of such Indebtedness
and the receipt and application of the proceeds thereof, the Company's
Consolidated Fixed Charge Coverage Ratio (determined on a pro forma basis for
the last four full fiscal quarters of the Company for which financial
information is available at the date of determination) is at least equal to
1.75:1; but no Restricted Subsidiary may incur Indebtedness which is not
---
Permitted Indebtedness unless its Xxxxxxx-
-45-
dated Fixed Charge Coverage Ratio is at least equal to 2.75:1; provided,
--------
however, that 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 (on a pro forma basis, as
if the transaction had occurred at the beginning of the four quarter period) to
both the incurrence or assumption of such Acquired Indebtedness or such other
Indebtedness by the Company or such Restricted Subsidiary and the inclusion in
the Company's or such Restricted Subsidiary's Consolidated EBITDA of the
Consolidated EBITDA of the acquired Person, business, property or assets; and
provided, further, that in the event that the Consolidated EBITDA of the
-------- -------
acquired Person, business, property or assets reflects an operating loss, no
amounts shall be deducted from the Company's or such Restricted Subsidiary's
Consolidated EBITDA in making the determinations described above and (b) no
Default or Event of Default shall have occurred and be continuing at the time or
as a consequence of the incurrence of such Indebtedness.
The Company will not (i) issue any Pari Passu Debt or (ii) incur any
Indebtedness which by is terms (or by the terms of any agreement governing such
Indebtedness) is subordinate in right of payment to any of the Indebtedness of
the Company unless such Indebtedness is also by its terms (or by the terms of
any agreement governing such Indebtedness) made expressly subordinate in right
of payment to the Securities pursuant to subordination provisions that are
substantively identical to the subordination provisions of such Indebtedness (or
such agreement) that are most favorable to the holders of any other Indebtedness
of the Company
Section 4.07. Limitation on Restricted Payments.
---------------------------------
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment if at the
time of such Restricted Payment and immediately after giving effect thereto:
(i) any Default or Event of Default shall have occurred and be
continuing; or
(ii) the Company could not incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.06; or
-46-
(iii) the aggregate amount of Restricted Payments declared or
made after the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined by
the Board of Directors of the Company in good faith) exceeds the sum of (A)
50% of the Company's Consolidated Net Income for the period (taken as one
accounting period) commencing with the first full fiscal quarter of the
Company which commenced after the Issue Date to and including the fiscal
quarter of the Company ended immediately prior to the date of each
calculation (or in the event Consolidated Net Income is a deficit minus
100% of such deficit), plus (B) 100% of the aggregate Net Proceeds and the
fair market value of securities or other property received by the Company
from the issue or sale, after the date of original issuance of the
Securities, of Qualified Capital Stock (other than Capital Stock of the
Company issued to any Restricted Subsidiary of the Company) of the Company
or any Indebtedness or other securities of the Company convertible into or
exercisable or exchangeable for Qualified Capital Stock of the Company
which have been so converted or exercised or exchanged, as the case may be,
plus (C) $10,000,000, provided, that the amount of Restricted Payments
--------
permitted by this clause (C) shall not be reduced by any negative amounts
that occur under clause (A) above.
(b) Notwithstanding the foregoing, if no other Default or Event of
Default shall have occurred and be continuing or shall occur as a consequence
thereof, the provisions set forth in the immediately preceding paragraph will
not prohibit (A) payments with respect to the purchase or redemption of Capital
Stock or Subordinated Debt of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company or an Emerging Market Subsidiary) of, Qualified Capital Stock; (B)
payments in respect of any redemption, repurchase, acquisitions, cancellation or
other retirement for value of shares of Capital Stock of the Company or options,
stock appreciation or similar rights, in each case held by officers, directors
or employees of the Company or any of its Subsidiaries (or former officers,
directors or employees) (or their estates or beneficiaries under their estates)
or by an employee benefit plan, upon death, disability, retirement or
termination of employment of any such Person pursuant to the terms of any
employee benefit plan or any other agreement under which shares of Capital Stock
or stock appreciation or similar rights were issued or acquired, and the
purchase of shares of Capital Stock by the Company or any Restricted Subsidiary
for the purpose of con-
-47-
tributing such shares to any employee benefit plan (provided, that all such
---------
payments and purchases referred to in this clause (B) may not exceed $2,000,000
in any 12 month period after the Issue Date); (C) the payment of dividends
(whether in cash or otherwise) on the Senior Preferred Stock or the payment of
any other dividend within 60 days after the date of its declaration if such
dividend could have been paid on the date of its declaration in compliance with
the foregoing provisions; (D) any purchase or defeasance of Subordinated Debt
upon a Change of Control or an Asset Sale to the extent required by this
Indenture or other agreement or instrument pursuant to which such Subordinated
Debt was issued, but only if the Company in the case of a Change of Control, has
complied with its obligations under Section 4.11; (E) the consummation of a cash
tender offer by the Company for shares of Capital Stock of the Company in an
aggregate amount not exceeding $430,000,000 in connection with the
Recapitalization; (F) the exchange of Senior Preferred Stock for Securities or
the retirement of the Senior Preferred Stock in accordance with the optional and
mandatory redemption provisions thereof, in each case as provided in the
Certificate of Designation as in effect on the Issue Date; or (G) cash payments
(and/or issuance or delivery of any note, instrument, agreement or other
obligation providing for future cash payments) resulting from antidilution or
other adjustments made in connection with the Recapitalization to options to
purchase Capital Stock or restricted or unvested Capital Stock held by
employees, directors or former employees or directors of the Company or any of
its Subsidiaries, to the extent that such adjustments and cash payments are
approved by the Board of Directors. Each Restricted Payment made or paid in
accordance with this paragraph (b) except those made pursuant to clause (E),
clause (F) or clause (G) shall be counted (without duplication) for purposes of
computing amounts utilized for Restricted Payments pursuant to clause (a)(iii)
of the immediately preceding paragraph. No payments made or paid pursuant to
clause (C) of this paragraph shall be counted for purposes of computing amounts
utilized for Restricted Payments pursuant to clause (a)(iii) of the immediately
preceding paragraph to the extent such amount was already counted for such
purposes.
Section 4.08. Limitation on Transactions with Affiliates.
------------------------------------------
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with any Affiliate
of the Company (an "Affiliate Transaction") or extend,
-48-
renew, waive or otherwise modify the terms of any Affiliate Transaction entered
into prior to the Issue Date unless (i) such Affiliate Transaction is between or
among the Company and its Restricted Subsidiaries; or (ii) such Affiliate
Transaction is entered into in good faith and the terms of such Affiliate
Transaction are fair and reasonable to the Company or such Restricted
Subsidiary, as the case may be. In any Affiliate Transaction involving an amount
or having a value in excess of $5,000,000 which is not permitted under clause
(i) above, the Company must obtain a Board Resolution of the Board of Directors
determining that such Affiliate Transaction complies with clause (ii) above. In
transactions with a value in excess of $10,000,000 which are not permitted under
clause (i) above, the Company must obtain a written opinion as to the fairness
of such a transaction, from a financial point of view to the Company or such
Restricted Subsidiary, as the case may be, from an independent investment
banking firm.
(b) Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph will not apply to: (i) Restricted Payments that
are not prohibited under Section 4.07; (ii) transactions permitted by, and
complying with, the provisions described under Section 5.01; (iii) transactions
in the ordinary course of business (including expense advances) between the
Company or any of its Restricted Subsidiaries or Unrestricted Subsidiaries, on
the one hand, and any employee thereof, on the other hand; (iv) employment
contracts existing on the Issue Date and employment contracts approved by the
Board of Directors of the Company the terms of which are consistent with past
practice; (v) the granting and performance of registration rights for shares of
Capital Stock of the Company under a written registration rights agreement
approved by a majority of directors of the Company that are disinterested with
respect to such transaction; (vi) transactions with Affiliates solely in their
capacity as holders of Indebtedness or Capital Stock of the Company or any of
its Restricted Subsidiaries or Unrestricted Subsidiaries, where such Affiliates
are treated no more favorably than holders of such Indebtedness or such Capital
Stock generally; (vii) any Permitted Investments; (viii) reasonable fees and
compensation paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary of the Company as
determined in good faith by the Company's Board of Directors; (ix) transactions
exclusively between or among the Company and any of its Subsidiaries, provided
such transactions are not otherwise prohibited by this Indenture; (x) any
agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any
-49-
amendment thereto) or in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the holders of
the Securities in any material respect than the original agreement as in effect
on the Issue Date; (xi) any payment, issuance of securities or other payments,
awards or grants, in cash or otherwise, pursuant to, or the funding of,
employment arrangements and Plans approved by the Board of Directors; (xii) the
grant of stock options or similar rights to employees and directors of the
Company and its Subsidiaries (or any adjustment or amendment thereto) pursuant
to Plans and employment contracts and stock option, stock bonus, restricted
stock and similar agreements approved by the Board of Directors; (xiii) loans or
advances to officers, directors or employees of the Company or its Restricted
Subsidiaries not in excess of $5,000,000 at any one time outstanding; and (xiv)
transactions, including, without limitation, the repurchase of the Company's
Common Stock, entered into in connection with the Recapitalization and the
financing therefor as described in the Offering Memorandum.
Section 4.09. Payments for Consent.
--------------------
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Securities which so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
Section 4.10. Corporate Existence.
-------------------
Subject to Article 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
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and 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
-50-
the conduct of the business of the Company and its Restricted Subsidiaries,
taken as a whole.
Section 4.11. Change of Control.
-----------------
(a) The Company shall notify the Trustee within five Business Days
after the Company knows, or reasonably should know, of the occurrence of a
Change of Control. Within 15 Business Days after the Company knows or
reasonably should know, of the occurrence of each Change of Control, the Company
will make an offer to purchase (the "Change of Control Offer") the outstanding
Securities at a purchase price equal to 101% of the principal amount thereof
plus any accrued and unpaid interest thereon to the Change of Control Payment
Date (such applicable purchase price being hereinafter referred to as the
"Change of Control Purchase Price") in accordance with the procedures set forth
in this Section 4.11.
(b) The Company will within 15 days after it knows, or reasonably
should know, of the Change of Control (i) cause a notice of the Change of
Control Offer to be sent at least once to the Dow Xxxxx News Service or similar
business news service in the United States and (ii) send by first-class mail,
postage prepaid, to the Trustee and to each Holder of the Securities, at the
address appearing in the register maintained by the Registrar of the Securities,
a notice stating:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.11 and that all Securities tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 20 Business Days nor more
than 60 Business Days from the date such notice is mailed (the "Change of
Control Payment Date"));
(iii) that any Security not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Securities accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
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(v) that Holders accepting the offer to have their Securities
purchased pursuant to a Change of Control Offer will be required to
surrender the Securities to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day preceding the
Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their acceptance
if the Paying Agent receives, not later than the close of business on the
third Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Securities delivered for purchase,
and a statement that such Holder is withdrawing his election to have such
Securities purchased;
(vii) that Holders whose Securities are being purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered, provided that each
--------
Security purchased and each such new Security issued shall be in an
original principal amount in denominations of $1,000 and integral multiples
thereof;
(viii) a summary of any other procedures that a holder must
follow to accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(ix) the name and address of the Paying Agent.
(c) On the Change of Control Payment Date, the Company shall,
to the extent lawful, (i) accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Securities or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof tendered to the Company. The Paying Agent shall
promptly mail to each Holder of Securities so accepted payment in an amount
equal to the purchase price for such Securities, and the Company shall execute
and issue, and the Trustee shall promptly authenticate and mail to such Holder,
a new Security equal in principal amount to any unpurchased portion of the
Securities surrendered; provided that each such new Security shall be issued in
--------
an original principal amount in denominations of $1,000 and integral multiples
thereof.
-52-
(d) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Securities pursuant to a Change of Control Offer.
Section 4.12. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain an office or agency where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee as set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee set forth in Section 10.02 as such office of the Company.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets.
---------------
The Company will not, in a single transaction or series of related
transactions, consolidate with or merge with or into, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its assets to,
another Person unless (i) either (1) the Company is the survivor of such merger,
consolidation, sale, assignment, transfer, lease,
-53-
conveyance or other disposition, or (2) the surviving or transferee Person is a
corporation, partnership or trust organized and existing under the laws of the
United States, any state thereof or the District of Columbia and such surviving
or transferee Person expressly assumes by supplemental indenture all the
obligations of the Company under the Securities and this Indenture; (ii)
immediately after giving effect to such transaction and the use of proceeds
therefrom (on a pro forma basis, including any Indebtedness incurred or
anticipated to be incurred in connection with such transaction), the Company or
the surviving or transferee Person is able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.06; (iii) immediately after giving effect to such transaction (including any
Indebtedness incurred or anticipated to be incurred in connection with the
transaction) no Default or Event of Default has occurred and is continuing; and
(iv) the Company has delivered to the Trustee an Officers' Certificate and
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease or other disposition complies with this Indenture,
and that all conditions precedent in this Indenture relating to such transaction
have been satisfied. For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one or
more Restricted Subsidiaries the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company will be deemed to
be the transfer of all or substantially all of the properties and assets of the
Company. Notwithstanding the foregoing clauses (ii) and (iii), but subject to
clauses (i) and (iv) thereof, the Company may consolidate with, merge into or
transfer all or part of its properties and assets to any Restricted Subsidiary
so long as all assets of the Company immediately prior to such transaction are
owned by such Restricted Subsidiary immediately after the consummation thereof.
Section 5.02. Successor Person Substituted.
----------------------------
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
above, the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be
relieved of all
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obligations and covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" occurs if
(1) there is a failure to pay the principal or premium, if any, on
any Securities when such principal becomes due and payable, at maturity,
upon acceleration, redemption or otherwise, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(2) there is a failure to pay interest on any Security when the same
becomes due and payable and such Default continues for a period of 30 days,
whether or not such payment is prohibited by the provisions of Article 10
hereof;
(3) the Company fails to make a Change of Control Offer if such offer
is required by the provisions of Section 4.11 or fails to purchase
Securities from holders who elect to have such Securities purchased
pursuant to the Change of Control Offer;
(4) the Company defaults in the observance or performance of any other
covenant or agreement in the Securities or this Indenture which default
continues for a period of 60 days after the Company receives written notice
thereof specifying the default from the Trustee or the Holders of at least
25% in aggregate principal amount of outstanding Securities;
(5) (A) the Company fails to pay at the final stated maturity (after
giving effect to any extension thereof) the principal amount of any
Indebtedness, or the final stated maturity of any Indebtedness is
accelerated, if the aggregate principal amount of such Indebtedness,
together with the aggregate principal amount of any other Indebtedness in
default for failure to pay principal at the final stated maturity (after
giving effect to any extensions thereof) or which has been accelerated,
aggregates
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$50,000,000 or more at any time, in each case, after a 30-day period during
which such default shall not have been cured or such acceleration rescinded
or (B) the Company fails to make any scheduled payment of principal or
interest on any Indebtedness the outstanding principal amount of which
aggregate $50,000,000 or more, after a 180-day period during which such
default shall not have been cured;
(6) the Company or any Significant Restricted Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) admits in writing its inability to pay its debts generally as
they become due; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Restricted Subsidiary or for all or substantially all of the property of
the Company or any Significant Restricted Subsidiary, or
(C) orders the liquidation of the Company or any Significant
Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, as-
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signee, liquidator or similar official under any Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Securities of
any Default (except in payment of principal or premium, if any, or interest on
the Securities) if the Trustee considers it to be in the best interest of the
Holders of the Securities to do so.
Section 6.02. Acceleration.
------------
Upon the happening of any Event of Default specified in Section 6.01,
the Trustee may, and the Trustee upon the request of 25% in principal amount of
the Securities shall or the Holders of at least 25% in aggregate principal
amount of outstanding Securities may, declare the principal of and accrued but
unpaid interest, if any, on all the Securities to be due and payable by notice
in writing to the Company and the Trustee specifying the respective Event of
Default and that it is a "notice of acceleration" (the "Acceleration Notice"),
and the same shall become immediately due and payable. If an Event of Default
described under clauses (6) or (7) of Section 6.01 with respect to the Company
occurs and is continuing, then such amount will ipso facto become and be
----------
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of Securities; provided, however, that at any time
-------- -------
after a declaration of acceleration with respect to the Securities, the Holders
of a majority in principal amount of the Securities then outstanding (by notice
to the Trustee) may rescind and cancel such declaration and its consequences if
(i) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction, (ii) all existing Events of Default have been cured or
waived except nonpayment of principal or interest on the Securities that has
become due solely by such declaration of acceleration, (iii) to the extent the
payment of such interest is lawful, interest (at the same rate specified in the
Securities) on overdue installments of interest and overdue principal which has
become due otherwise than by such declaration of acceleration has been paid,
(iv) the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its expenses, disbursements and advances and (v) in the event of
the cure or waiver of a Default or Event of Default (with respect to the
Company) of the type described in Section 6.01(6) or (7), the Trustee has
received an Officers' Certificate and an Opinion of Counsel that such Default or
Event of Default has been cured or waived. The Holders of a majority in
principal amount of the Securities may waive any existing Default or Event of
Default under this
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Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Securities.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Securities or
to enforce the performance of any provision of the Securities or this Indenture
and may take any necessary action requested of it as Trustee to settle,
compromise, adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults and Events of Default.
---------------------------------------------
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in principal amount of the Securities then outstanding have the right
to waive any existing Default or Event of Default or compliance with any
provision of this Indenture or the Securities. 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 Event of Default or
impair any right consequent thereto.
Section 6.05. Control by Majority.
-------------------
The Holders of a majority in principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder not taking part in such direction, and the Trustee shall have the
right to decline to follow
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any such direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or if the Trustee in good faith
shall, by a Trust Officer, determine that the proceedings so directed may
involve it in personal liability; provided that the Trustee may take any other
--------
action deemed proper by the Trustee which is not inconsistent with such
direction.
Section 6.06. Limitation on Suits.
-------------------
Subject to Section 6.07 below, a Securityholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Securities
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of, or premium, if any,
and interest of the Security on or after the respective due dates expressed in
the Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, is (subject to Section 10 hereof) absolute and
unconditional and shall not be impaired or affected without the consent of such
Holder.
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Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company (or any other obligor on the Securities) for the whole amount of
unpaid principal and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate then
borne by the Securities, and such further amounts 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 may 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
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other securities
or property payable or deliverable upon the conversion or exchange of the
Securities or upon any such claims and to distribute the same after deduction of
its charges and expenses to the extent that any such charges and expenses are
not paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Securityholder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, 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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
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Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest as to each,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders 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 Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees 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 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10%
in principal amount of the Securities then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent man would
exer-
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cise or use under the same circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) 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.
(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:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 and 6.05 hereof.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity satisfactory to
it against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, paragraphs (a),
(b), (c) and (d) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
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(f) The Trustee is under no obligation and may refuse to perform any
duty or exercise any right or power under this Indenture at the request or
direction of any holders of the Securities unless such holders have offered the
Trustee reasonable indemnity or security against any loss, liability or expense.
(g) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Money or assets held in trust by the Trustee need not be segregated
from other funds or assets except to the extent required by the law.
Section 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may consult
with counsel, require an Officers' Certificate or an Opinion of Counsel, or
both, which shall conform to the provisions of Section 10.05 hereof. The
Trustee shall be protected and shall not be liable for any action it takes
or omits to take in good faith and in reasonable reliance on such
certificate or opinion, except if such action violates the express
provisions of this Indenture.
(3) The Trustee may act through agents and attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed by it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith
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and in accordance with the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may make loans to, accept deposits from,
perform services for or otherwise deal with the Company, or any Affiliates
thereof, with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, shall be subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the sale of Securities
or any money paid to the Company pursuant to the terms of this Indenture and it
shall not be responsible for any statement of the Company in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
Section 7.05. Notice of Defaults.
------------------
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of, or premium, if any, or interest on any Security the Trustee
may withhold the notice if and so long as the board of directors of the Trustee,
the executive committee or any trust committee of such board and/or any of its
Trust Officers in good faith determine(s) that withholding the notice is in the
interests of the Securityholders.
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Section 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S) 313(a), within 60 days after May 15 of any
year, commencing the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA (S) 313(a). The Trustee also shall comply with TIA (S)
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA (S) 313(c) and TIA (S) 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all registered Holders of Securities, as the names and
addresses of such Holders appear on the Registrar's books; and
(2) to such Holder of Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall promptly notify the Trustee when the Securities are
listed on any securities exchange.
Section 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its services hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee, any predecessor
Trustee for, and hold them harmless against, any and all loss, damage, claim,
liability or reasonable expense, including taxes (other than taxes based on the
income of the Trustee) incurred by it in connection with the acceptance or
performance of its duties under this Indenture including the reasonable costs
and expenses of enforcing this Indenture against the Company (including with
respect to this Sec-
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tion 7.07) and of defending itself against any claim (whether asserted by any
Securityholder or the Company) or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee shall notify the Company in writing
promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder except to the extent the
Company is prejudiced thereby.
Notwithstanding the foregoing, the Company need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred
by the Trustee through its negligence or bad faith. To secure the payment
obligations of the Company in this Section 7.07, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the
Trustee except such money or property held in trust to pay principal of and
interest on particular Securities. The Trustee's right to receive payment of
any amounts due under this Section 7.07 shall not be subordinate to any other
liability or indebtedness of the Company and the Securities shall be subordinate
(to the extent provided in Section 6.10) to the Trustee's right to receive such
payment. The obligations of the Company under this Section 7.07 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall survive the resignation or removal of any Trustee, any rejection
or termination under any Bankruptcy Law and the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
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unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee
or its property;
(4) the Trustee otherwise becomes incapable of acting; or
(5) a successor corporation becomes successor Trustee pursuant to
Section 7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, 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. A successor Trustee shall mail
notice of its succession to each Securityholder. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
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Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
--------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA (S) 310(b), including the provision in (S) 310(b)(1); provided, however,
-------- -------
that there shall be excluded from the operation of TIA (S) 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in TIA (S) 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company.
--------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311 (b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution, and the Trustee
may amend or supplement this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
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(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not materially and adversely affect the rights of
any Securityholder; or
(5) to make any other change that does not, in the opinion of the
Trustee, materially and adversely affect the rights of any Securityholder.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained; provided, however, that the Company has
-------- -------
delivered to the Trustee an Officers' Certificate stating that such amendment or
supplement complies with the provisions of this Section 8.01 and; provided,
--------
further, that the Trustee shall not be obligated to enter into any such
-------
supplemental indenture which adversely affects its own rights, duties or
immunities under this Indenture.
Section 8.02. With Consent of Holders.
-----------------------
Subject to the rights of holders of Senior Preferred Stock, if any,
provided for in paragraph (f)(ii)(D) of the Certificate of Designation, the
Company and the Trustee may modify or supplement this Indenture or the
Securities with the written consent of the Holders of not less than a majority
in aggregate principal amount of the outstanding Securities without notice to
any Securityholder. The Holders of not less than a majority in aggregate
principal amount of the outstanding Securities may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities without notice to any Securityholder. Subject to the rights of
holders of Senior Preferred Stock, if any, provided for in paragraph (f)(ii)(D)
of the Certificate of Designation, without the consent of each Securityholder
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver to this Indenture or the Securities;
(2) reduce the rate of or change the time for payment of interest
on any Security;
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(3) reduce the principal of or premium on or change the stated
maturity of any Security;
(4) make any Security payable in money other than that stated in
the Security or change the place of payment from New York, New York;
(5) change the amount or time of any payment required by the
Securities or reduce the premium payable upon any redemption of the
Securities or change the time before which no redemption may be made;
(6) waive a default in the payment of the principal of, or interest
on, or redemption payment with respect to, any Security (including any
obligation to make a Change of Control Offer or modify any of the
provisions or definitions with respect to such offer);
(7) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
(8) affect the ranking of the Securities in a manner adverse to the
Holders; or
(9) take any other action otherwise prohibited by this Indenture to
be taken without the consent of each Holder affected thereby.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon receipt of a Company Request, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Securityholders as aforesaid and upon receipt by
the Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of
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any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Security or portion thereof, and of any Security issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the
consent is not made on any such Security. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Security or portion of a Security, if
the Trustee receives the notice of revocation before the date the amendment,
supplement, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Securityholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.02 hereof. In that
case the amendment, supplement, waiver or other action shall bind each Holder of
a Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security.
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Section 8.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement, or waiver changes the terms of a
Security, the Trustee may request the Holder of the Security to deliver it to
the Trustee. In such case, the Trustee shall place an appropriate notation on
the Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a new
security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Security shall not affect the validity and effect of
such amendment supplement or waiver.
Section 8.06. Trustee To Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to (and to the extent provided in) Section 7.01 hereof,
shall be fully protected in relying upon an Officers' Certificate and an Opinion
of Counsel stating that such amendment, supplement or waiver is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms (subject to customary enforceability exceptions).
The Company may not sign an amendment or supplement until the Board of Directors
of the Company approves it. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
----------------------
The Company may terminate its obligations under the Securities and
this Indenture, except the obligations referred to in the last paragraph of this
Section 9.01, if there shall have been cancelled by the Trustee or delivered to
the Trustee for cancellation all Securities theretofore authenticated and
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delivered (other than any Securities that are asserted to have been destroyed,
lost or stolen and that shall have been replaced as provided in Section 2.07
hereof) and the Company has paid all sums payable by it hereunder or deposited
all required sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Securities and this
Indenture except for those surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall survive.
Section 9.02. Legal Defeasance.
----------------
The Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Securities on the date the conditions set
forth in Section 9.04 below are satisfied (hereinafter, "Legal Defeasance").
For this purpose, such Legal Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall, subject to Section 9.06 hereof, execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Securities to receive solely from the trust funds
described in Section 9.04 hereof and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07,
2.08 and 4.12 hereof, (C) the rights, powers, trusts, duties, and immunities of
the Trustee hereunder (including claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof) and (D) this Article 9. Subject to compliance
with this Article 9, the Company may exercise its option under this Section 9.02
with respect to the Securities notwithstanding the prior exercise of its option
under Section 9.03 below with respect to the Securities.
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Section 9.03. Covenant Defeasance.
-------------------
At the option of the Company, pursuant to a Board Resolution, the
Company shall be released from its obligations under Section 4.02, Sections 4.05
through 4.08 and Section 4.11 hereof, inclusive, and clause (ii) of Section 5.01
hereof with respect to the outstanding Securities on and after the date the
conditions set forth in Section 9.04 hereof are satisfied (hereinafter,
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
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 specified Section or
portion thereof, whether directly or indirectly by reason of any reference
elsewhere herein to any such specified Section or portion thereof or by reason
of any reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities shall be unaffected thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Securities:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of,
premium, if any, and accrued interest on the outstanding Securities at the
maturity date of such principal, premium, if any, or interest, or on dates
for payment and redemption of such principal, premium, if any, and interest
selected in accor-
-74-
dance with the terms of this Indenture and of the Securities;
(2) no Event of Default or Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit, or shall
have occurred and be continuing at any time during the period ending on the
91st day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any
Bankruptcy Law applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute default under any other
agreement or instrument to which the Company is a party or by which it is
bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended;
(6) in the case of an election under Section 9.02 above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there has been
a change in any applicable Federal income tax law with the effect that, and
such opinion shall confirm that, the Holders of the outstanding Securities
or persons in their positions will not recognize income, gain or loss for
Federal income tax purposes solely as a result of such Legal Defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner, including as a result of prepayment, and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an
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Opinion of Counsel to the effect that the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to
Federal income tax 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;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof (as
the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee all amounts then
due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust; Other
Miscellaneous Provisions.
-------------------------
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 9.04 hereof or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee
-76-
or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 9 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 9.01 hereof; provided, however, that if the Company has made any
-------- -------
payment of principal of, premium, if any, or accrued interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Company and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08. Moneys Held by Trustee.
----------------------
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of, or premium, if any,
or interest on any Secu-
-77-
rity that are not applied but remain unclaimed by the Holder of such Security
for two years after the date upon which the principal of, or premium, if any, or
interest on such Security shall have respectively become due and payable shall
be repaid to the Company upon Company Request, or if such moneys are then held
by the Company in trust, such moneys shall be released from such trust; and the
Holder of such Security entitled to receive such payment shall thereafter, as an
unsecured general creditor, look only to the Company for the payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided, however, that the Trustee or any such
-------- -------
Paying Agent, before being required to make any such repayment, may, at the
expense of the Company, either mail to each Securityholder affected, at the
address shown in the register of the Securities maintained by the Registrar
pursuant to Section 2.03 hereof, or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York,
New York, a 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
mailing or publication, any unclaimed balance of such moneys then remaining will
be repaid to the Company. After payment to the Company or the release of any
money held in trust by the Company, Securityholders entitled to the money must
look only to the Company for payment as general creditors unless applicable
abandoned property law designates another person.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 10.02. Notices.
-------
Any notice or communication shall be given in writing and delivered in
person, sent by telecopier, facsimile, telex, delivered by overnight commercial
courier service or mailed by
-78-
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to the Company:
Samsonite Corporation
00000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer with
a copy to General Counsel
Facsimile: (000) 000-0000
Copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Such notices or communications shall be sufficiently given if so given
within the time prescribed in this Indenture.
The Company or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered, if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and upon receipt if sent by overnight commercial courier service or
if sent by registered or certified mail, postage prepaid (except that a notice
of change of address shall not be deemed to have been given until actually
received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
-79-
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 10.03. Communications by Holders with Other Holders.
--------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
Section 10.04. 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:
(1) an Officers' Certificate (which shall include the statements
set forth in Section 10.05 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 10.05 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate and Opinion.
--------
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
-80-
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
Notwithstanding anything to the contrary contained herein, any
opinion provided hereunder in connection with the issuance or authorization of
Securities may make certain customary assumptions.
Section 10.06. When Treasury Securities Disregarded.
------------------------------------
In determining whether the Holders of the required aggregate
principal amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or by any Affiliate of the Company
shall be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not
be disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or any Affiliate of the Company.
Section 10.07. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or meetings of
Securityholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
-81-
Section 10.08. Business Days; Legal Holidays.
-----------------------------
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 10.09. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
Section 10.10. No Adverse Interpretation of Other Agreements.
-----------
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 10.11. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Securities.
Section 10.12. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee, any additional
trustee and any Paying Agents in this Indenture shall bind its successor.
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Section 10.13. Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 10.14. Table of Contents, Headings, etc.
--------------------------------
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15. Separability.
------------
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Securities 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.
-83-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date and year first written above.
[ ]
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: _____________________________
Name:
Title:
EXHIBIT A
---------
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AND SUBJECT TO COMPLIANCE
WITH OTHER APPLICABLE LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE
PROVIDED UNDER RULE 144(K) (OR ANY SUCCESSOR PROVISION THEREOF) AS
PERMITTING THE RESALE BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT
RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE
RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
OTHERWISE IN COMPLIANCE WITH OTHER APPLICABLE LAWS, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THE LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
A-1
NO. _____ CUSIP NO.
[ ]
13 7/8% Senior Debenture due 2010
$
[ ], a [ ] corporation (the
"Company"), for value received, promises to pay to or
registered assigns the principal sum of Dollars, on June 15, 2010.
Interest Payment Dates: March 15, June 15, September 15 and December
15
Record Dates: March 1, June 1, September 1 and December 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
[ ]
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
A-2
Trustee's Certificate of Authentication
This is one of the 13 7/8% Senior Debentures due 2010 referred to in
the within-mentioned Indenture.
Dated:
UNITED STATES TRUST COMPANY OF
NEW YORK,
as Trustee
By: _________________________
Authorized Signatory
A-3
(REVERSE OF SECURITY)
13 7/8% Senior Debentures due 2010
1. Interest. [ ], a [ ]
--------
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate per annum shown above. Interest on the Securities
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from the date of original issuance of the Securities.
The Company will pay interest quarterly in arrears on each Interest Payment
Date, commencing on the first Interest Payment Date after the date of original
issuance of the Securities. Interest will be computed on the basis of a 360-day
year of twelve 30-day months and, for periods not involving a full calendar
month, the actual number of days elapsed but not to exceed 30 days.
Notwithstanding anything herein to the contrary, on each Interest
Payment Date through and including June 15, 2003, the entire amount of the
interest payment on the Securities may be paid, at the option of the Company, in
additional Securities ("Secondary Securities") (valued at 100% of the principal
amount thereof). The Company may, at its option, pay cash in lieu of issuing
any Secondary Security to the extent the principal amount such Secondary
Security is not an integral multiple of $1,000. The Company shall notify the
Trustee of the Company's election to pay interest in Secondary Securities not
less than 10 days prior to the Record Date for an Interest Payment Date. On
each such Interest Payment Date, the Trustee shall authenticate Secondary
Securities for original issuance to each holder of Securities on the preceding
Record Date, as shown on the Security Register, in the amount required to pay
such interest.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate borne by the Securities to the extent
lawful.
2. Method of Payment. The Company shall pay interest on the
-----------------
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and inter-
A-4
est (to the extent not paid in Secondary Securities) in money of the United
States that at the time of payment is legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Company may pay principal and
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, UNITED STATES TRUST
--------------------------
COMPANY OF NEW YORK, a bank and trust company organized under the New York
Banking Law (the "Trustee"), will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to the Holders
of the Securities. Neither the Company nor any of its Affiliates may act as
Paying Agent but may act as registrar or co-registrar.
4. Indenture; Restrictive Covenants. The Company issued this
--------------------------------
Security under an Indenture dated as of [ ], [ ] (the "Indenture")
between the Company and the Trustee. The terms of this Security include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb) as in effect on
the date of the Indenture. This Security is subject to all such terms, and the
Holder of this Security is referred to the Indenture and said Trust Indenture
Act for a statement of them. All capitalized terms in this Security, unless
otherwise defined, have the meanings assigned to them by the Indenture.
The Securities are general unsecured obligations of the Company
limited to $350,000,000 aggregate principal amount. The Indenture imposes
certain restrictions on, among other things, the incurrence of indebtedness,
mergers and sale of assets, the payments of dividends on, or the repurchase of,
capital stock of the Company and its subsidiaries, certain other restricted
payments by the Company and its subsidiaries, certain transactions with, and
investments in, its affiliates, and a provision regarding change-of-control
transactions.
5. Optional Redemption. The Company may redeem the Securities, in
-------------------
the manner set forth in Section 3.07 of the Indenture.
6. Notice of Redemption. Notice of redemption will be mailed at
--------------------
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of an Equity Offering, the
Company shall send the redemption notice not later than 90 days after the
consummation of such Equity Offering. Securities in denominations larger than
$1,000 may be redeemed in part.
A-5
7. Offers to Purchase. The Company is required to make an offer to
------------------
purchase Securities upon occurrence of a Change of Control in accordance with
procedures set forth in the Indenture.
8. Denominations; Transfer; Exchange. The Securities are in
---------------------------------
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000; provided, however, that Secondary Securities and Securities
-------- -------
issued in exchange for the Senior Preferred Stock may be issued in denominations
of less than $1,000 (but not less than $1.00). A Holder shall register the
transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities during a period beginning 15 days before the mailing of a redemption
notice for any Securities or portions thereof selected for redemption.
9. Persons Deemed Owners. The registered Holder of this Security
---------------------
shall be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal, premium
---------------
or interest on any Security remains unclaimed for two years, the Trustee and the
Paying Agent will pay the money back to the Company at its request. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an "abandoned property" law designates another Person.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
--------------------------------
the Indenture or the Securities may be modified, amended or supplemented by the
Company and the Trustee with the consent of the Holders of at least a majority
in principal amount of the Securities then outstanding and any existing default
or compliance with any provision may be waived in a particular instance with the
consent of the Holders of a majority in principal amount of the Securities then
outstanding. Without the consent of Holders, the Company and the Trustee may
amend the Indenture or the Securities or supplement the Indenture for certain
specified purposes including, without limitation, providing for uncertificated
Securities in addition to certificated Securities, and curing any ambiguity,
defect or inconsistency, or making any other change that does not materially and
adversely affect the rights of any Holder.
12. Successor Entity. When a successor corporation assumes all the
----------------
obligations of its predecessor under the Secu-
A-6
rities and the Indenture and immediately before and thereafter no Default exists
and certain other conditions are satisfied, the predecessor corporation will be
released from those obligations.
13. Defaults and Remedies. Events of Default are set forth in the
---------------------
Indenture. Upon the happening of any Event of Default specified in Section
6.01, the Trustee may, and the Trustee upon the request of 25% in principal
amount of the Securities shall or the Holders of at least 25% in aggregate
principal amount of outstanding Securities may, declare the principal of and
accrued but unpaid interest, if any, on all the Securities to be due and payable
by notice in writing to the Company and the Trustee specifying the respective
Event of Default and that it is a "notice of acceleration" (the "Acceleration
Notice"), and the same shall become immediately due and payable. If an Event of
Default described under clauses (6) or (7) of Section 6.01 with respect to the
Company occurs and is continuing, then such amount will ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of Securities; provided, however, that at any time
-------- -------
after a declaration of acceleration with respect to the Securities, the Holders
of a majority in principal amount of the Securities then outstanding (by notice
to the Trustee) may rescind and cancel such declaration and its consequences if
(i) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction, (ii) all existing Events of Default have been cured or
waived except nonpayment of principal or interest on the Securities that has
become due solely by such declaration of acceleration, (iii) to the extent the
payment of such interest is lawful, interest (at the same rate specified in the
Securities) on overdue installments of interest and overdue principal which has
become due otherwise than by such declaration of acceleration has been paid,
(iv) the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its expenses, disbursements and advances and (v) in the event of
the cure or waiver of a Default or Event of Default (with respect to the
Company) of the type described in Section 6.01(6) or (7), the Trustee has
received an Officers' Certificate and an Opinion of Counsel that such Default or
Event of Default has been cured or waived. The Holders of a majority in
principal amount of the Securities may waive any existing Default or Event of
Default under this Indenture, and its consequences, except a default in the
payment of the principal of or interest on any Securities.
14. Trustee Dealings With the Company. The Trustee under the
---------------------------------
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services
A-7
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates as if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee,
--------------------------
stockholder or incorporator, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
16. Defeasance and Covenant Defeasance. The Indenture contains
----------------------------------
provisions for defeasance of the entire indebtedness on this Security (pursuant
to Section 9.02 of the Indenture) and for defeasance of certain covenants in the
Indenture (pursuant to Section 9.03 of the Indenture) upon compliance by the
Company with certain conditions set forth in the Indenture.
17. Abbreviations. Customary abbreviations may be used in the name
-------------
of a Holder of a Security or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(Uniform Gifts to Minors Act).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP Numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders of the
Securities. No representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
19. Indenture Controls. If any provision of this Note limits,
------------------
qualifies or conflicts with the provisions of the Indenture, the provisions of
the Indenture shall control.
20. GOVERNING LAW. THE INDENTURE AND THE SECURITIES SHALL BE
-------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES.
A-8
THE COMPANY WILL FURNISH TO ANY HOLDER OF A SECURITY UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE, REQUESTS MAY BE MADE TO:
-------
SAMSONITE CORPORATION, 00000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: General Counsel.
A-9
ASSIGNMENT
----------
I or we assign to PLEASE INSERT SOCIAL SECURITY OR TAX I.D. NUMBER
____________________________
_____________________________________________
(please print or type name and address)
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer the Security on the books
of the Company with full power of substitution in the premises.
Date: ____________________
NOTICE: The signature on this assignment must correspond with the name as it
appears upon the face of the within Security in every particular without
alteration or enlargement or any change whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: _______________________________________
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 4.11 of the Indenture, check the
box:
- Section 4.11
If you want to have only part of the Security purchased by the Company
pursuant to Section 4.11 of the Indenture, state the amount you elect to have
purchased:
$_________________
Date: ____________
Your Signature: ____________________________________
(Sign exactly as your name appears on the face of this Security)
___________________________
Signature Guaranteed
A-11
EXHIBIT B
---------
FORM OF LEGEND FOR GLOBAL SECURITIES
------------------------------------
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK
CORPORATION) ("DTC") 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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
B-1
EXHIBIT C
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
___________, ____
Re: [ ]
(the "Company") 13 7/8%
Senior Debentures
due 2010 (the "Debentures")
---------------------------
Dear Sirs:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Debentures, we confirm that:
1. We understand that any subsequent transfer of the Debentures is
subject to certain restrictions and conditions set forth in the Indenture
dated as of June 24, 1998 relating to the Debentures and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the
Debentures except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Debentures have not been registered under
the Securities Act, and that the Debentures may not be offered or sold
except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Debentures within two years after the
original issuance of the Debentures, we will do so only (A) to the Company
or any subsidiary thereof, (B) pursuant to a registration statement which
has been declared effective under the Securities Act, (C) for so long as
the Debentures are eligible for resale pursuant to Rule 144(A) ("Rule
144A") to a person we reasonably believe to be a "qualified institutional
buyer" as defined in Rule 144A that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given that
the transfer is being made in reliance on Rule 144A, (D) outside the United
States to non-U.S. persons in compliance with Rule 904 of Regulation S
under the Securities Act, or (E) pursuant to another available exemption
from the registration requirements of the Securities Act and otherwise in
compliance with other applicable laws, and we further agree to pro
C-1
vide to any person purchasing any of the Debentures from us a notice
advising such purchaser that resales of the Debentures are restricted as
stated herein.
3. We understand that, on any proposed resale of any Debentures, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Debentures purchased by us
will bear a legend to the foregoing effect.
4. We are an "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Debentures, and we and any
accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Debentures purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ___________________________
Authorized Signature
C-2
EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulation S
----------------------------------
______________, ____
Re: [ ]
(the "Company") 13 7/8% Senior
Debentures due 2010 (the "Debentures")
--------------------------------------
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Debentures, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Debentures was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we understand that, on any proposed resale of any Debentures, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Xxxxx-
X-0
tures purchased by us will bear a legend to the foregoing effect; and
(6) we have advised the transferee of the transfer restrictions
applicable to the Debentures.
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. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________
Authorized Signature
D-2
