EXHIBIT 4.6
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_____________________
SAMSONITE CORPORATION, as Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
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INDENTURE
Dated as of June 24, 1998
$350,000,000
10 3/4% Senior Subordinated Notes due 2008
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310 (a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(b)................................................. 7.08; 7.10; 11.02
(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)................................................. 11.03
(c)................................................. 11.03
313 (a)................................................. 7.06
(b)(1).............................................. 7.06
(b)(2).............................................. 7.06
(c)................................................. 7.06; 11.02
(d)................................................. 7.06
314 (a)................................................. 4.02; 4.04; 11.02
(b)................................................. N.A.
(c)(1).............................................. 11.04; 11.05
(c)(2).............................................. 11.04; 11.05
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 11.05
(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)................................. 11.06
(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)................................................. 11.01
____________________
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
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions............................................ 1
Section 1.02. Other Definitions...................................... 31
Section 1.03. Incorporation by Reference of Trust Indenture Act...... 32
Section 1.04. Rules of Construction.................................. 32
ARTICLE 2
THE SECURITIES
Section 2.01. Dating; Incorporation of Form in Indenture............. 33
Section 2.02. Execution and Authentication........................... 34
Section 2.03. Registrar and Paying Agent............................. 35
Section 2.04. Paying Agent To Hold Assets in Trust................... 35
Section 2.05. Securityholder Lists................................... 36
Section 2.06. Transfer and Exchange.................................. 36
Section 2.07. Replacement Securities................................. 36
Section 2.08. Outstanding Securities................................. 37
Section 2.09. Temporary Securities................................... 37
Section 2.10. Cancellation........................................... 38
Section 2.11. Defaulted Interest..................................... 38
Section 2.12. Deposit of Moneys...................................... 38
Section 2.13. CUSIP Number........................................... 39
Section 2.14. Book-Entry Provisions for Global Securities............ 39
Section 2.15. Special Transfer Provisions............................ 40
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee..................................... 43
Section 3.02. Selection by Trustee of Securities To Be Redeemed...... 43
Section 3.03. Notice of Redemption................................... 44
Section 3.04. Effect of Notice of Redemption......................... 44
Section 3.05. Deposit of Redemption Price............................ 45
Section 3.06. Securities Redeemed in Part............................ 45
Section 3.07. Optional Redemption.................................... 46
i
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities............................................. 46
Section 4.02. SEC Reports....................................................... 47
Section 4.03. Waiver of Stay, Extension or Usury Laws........................... 47
Section 4.04. Compliance Certificate............................................ 48
Section 4.05. Taxes............................................................. 48
Section 4.06. Limitation on Incurrence of Additional Indebtedness............... 49
Section 4.07. Limitation on Preferred Stock of Restricted Subsidiaries.......... 49
Section 4.08. Limitation on Restricted Payments................................. 50
Section 4.09. Limitation on Certain Asset Sales................................. 52
Section 4.10. Limitation on Transactions with Affiliates........................ 55
Section 4.11. Limitation on Other Senior Subordinated Debt...................... 57
Section 4.12. Payments for Consent.............................................. 57
Section 4.13. Corporate Existence............................................... 57
Section 4.14. Change of Control................................................. 58
Section 4.15. Maintenance of Office or Agency................................... 60
Section 4.16. Limitation on Liens............................................... 61
Section 4.17. Limitation on Emerging Market Subsidiaries........................ 61
Section 4.18. Limitation on Restricting Subsidiary Dividends; Restriction on
Sale and Issuance of Subsidiary Stock.......................... 62
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets............ 64
Section 5.02. Successor Person Substituted...................................... 65
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default................................................. 65
Section 6.02. Acceleration...................................................... 67
Section 6.03. Other Remedies.................................................... 68
Section 6.04. Waiver of Past Defaults and Events of Default..................... 69
Section 6.05. Control by Majority............................................... 69
Section 6.06. Limitation on Suits............................................... 69
Section 6.07. Rights of Holders To Receive Payment.............................. 70
Section 6.08. Collection Suit by Trustee........................................ 70
ii
Section 6.09. Trustee May File Proofs of Claim............................... 71
Section 6.10. Priorities..................................................... 71
Section 6.11. Undertaking for Costs.......................................... 72
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.............................................. 72
Section 7.02. Rights of Trustee.............................................. 74
Section 7.03. Individual Rights of Trustee................................... 75
Section 7.04. Trustee's Disclaimer........................................... 75
Section 7.05. Notice of Defaults............................................. 75
Section 7.06. Reports by Trustee to Holders.................................. 75
Section 7.07. Compensation and Indemnity..................................... 76
Section 7.08. Replacement of Trustee......................................... 77
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion....... 78
Section 7.10. Eligibility; Disqualification.................................. 79
Section 7.11. Preferential Collection of Claims Against Company.............. 79
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders..................................... 79
Section 8.02. With Consent of Holders........................................ 80
Section 8.03. Compliance with Trust Indenture Act............................ 81
Section 8.04. Revocation and Effect of Consents.............................. 82
Section 8.05. Notation on or Exchange of Securities.......................... 82
Section 8.06. Trustee To Sign Amendments, etc................................ 83
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture......................................... 83
Section 9.02. Legal Defeasance............................................... 84
Section 9.03. Covenant Defeasance............................................ 84
Section 9.04. Conditions to Defeasance or Covenant Defeasance................ 85
Section 9.05. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions............... 87
Section 9.06. Reinstatement.................................................. 88
Section 9.07. Moneys Held by Paying Agent.................................... 88
iii
Section 9.08. Moneys Held by Trustee.............................................. 88
ARTICLE 10
SUBORDINATION OF SECURITIES
Section 10.01. Securities Subordinate to Senior Debt............................... 89
Section 10.02. Payment Over of Proceeds upon Dissolution, etc...................... 89
Section 10.03. Suspension of Payment When Senior Debt in Default................... 91
Section 10.04. Trustee's Relation to Senior Debt................................... 94
Section 10.05. Subrogation to Rights of Holders of Senior Debt..................... 94
Section 10.06. Provisions Solely To Define Relative Rights......................... 95
Section 10.07. Trustee To Effectuate Subordination................................. 96
Section 10.08. No Waiver of Subordination Provisions............................... 96
Section 10.09. Notice to Trustee................................................... 97
Section 10.10. Reliance on Judicial Order or Certificate of Liquidating Agent...... 98
Section 10.11. Rights of Trustee as a Holder of Senior Debt; Preservation of
Trustee's Rights................................................. 99
Section 10.12. Article Applicable to Paying Agents................................. 99
Section 10.13. No Suspension of Remedies........................................... 99
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls........................................ 100
Section 11.02. Notices............................................................. 100
Section 11.03. Communications by Holders with Other Holders........................ 101
Section 11.04. Certificate and Opinion as to Conditions Precedent.................. 102
Section 11.05. Statements Required in Certificate and Opinion...................... 102
Section 11.06. When Treasury Securities Disregarded................................ 103
Section 11.07. Rules by Trustee and Agents......................................... 103
Section 11.08. Business Days; Legal Holidays....................................... 103
Section 11.09. Governing Law....................................................... 103
Section 11.10. No Adverse Interpretation of Other Agreements....................... 104
Section 11.11. No Recourse Against Others.......................................... 104
Section 11.12. Successors.......................................................... 104
Section 11.13. Multiple Counterparts............................................... 104
Section 11.14. Table of Contents, Headings, etc.................................... 104
Section 11.15. Separability........................................................ 104
iv
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
v
INDENTURE, dated as of June 24, 1998, between SAMSONITE CORPORATION, a
Delaware 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 10 3/4% Senior
Subordinated Notes due 2008 (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, 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 (other than any
Emerging Market Subsidiary)) 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
Restricted 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
--------
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
1
to such sale, lease, conveyance, transfer or other disposition, such other
Person becomes a Restricted Subsidiary (other than any Emerging Market
Subsidiary), (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 in compliance with Section 4.18.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes, estimated in good faith by the Company,
measured by or resulting from such Asset Sale, (b) payment of all brokerage
commissions, underwriting, accounting, legal and other fees and expenses related
to such Asset Sale, (c) provision for minority interest holders in any
Restricted Subsidiary as a result of such Asset Sale and (d) deduction of
appropriate amounts to be provided by the Company or a Restricted Subsidiary as
a reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or disposed of in such Asset Sale and retained by the Company or a
Restricted Subsidiary after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and
other non-cash consideration received by the Company or any Restricted
Subsidiary from such Asset Sale or other disposition upon the liquidation or
conversion of such notes or non-cash consideration into cash.
"Available Asset Sale Proceeds" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clause (iii)(a) or (b) and that have not yet been the
subject of an Excess Proceeds Offer in accordance with clause (iii)(c) of
Section 4.09(a).
"Board of Directors" means the board of directors of the Company or
any authorized committee thereof (a "Board Committee"); provided that the term
--------
"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.
2
"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 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 Xxxxx'x; (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 Xxxxx'x; (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
this Indenture.
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 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
3
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 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
4
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
--------
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 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
5
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
--------
be included in the calculation of Consolidated Fixed Charges.
"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
-------- -------
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, unusual 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
6
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 11.02.
"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 the Company 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.
"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.
"Designated Senior Debt" means (i) Indebtedness under the Original
Credit Agreement (and any guarantees thereof), and (ii) any other Indebtedness
constituting Senior Debt which, at the time of determination, has an aggregate
principal amount of at least $25,000,000 (or accreted value of at least such
amount in the case of Indebtedness issued at a discount) and is specifically
designated as "Designated Senior Debt" by the Company and, so long as the
Original Credit Agreement is in effect, by the Representative under the Original
Credit Agreement, and certified as such in an Officers' Certificate delivered to
the Trustee.
"Disqualified Capital Stock" means any Capital Stock which, by its
terms (or by the
7
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 4.14 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 respect 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
8
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.
"Exchange Debentures" means the 13 7/8% Subordinated Debentures due
2010 of the Company or the 13 7/8% Senior Debentures due 2010 of Holdings, as
the case may be, issuable in exchange for the Senior Preferred Stock in
accordance with the Certificate of Designation with respect to the Senior
Preferred Stock and pursuant to the Exchange Indenture including additional
Exchange Debentures issued as interest on outstanding Exchange Debentures
pursuant to the Exchange Indenture.
"Exchange Indenture" means the indenture dated as of June 24, 1998
between the Company, in the case of Exchange Debentures issued by the Company,
or the indenture dated as of the issue date of the Exchange Debentures between
Holdings, in the case of Exchange Debentures issued by Holdings, and, in either
case, United States Trust Company of New York, as trustee, governing the
Exchange Debentures.
"Exchange Securities" has the meaning provided for Exchange Notes in
the Registration Rights Agreement.
"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 organized 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.
"Holdings" means a holding company of the Company which may be formed
after
9
the Issue Date.
"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
--------
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 of the obligation or the fair market value
of the pledged property or assets), other than a Permitted 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
10
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.
"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.
"Invested Capital" in an Emerging Market Subsidiary means the sum
(without duplication) of the aggregate net cash proceeds and non-cash
consideration (other than services) received by such Emerging Market Subsidiary
from (a) the issuance of any Qualified Capital Stock of such Emerging Market
Subsidiary; (b) the issuance of Disqualified Capital Stock or Indebtedness
securities of such Emerging Market Subsidiary to (and only so long as such
securities are beneficially owned by) the Company, a Restricted Subsidiary of
the Company or any other Person that beneficially owns 20% or more of the
Qualified Capital Stock of such Emerging Market Subsidiary (a "Significant
Partner"); provided, that proceeds from the issuance of Disqualified Capital
--------
Stock and Indebtedness securities that are beneficially owned by a Significant
Partner shall constitute Invested Capital only to the extent that the ratio of
(w) the Invested Capital under the preceding clause (a) attributable to Capital
Stock beneficially owned by such Significant Partner to (x) the proceeds from
the issuance of Disqualified Capital Stock and Indebtedness of such Emerging
Market Subsidiary beneficially owned by such Significant Partner is not greater
than the ratio of (y) the Invested Capital under the preceding clause (a)
attributable to Capital Stock beneficially owned by the Company and its
Restricted Subsidiaries, taken as a whole, to (z) the proceeds from the issuance
of Disqualified Capital Stock and Indebtedness of such Emerging Market
Subsidiary beneficially owned by the Company and its Restricted Subsidiaries,
taken as a
11
whole; and (c) the issuance of Disqualified Capital Stock or Indebtedness
securities of such Emerging Market Subsidiary convertible into Qualified Capital
Stock of such Emerging Market Subsidiary, in each case upon such conversion
thereof into Qualified Capital Stock of such Emerging Market Subsidiary and that
is not considered Invested Capital pursuant to clause (b) above. For purposes of
this definition, the amount attributable to non-cash consideration shall be the
fair value thereof determined in good faith by the Board of Directors of such
Emerging Market Subsidiary.
"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, the Exchange Debentures issued by the Company or
the Senior Preferred Stock 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 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 in compliance with Section
4.09, and (vi) Investments for which the sole consideration provided is
Qualified Capital Stock. The Company shall be deemed to make an "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
12
Subsidiary is acquired by the Company.
"Issue Date" means the date of original issuance of the Securities.
"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, 2008.
"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 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-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Debt.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"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, and, in the case of the
Securities, any additional interest or liquidated damages from time to time
payable pursuant to the Registration Rights Agreement), 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.
13
"Offer Period" shall have the meaning specified in Section 4.09(b).
"Offering Memorandum" means the Offering Memorandum dated June 18,
1998 pursuant to which 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.
"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.
"Payment Default" means any default, whether or not any requirement
for the giving of notice, the lapse of time or both, or any other condition to
such default becoming an event of default has occurred, in the payment of
principal of (or premium, if any) or interest on or any other amount payable in
connection with Designated Senior Debt.
"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;
14
(iii) all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date;
(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
-------- -------
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 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 at least
to the same extent that the Securities are subordinated to Senior Debt, 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
15
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 the Company and its Restricted Subsidiaries,
taken as whole, and the Restricted Subsidiary making such acquisition
independently, are at least equal to 2:00:1 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 $50,000,000 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;
(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;
16
(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 that is otherwise
permitted under Section 4.09;
(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.
"Permitted Liens" means (a) Liens imposed by governmental authorities
for taxes, assessments or other charges that are either (i) not yet subject to
penalty or (ii) being contested in good faith and by appropriate proceedings, if
reserves with respect thereto are maintained on the applicable books of the
Company and its Subsidiaries in accordance with GAAP; (b) statutory Liens of
carriers, warehousemen, mechanics, materialmen, landlords, repairmen or other
like Liens arising by operation of law in the ordinary course of business;
provided, that (i) the underlying obligations are not overdue for a period of
--------
more than 30 days or (ii) such Liens are being contested in good faith and by
appropriate proceedings and reserves with respect to such underlying obligations
are maintained on the applicable books of the Company and its Subsidiaries in
accordance with GAAP; (c) Liens securing the performance of bids, trade
contracts (other than borrowed money), leases not constituting Capitalized Lease
Obligations, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business; (d) easements, rights-of-way, zoning and other similar restrictions,
encumbrances or title defects which, singly or in the aggregate, do not in any
case materially detract from the value of the property subject thereto (as such
property is used by the Company or any of its Restricted Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; (e) Liens arising by operation of law in connection
with judgments, only to the extent, for an amount and for a period not resulting
in an Event of Default with respect thereto; (f) pledges or deposits made in the
ordinary course of business in connection with worker's compensation,
unemployment insurance and other types of social security legislation; (g) Liens
on the property or assets of a Person existing at the time such Person or such
property or assets are acquired by the Company or any of its Subsidiaries;
provided, that such liens were incurred prior to and not in contemplation of
--------
such acquisition; (h) Liens in favor of
17
the Trustee arising under this Indenture; (i) Liens securing Indebtedness
incurred in accordance with clauses (ii), (iii), (iv), (v), (vii), (viii), (ix),
(x), (xi) or (xii) of the definition of Permitted Indebtedness or in accordance
with Section 4.06; (j) Liens in favor of the Pension Benefit Guaranty
Corporation with respect to collateral also securing Obligations under any
Credit Agreement, and (k) Liens existing on the Issue Date.
"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 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.
---------
"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.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital
18
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.
"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
--------
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 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
19
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.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of June 24, 1998 among the Company and CIBC Xxxxxxxxxxx
Corp., BancAmerica Xxxxxxxxx Xxxxxxxx, BancBoston Securities Inc. and Xxxxxxx,
Sachs & Co., as Initial Purchasers, relating to the Securities.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Related Business" means (i) any line or lines of business or business
activity conducted by the Company, its Subsidiaries and Emerging Market
Subsidiaries on the Issue Date, including, without limitation, the licensing of
brand names, (ii) any line or lines of business or business activity reasonably
related thereto, and (iii) the manufacture, distribution, marketing, leasing
and/or sale of consumer travel and luggage products.
"Representative" means the representative appointed by the holders of
the applicable Designated Senior Debt.
"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, (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 the Exchange Debentures 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 of the Company or its Subsidiaries, (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 Board
of Directors or (vi) forgiveness of any Indebtedness of an Affiliate of the
20
Company to the Company or a Restricted Subsidiary; provided, however, that 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 4.08, 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
--------
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, subject, however, to clause (v) of Section 4.17 providing for Emerging
Market Subsidiaries to constitute Restricted Subsidiaries but only to the extent
provided therein. 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 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 Restricted
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
21
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.
"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.
"Securities" means the Company's 10 3/4% Senior Subordinated Notes due
2008, 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 Debt" means, the principal of, premium, if any, and interest
(including, without limitation, interest accruing or that would have accrued but
for the filing of a bankruptcy, reorganization or other insolvency proceeding,
whether or not such interest constitutes an allowed or allowable claim in such
proceeding) on, and any and all other fees, expense reimbursement obligations,
obligations in respect of letters of credit, bankers' acceptances and similar
transactions, indemnities and other amounts owing pursuant to the terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all Indebtedness and
Obligations of the Company and its Subsidiaries owed under each Credit Agreement
(and any guarantees thereof), (b) all obligations of the Company with respect to
any Interest Rate Agreement or Currency Agreement to the extent incurred
pursuant to clause (iv) of the definition of Permitted Indebtedness, (c) all
obligations of the Company to reimburse any bank or other person in respect of
amounts paid under letters of credit, acceptances or other similar instruments,
(d) all other Indebtedness of the Company which does not provide that it is to
rank pari passu with or subordinate to the Securities and (e) all deferrals,
----------
renewals, extensions, replacements, refinancings and refundings of, and
amendments, modifications and supplements to, any of the Senior Debt described
above. Notwithstanding anything to the contrary in the foregoing, Senior Debt
will not include (i) Indebtedness of the Company to any of its Subsidiaries,
(ii) Indebtedness represented by the Securities, (iii) any Indebtedness which by
the express terms of the agreement or instrument creating, evidencing or
governing the same is junior or subordinate in right of payment to any item of
Senior Debt, (iv) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business or (v)
Indebtedness incurred in violation of this Indenture.
"Senior Preferred Stock" means the 13 7/8% Senior Redeemable
Exchangeable Preferred Stock, liquidation preference $1,000 per share of the
Company.
22
"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 Section 4.17 and the provisions of the definition of "Emerging Market
Subsidiary." The Trustee shall be given 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.
23
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.
"Wholly-Owned Subsidiary" means any Restricted Subsidiary all of the
outstanding voting securities (other than directors' qualifying shares) of which
are owned, directly or indirectly, by the Company.
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" 4.10
"Bankruptcy Law" 6.01
"Bankruptcy Proceeding" 10.02
"Business Day" 11.08
"Change of Control Offer" 4.14
"Change of Control Payment Date" 4.14
"Change of Control Purchase Price" 4.14
"Covenant Defeasance" 9.03
"Custodian" 6.01
"Event of Default" 6.01
"Excess Proceeds Offer" 4.09
"Global Securities" 2.01
"Initial Blockage Period" 10.03
"Legal Defeasance" 9.02
"Legal Holiday" 11.08
"Offer Period" 4.09
"Offshore Physical Securities" 2.01
24
"Paying Agent" 2.03
"Payment Blockage Period" 10.03
"Payment Restriction" 4.18
"Physical Securities" 2.01
"Purchase Date" 4.09
"Registrar" 2.03
"Reinvestment Date" 4.09
"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.
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;
25
(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"), deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter pro
vided 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.
26
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
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 issuance in exchange for all Securities previously issued
pursuant to an exchange offer registered under the Securities Act (a "Registered
Exchange") or pursuant to a Private Exchange (as defined in the Registration
Rights Agreement). Exchange Securities may have such distinctive series des-
ignation 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.
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
27
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.
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, and the
Trustee may at any time during the continuance of any Payment Default or Non-
Payment Event of Default, upon written request to a Paying Agent, require such
Paying Agent to forthwith pay to the Trustee all sums so held in trust by such
Paying Agent 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
28
in form satisfactory to the Company and the Registrar duly executed by the
Holder thereof 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 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 11.06, a Security does not cease to be outstanding
solely because
29
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 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
30
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 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
31
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 Securities, 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 Issue Date 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,
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
32
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.
(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.
33
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 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
34
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 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.
---------------------------
35
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 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, 2003 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
---- ----------
2003...................... 105.3750%
2004...................... 103.5833%
2005...................... 101.7917%
2006 and thereafter....... 100.0000%
(b) Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 40% of the original principal amount of Securities at any time
and from time to time on or prior to June 15, 2001 at a redemption price equal
to 110.75% 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 $210,000,000
--------
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
36
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 (including all
Additional Interest (as defined in the Registration Rights Agreement) as
provided in the Registration Rights Agreement) 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. 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 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.
---------------------------------------
37
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 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.
---------------------------------------------------
38
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
2:00:1; but no Restricted Subsidiary may incur Indebtedness which is not
---
Permitted Indebtedness unless its Consolidated Fixed Charge Coverage Ratio is at
least equal to 3:00:1; 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.
Section 4.07. Limitation on Preferred Stock of Restricted Subsidiaries.
--------------------------------------------------------
The Company will not permit any Restricted Subsidiary to issue any
Preferred Stock (except to the Company or to a Restricted Subsidiary) or permit
any Person (other than the Company or a Restricted Subsidiary) to hold any such
Preferred Stock unless the Company or such Restricted Subsidiary would be
entitled to incur or assume Indebtedness in compliance with Section 4.06 in an
aggregate principal amount equal to the aggregate liquidation value of the
Preferred Stock to be issued.
Section 4.08. 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
39
(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 Issue Date, 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 contributing 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 cash dividends on the Senior Preferred Stock after June 15, 2003; (D)
the payment of any 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; (E) 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 (i) in the case of a Change of Control,
has complied with its obligations under Section 4.14 or (ii) in the case of an
Asset Sale, has applied the Asset Sale Proceeds from such Asset Sale in
accordance with Section 4.09; (F) 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; or
40
(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 (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) or (D) 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 4.09. Limitation on Certain Asset Sales.
---------------------------------
(a) The Company will not, and will not cause or permit any of
its Restricted Subsidiaries to, consummate an Asset Sale or series of related
Asset Sales unless (i) the Company or such Restricted Subsidiary, as the case
may be, receives consideration at least equal to the fair market value thereof
on the date the Company or Restricted Subsidiary (as applicable) entered into
the agreement to consummate such Asset Sale (as determined in good faith by the
Company's Board of Directors, and evidenced by a Board Resolution of such Board
of Directors); (ii) not less than 75% of the consideration received by the
Company or its Restricted Subsidiaries, as the case may be, is in the form of
cash or Cash Equivalents other than in the case where the Company is exchanging
all or substantially all of the assets or one or more properties operated by the
Company (including by way of the transfer of capital stock) for all or
substantially all of the assets (including by way of the transfer of capital
stock) constituting one or more properties operated by another Person, provided
that at least 75% of the consideration received by the Company (50% with respect
to Emerging Market Subsidiaries) in such exchange, other than the properties, is
in the form of cash or Cash Equivalents; and (iii) the Asset Sale Proceeds
received by the Company or such Restricted Subsidiary are applied (a) first, to
the extent the Company elects, or is required, to prepay, repay, reduce credit
commitments, or purchase or cash collateralize Indebtedness under any then
existing Senior Debt of the Company or any Restricted Subsidiary within 270 days
following the receipt of the Asset Sale Proceeds from any Asset Sale; (b)
second, to the extent of the balance of Asset Sale Proceeds after application as
described above, to the extent the Company elects, to make an investment in
assets (including Capital Stock or other securities purchased in connection with
the acquisition of Capital Stock or property of another Person) used or useful
in businesses similar or ancillary to the business of the Company or Restricted
Subsidiary as conducted at the time of such Asset Sale, provided that such
Investment occurs or the Company or a Restricted Subsidiary enters into
contractual commitments to make such investment, subject only to customary
conditions (other than the obtaining of financing), on or prior to the 270th day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and
Asset Sales Proceeds contractually committed are so applied within 360 days
following the receipt of such Asset Sale Proceeds; and (c) third, if on the
Reinvestment Date with respect to any Asset Sale, the Available
41
Asset Sale Proceeds exceed $10,000,000, the Company shall apply an amount equal
to such Available Asset Sale Proceeds to an offer to repurchase the Securities,
at a purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (an "Excess
Proceeds Offer").
(b) If the Company is required to make an Excess Proceeds Offer, the
Company shall mail, within 30 days following the Reinvestment Date, a notice to
the registered holders stating, among other things: (1) that such holders have
the right to require the Company to apply the Available Asset Sale Proceeds to
repurchase such Securities at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase; (2) the purchase date (the "Purchase Date"), which shall be no
earlier than 30 days and not later than 60 days from the date such notice is
mailed; (3) the instructions, determined by the Company, that each holder must
follow in order to have such Securities repurchased; and (4) the calculations
used in determining the amount of Available Asset Sale Proceeds to be applied to
the repurchase of such Securities. The Excess Proceeds Offer shall remain open
for a period of 20 Business Days following its commencement (the "Offer
Period"). The notice, which shall govern the terms of the Excess Proceeds
Offer, shall also state:
(1) that the Excess Proceeds Offer is being made pursuant to this
Section 4.09 and the length of time the Excess Proceeds Offer will remain
open;
(2) the purchase price and the Purchase Date;
(3) that any Security not tendered or accepted for payment will
continue to accrue interest;
(4) that any Security accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date;
(5) that Holders electing to have a Security purchased pursuant to
any Excess Proceeds Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice at least
three Business Days before the Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not later
than the expiration of the Offer Period, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have the Security purchased;
(7) that, if the aggregate principal amount of Securities surrendered
by Holders exceeds the Available Asset Sale Proceeds, the Company shall
select the Securities to be
42
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(8) that Holders whose Securities were purchased only in part will
be issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered.
(c) On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary,
Securities or portions thereof tendered pursuant to the Excess Proceeds Offer,
deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase
price plus accrued interest, if any, on the Securities to be purchased and
deliver to the Trustee an Officers' Certificate stating that such Securities or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 4.09. The Paying Agent shall promptly (but in any case not
later than 5 days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Security tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Security, and the Trustee shall authenticate and mail or make
available for delivery such new Security to such Holder equal in principal
amount to any unpurchased portion of the Security surrendered. Any Security not
so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company will publicly announce the results of the Excess Proceeds
Offer on the Purchase Date. If an Excess Proceeds Offer is not fully
subscribed, the Company may retain that portion of the Available Asset Sale
Proceeds not required to repurchase Securities.
(d) Notwithstanding the foregoing:
(i) the Company and any Restricted Subsidiary of the Company may, in
the ordinary course of business, convey, sell, lease, transfer or otherwise
dispose of assets and license brand names in the ordinary course of business;
(ii) the Company may convey, sell, lease, transfer or otherwise
dispose of as pursuant to and in accordance with Section 5.01;
(iii) the Company and its Restricted Subsidiaries may (a) sell
damaged, worn out or other obsolete property in the ordinary course of
business or other property no longer necessary for the proper conduct of the
business or (b) abandon such property if it cannot, through reasonable
efforts, be sold;
(iv) the Company and its Restricted Subsidiaries may convey, sell,
lease, transfer or otherwise dispose of assets which are reflected on the
consolidated balance sheet of the Company at January 31, 1998 as being held
for sale; and
43
(v) the Company and its Restricted Subsidiaries may convey, sell,
lease, transfer or otherwise dispose of assets to the extent that the
aggregate Asset Sale Proceeds from all such asset dispositions not otherwise
permitted do not exceed $10,000,000 in any fiscal year of the Company.
Section 4.10. 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, 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 4.08; (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 amendment thereto)
or in any replacement
44
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 4.11. Limitation on Other Senior Subordinated Debt.
--------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness that is both (i) subordinate in right of payment to any Senior Debt
of the Company or its Restricted Subsidiaries, as the case may be, and (ii)
senior in right of payment to the Securities. For purposes of this Section
4.11, Indebtedness is deemed to be senior in right of payment to the Securities,
if it is not explicitly subordinate in right of payment to Senior Debt at least
to the same extent as the Securities are subordinate to Senior Debt.
Section 4.12. 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 4.13. 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 the conduct of the business of the Company and its
Restricted Subsidiaries,
45
taken as a whole.
Section 4.14. 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 4.14.
(b) Prior to the mailing of the notice referred to above, but in
any event within 30 days following the date on which the Company has actual
knowledge of a Change of Control, the Company covenants that if the purchase of
the Securities would violate or constitute a default under any then outstanding
Senior Debt, then the Company will, to the extent needed to permit such purchase
of Securities, either (i) repay in full all such Indebtedness on the basis
required by such Senior Debt to permit such purchase of Securities or (ii)
obtain the requisite consents under the agreements, documents and instrument(s)
governing such Senior Debt to permit the repurchase of the Securities as
provided in paragraph (a) above. The Company will first comply with the covenant
in the preceding sentence before it will be required to repurchase Securities
pursuant to the provisions described this Section 4.14; provided that the
--------
Company's failure to comply with the covenant described in the preceding
sentence will constitute an Event of Default to the extent provided in clause
(3) under Section 6.01.
(c) 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 4.14 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
46
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;
(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.
(d) 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.
(e) 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 4.15. Maintenance of Office or Agency.
-------------------------------
47
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 11.02 as such office of the Company.
Section 4.16. Limitation on Liens.
-------------------
The Company may not and may not permit any Restricted Subsidiary to,
directly or indirectly, incur or suffer to exist any Lien (other than Permitted
Liens) upon any of its property or assets, whether now owned or hereafter
acquired, that secures Subordinated Debt or Pari Passu Debt unless (i) in the
case of Liens securing Subordinated Debt, the Securities are secured by a Lien
on such property or assets that is senior in priority to such Liens, and (ii) in
the case of Liens securing Pari Passu Debt, the Securities are equally and
ratably secured by a Lien on such property or assets.
Section 4.17. Limitation on Emerging Market Subsidiaries.
------------------------------------------
The Company or a Wholly-Owned Subsidiary must designate Persons at all
times constituting a majority of the directors (or members of the governing
body) of, and at all times have the power to direct the management and policies
of, each Emerging Market Subsidiary; (ii) the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly own any Capital Stock
or other ownership interests in an Emerging Market Subsidiary unless the Company
and its Subsidiaries or Emerging Market Subsidiaries own, in the aggregate,
Capital Stock or other ownership interests such that the Emerging Market
Subsidiary at all times satisfies the conditions necessary for a Person to be a
Subsidiary of the Company under the definition of "Subsidiary" in this
Indenture; (iii) the Company will not permit any Emerging Market Subsidiary to
incur Indebtedness or issue Disqualified Capital Stock (other than Indebtedness
or Disqualified Capital Stock issued to or held by a Subsidiary of such Emerging
Market Subsidiary or to another Emerging Market Subsidiary or any Subsidiary of
another Emerging Market Subsidiary) if, immediately after giving effect thereto
(including the redemption, repurchase, repayment or
48
retirement of Indebtedness or Disqualified Capital Stock with the proceeds
thereof), the aggregate outstanding principal amount of Indebtedness and
liquidation or redemption value (whichever is the greater) of Disqualified
Capital Stock (other than Capital Stock issued to the Company or a Restricted
Subsidiary and other than Indebtedness that constitutes Invested Capital) of all
Emerging Market Subsidiaries on a combined consolidated basis would exceed the
greater of (A) $50,000,000 and (B) the product of (x) the greater of (A) the
combined consolidated stockholders' equity (calculated in accordance with GAAP)
of all Emerging Market Subsidiaries and (B) the aggregate amount, determined on
a combined consolidated basis, of Invested Capital (whether by the Company or a
Subsidiary of the Company or any other Person or Persons) in all Emerging Market
Subsidiaries and (y) 2.5; (iv) the Company will not permit any Emerging Market
Subsidiary to directly or indirectly (A) make any material Investment or (B)
engage to any material extent in, any line or lines of business activity, in
each case, other than in a Related Business; and (v) each Emerging Market
Subsidiary will be deemed to be a Restricted Subsidiary for purposes of Section
4.09 and the definitions as applicable thereto but only to the extent such
definitions are used therein and only to the extent not specifically excluded
therefrom.
Section 4.18. Limitation on Restricting Subsidiary Dividends; Restriction on
--------------------------------------------------------------
Sale and Issuance of Subsidiary Stock.
-------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or assume any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary of the
Company to pay dividends or make other distributions on the Capital Stock of any
Restricted Subsidiary of the Company or pay any obligation to the Company or any
of its Restricted Subsidiaries or otherwise transfer assets or make or pay loans
or advances to the Company or any of its Restricted Subsidiaries (collectively,
"Payment Restrictions"), except Payment Restrictions existing under (i) this
Indenture and the Securities and the Exchange Indenture and the Exchange
Debentures or Refinancing Indebtedness incurred to refinance the Securities or
the Exchange Debentures, as the case may be; provided, that such encumbrances
--------
and restrictions are no more restrictive than those contained in this Indenture
or the Exchange Indenture, as the case may be, as in effect on the Issue Date,
(ii) Indebtedness incurred under clause (ii) or clause (xi) or clause (xii) of
the definition of "Permitted Indebtedness," or Indebtedness (other than
Permitted Indebtedness) incurred under Section 4.06, provided, that such
--------
encumbrances and restrictions are no more restrictive than those set forth in
the Original Credit Agreement as in effect on the Issue Date, (iii) Indebtedness
existing on the Issue Date or Refinancing Indebtedness incurred to refinance
such existing Indebtedness; provided, that such encumbrances and restrictions
--------
are no more restrictive than those contained in the agreements governing
Indebtedness existing on the Issue Date as in effect on the Issue Date, (iv)
leasing agreements as in effect on the Issue Date and (v) any agreement of a
Person acquired by the Company or a Restricted Subsidiary of the Company, which
restrictions existed at the time of acquisition, were not put in place in
anticipation of such acquisition and are not applicable to any Person or
property, other than the Person or any property of the Person so acquired.
Notwithstanding the foregoing, (a) customary provisions restricting subletting
or assignment of any lease or license entered into the ordinary course of
business consistent with past practice and
49
(b) Liens permitted under Section 4.16 on assets securing Indebtedness incurred
in accordance with Section 4.06 shall not in and of themselves be considered a
Payment Restriction. The Company will not sell, and will not permit any of its
Restricted Subsidiaries to issue or sell, any shares of Capital Stock of any
Restricted Subsidiary of the Company to any Person other than the Company or a
Restricted Subsidiary of the Company; provided, that the Company and its
--------
Restricted Subsidiaries may sell all (but not less than all) of the outstanding
shares of Capital Stock of any Restricted Subsidiary of the Company held by them
in a single transaction or a series of substantially contemporaneous
transactions if the provisions described under Section 4.09 are complied with.
Notwithstanding the foregoing, the issuance or sale of shares of Capital Stock
of any Restricted Subsidiary of the Company shall not violate the provisions of
the immediately preceding sentence if (i) such shares are issued or sold in
connection with (x) the formation or capitalization of a Restricted Subsidiary
which, at the time of such issuance or sale and after giving effect thereto, is
a Joint Venture Subsidiary or (y) a single transaction or a series of
substantially contemporaneous transactions whereby such Restricted Subsidiary
becomes a Restricted Subsidiary of the Company by reason of the acquisition of
securities or assets from another Person or (ii) such shares constitute
directors' qualifying shares not exceeding one percent of the outstanding
Capital Stock of such Restricted Subsidiary.
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, 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
50
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, (a) 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, and (b) the Company may merge with
an Affiliate that is a corporation that has no material assets or liabilities
and that was incorporated solely for the purpose of (A) reincorporating the
Company in the same or another jurisdiction of the United States, any state
thereof or the District of Columbia or (B) the creation of a holding company of
the Company.
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 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 4.14 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
51
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) there is a default in the payment at final maturity of principal
in an aggregate amount of $10,000,000 or more with respect to any
Indebtedness of the Company or any Restricted Subsidiary thereof which
default shall not be cured, waived or postponed pursuant to an agreement with
the holders of such Indebtedness within 60 days after written notice, or the
acceleration of any such Indebtedness aggregating $10,000,000 or more which
acceleration shall not be rescinded or annulled within 30 days after written
notice to the Company of such Default by the Trustee or any Holder;
(6) any final judgment or judgments which can no longer be appealed
for the payment of money in excess of $10,000,000 shall be rendered against
the Company or any Restricted Subsidiary thereof, and shall not be discharged
for a period of 60 consecutive days during which a stay of enforcement of
such judgment shall not be in effect;
(7) 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
(8) 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
52
(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, assignee, 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 (i) shall (except as provided in clause (ii) of this sentence)
become immediately due and payable or (ii) if there are any amounts outstanding
under any of the agreements, documents, and instruments constituting Designated
Senior Debt, will become due and payable upon the first to occur of an
acceleration under any of the agreements, documents, and instruments
constituting Designated Senior Debt or five Business Days after receipt by the
Company and the Representative of such Acceleration Notice (unless all Events of
Default specified in such Acceleration Notice have been cured or waived). If an
Event of Default described under clauses (7) or (8) 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(7)
or (8), the Trustee has received an Officers' Certificate and an Opinion of
Counsel that such Default or Event
53
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.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
(subject to Section 10 hereof) 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 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.
-------------------
54
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.
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.
--------------------------------
55
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.
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
56
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 in good faith
by any holder of Senior Debt to enforce its rights under Section 10 hereof, 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
exercise 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
57
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.
(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 11.05 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 and in accordance
with the advice or opinion of such counsel.
58
(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.
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
59
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 Section 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 (even though the Securities may be so
subordinated) 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
60
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(7) or (8) 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
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
61
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.
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;
62
(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.
-----------------------
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. 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;
(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;
63
(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, after the Company's
obligation to purchase Securities arises thereunder, an Excess Proceeds Offer
or modify any of the provisions or definitions with respect to such offers);
(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 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
64
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.
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.
65
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
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 4.15 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.
Section 9.03. Covenant Defeasance.
-------------------
66
At the option of the Company, pursuant to a Board Resolution, the
Company shall be released from its obligations under Sections 4.02, 4.05 through
4.14 and 4.16 through 4.18 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 accordance 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
67
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 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.
-------------------------------------
68
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 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.
69
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 Security 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
SUBORDINATION OF SECURITIES
Section 10.01. Securities Subordinate to Senior Debt.
-------------------------------------
The Company covenants and agrees, and each Holder of Securities, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article 10, the Indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on the Securities and all other Obligations under the
Securities, this Indenture, and the Registration Rights Agreement are hereby
expressly made subordinate and subject in right of payment as provided in this
Article 10 to the prior indefeasible payment in full in cash of all existing and
future Senior Debt.
This Article 10 shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of or continue to hold
Senior Debt; and such provisions are made for the benefit of the holders of
Senior Debt; and such holders are made obligees hereunder and they or each of
them may directly enforce such provisions.
Section 10.02. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
70
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, arrangement, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any general assignment for the benefit of creditors or other marshaling
of assets or liabilities of the Company (except in connection with the merger or
consolidation of the Company or its liquidation or dissolution following the
transfer of substantially all of its assets, upon the terms and conditions
permitted under the circumstances described under Section 5.01) (all and each of
the foregoing being referred to herein individually as a "Bankruptcy Proceeding"
and collectively as "Bankruptcy Proceedings") the holders of Senior Debt will be
entitled to receive indefeasible payment and satisfaction in full in cash of all
amounts due or owing on or in respect of all Senior Debt before the holders of
the Securities are entitled to receive or retain any payment or distribution of
any kind on account of the Securities, or for or on account of the purchase or
redemption or other acquisition of Securities or on account of any Obligations
under the Securities, the Registration Rights Agreement or this Indenture.
In the event that, notwithstanding the foregoing, the Trustee or any
holder of Securities receives any payment or distribution of assets or
securities of the Company of any kind or character or any other payment or
distribution on account of the Securities, or for or on account of the purchase
or redemption or other acquisition of Securities or account of any Obligations
under the Securities, the Registration Rights Agreement or this Indenture,
whether in cash, property or securities, including, without limitation, by way
of set-off or otherwise, in respect of the Securities, or in respect of the
purchase or redemption or other acquisition of Securities, or in respect of any
Obligations under the Securities, the Registration Rights Agreement or this
Indenture before all Senior Debt is indefeasibly paid and satisfied in full in
cash, then such payment or distribution will be held by the recipient in trust
for the benefit of holders of Senior Debt and will be immediately paid over or
delivered by the Trustee or such holders of Securities to the holders of Senior
Debt or their representative or representatives to the extent necessary to make
payment in full in cash of all Senior Debt remaining unpaid, after giving effect
to any concurrent payment or distribution, or provision therefor, to or for the
holders of Senior Debt.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article 10 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
71
Section 10.03. Suspension of Payment When Senior Debt in Default.
-------------------------------------------------
(a) Unless Section 10.02 hereof shall be applicable, no payment
or distribution of any assets or securities of the Company or any Subsidiary of
any kind or character (including, without limitation, cash, property and any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Indebtedness of the Company being subordinated to the
payment of the Securities by the Company, other than Qualified Capital Stock of
the Company or subordinated debt securities of the Company that require no
payment of principal prior to the stated maturity of the Securities and that are
subordinated and junior in right of payment to Senior Debt at least to the same
extent as the Securities, with terms no less favorable to the Company and the
holders of the Designated Senior Debt than the terms of the Securities and this
Indenture) may be made by the Company or any Subsidiary, including, without
limitation, by way of set-off or otherwise, for or on account of the Securities
or any Obligations under the Securities, the Registration Rights Agreement or
this Indenture, or for or on account of the purchase or redemption or other
acquisition of Securities or any other Obligations under the Securities, the
Registration Rights Agreement or this Indenture, and neither the Trustee nor any
holder or owner of any Securities shall take or receive from the Company or any
Subsidiary, directly or indirectly in any manner, any payment or distribution in
respect of all or any portion of Securities or for or on account of the
purchase, redemption or other acquisition of the Securities or in respect of any
other Obligations under the Securities, the Registration Rights Agreement or
this Indenture, which prohibition shall be applicable upon the occurrence and
during the continuation of a Payment Default and such prohibition shall continue
until such Payment Default is cured, waived in writing or ceases to exist. At
such time as the prohibition set forth in the preceding sentence shall no longer
be in effect, subject to the provisions of the following paragraph (b), the
Company shall resume making any and all required payments in respect of the
Securities, including any missed payments, or any such other Obligations under
the Securities, the Registration Rights Agreement or this Indenture.
(b) Unless Section 10.02 hereof shall be applicable, upon the
occurrence and during the continuance of a Non-Payment Event of Default, no
payment or distribution of any assets or securities of the Company or any
Subsidiary of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Securities by the Company, other than
Qualified Capital Stock of the Company or subordinated debt securities of the
Company that require no payment of principal prior to the stated maturity of the
Securities and that are subordinated and junior in right of payment to Senior
Debt at least to the same extent as the Securities, with terms no less favorable
to the Company and the holders of the Designated Senior Debt than the terms of
the Securities and this Indenture) may be made by the Company or any Subsidiary,
including, without limitation, by way of set-off or otherwise, for or on account
of the Securities or any Obligations under the Securities, the Registration
Rights Agreement or this Indenture, or for or on account of the purchase or
redemption or other acquisition of Securities or any other Obligations under the
Securities, the Registration Rights Agreement or this Indenture, and neither the
Trustee nor any holder or owner
72
of any Securities shall take or receive from the Company or any Subsidiary,
directly or indirectly in any manner, any payment or distribution in respect of
all or any portion of Securities, or for or on account of the purchase,
redemption, or other acquisition of the Securities, or in respect of any such
other Obligations under the Securities, the Registration Rights Agreement or
this Indenture for a period (a "Payment Blockage Period") commencing on the date
of receipt by the Trustee of written notice from the Representative of such Non-
Payment Event of Default unless and until (subject to any blockage of payments
that may then be in effect under the preceding paragraph (a) of this Section
10.03) the earliest of (w) more than 179 days shall have elapsed since the date
of receipt of such written notice by the Trustee, (x) such Non-Payment Event of
Default shall have been cured or waived in writing or shall have ceased to
exist, (y) such Designated Senior Debt shall have been paid in full in cash or
(z) such Payment Blockage Period shall have been terminated by written notice to
the Company or the Trustee from such Representative, after which, in the case of
clause (w), (x), (y) or (z), the Company shall resume making any and all
required payments in respect of the Securities, including any missed payments.
Notwithstanding any other provision of this Indenture, in no event shall any
particular Payment Blockage Period commenced in accordance with the provisions
of this Section 10.03(b) extend beyond the date 179 days after the date of the
receipt by the Trustee of the applicable written notice referred to above given
by the Representative to commence such Payment Blockage Period (each such period
commencing on such date of receipt and ending after such 179 days after such
date of receipt, being referred to as an "Initial Blockage Period"). Any number
of additional Payment Blockage Periods may be commenced during any Initial
Blockage Period or any other Payment Blockage Period; provided, however, that no
-------- -------
such additional Payment Blockage Period commenced during an existing Payment
Blockage Period shall extend beyond 179 days after the date of receipt by the
Trustee of the applicable written notice from the Representative which commences
such Initial Blockage Period. After the expiration of any Payment Blockage
Period, no Payment Blockage Period may be commenced until at least 180
consecutive days have elapsed from the last day of such Payment Blockage Period.
Notwithstanding any other provision of this Indenture, no Non-Payment Event of
Default with respect to Designated Senior Debt which existed or was continuing
on the date of the commencement of any Payment Blockage Period initiated by the
Representative shall be, or be made, the basis for the commencement of a second
Payment Blockage Period initiated by the Representative, whether or not within
the Initial Blockage Period, unless such Non-Payment Event of Default shall have
been waived or cured for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Trustee
or any holder of Securities receives any payment or distribution of assets or
securities of the Company or any Subsidiary of any kind or character or any
other payment or distribution on account of the Securities, or for or on account
of the purchase or redemption or other acquisition of Securities, or on account
of any Obligations under the Securities, the Registration Rights Agreement or
this Indenture, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, in respect of the Securities, or in
respect of the purchase or redemption or other acquisition of Securities, or in
respect of any Obligations under the Securities, the Registration Rights
Agreement or this Indenture at a time when such payment or distribution was
prohibited by the provisions of this Section 10.03, before all Senior Debt is
indefeasibly paid and satisfied in full
73
in cash, then such payment or distribution will be held by the recipient in
trust for the benefit of holders of Senior Debt and will be immediately paid
over or delivered by the Trustee or such holders of Securities to the
Representative to the extent necessary to make payment in full in cash of all
Designated Senior Debt remaining unpaid, after giving effect to any concurrent
payment or distribution, or provision therefor, to or for the holders of
Designated Senior Debt.
Section 10.04. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and the Trustee shall not be liable
to any holder of Senior Debt (other than for its willful misconduct or
negligence) if it shall mistakenly pay over or deliver to the Holders of
Securities, the Company or any other Person moneys or assets to which any holder
of Senior Debt shall be entitled by virtue of this Article 10 or otherwise.
Nothing in this Section 10.04 shall affect the obligation of any other such
Person, the Company, or the Holders to hold such money or assets for the benefit
of, and to pay such money or assets over to, the holders of the Senior Debt or
their applicable representative or representatives.
Section 10.05. Subrogation to Rights of Holders of Senior Debt.
-----------------------------------------------
Upon the payment in full in cash of all Senior Debt, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of, premium, if any
and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior Debt of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article 10, and no
payments over pursuant to the provisions of this Article 10 to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to the provisions of this Article 10, to the payment
in full in cash of all amounts owing under or in respect of the Senior Debt of
the Company, then and in such case the Holders shall be entitled to receive from
the holders of such Senior Debt at the time outstanding any payments or
distributions received by
74
such holders of such Senior Debt in excess of the amount sufficient to pay all
amounts owing under or in respect of such Senior Debt in full in cash.
Section 10.06. Provisions Solely To Define Relative Rights.
-------------------------------------------
The provisions of this Article 10 are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Debt on the other hand. Nothing contained
in this Article 10 or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Debt, and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon a Default or an Event of
Default under this Indenture, subject to the rights of the holders of the
Designated Senior Debt under Section 6.02 hereof and subject to the rights, if
any, under this Article 10 of the holders of Senior Debt (1) in any case,
proceeding, dissolution, liquidation or other winding-up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 10.02 hereof, or in any other applicable
circumstances described in Section 10.02 to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions and in
the applicable circumstances specified in Section 10.03, to prevent any payment
or distribution prohibited by such Section or enforce their rights pursuant to
Section 10.03(c) hereof.
The failure to make a payment on account of principal of,
premium, if any, or interest on the Securities by reason of any provision of
this Article 10 shall not be construed as preventing the occurrence of a Default
or an Event of Default hereunder.
Section 10.07. Trustee To Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof agrees to be
bound by such provisions and authorizes and directs the Trustee, on his behalf,
to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-in-
fact for any and all such purposes, including, in the event of any Bankruptcy
Proceedings or other dissolution, winding-up, liquidation or reorganization of
the Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the prompt and timely filing of a claim for the unpaid balance of the
indebtedness of the Company owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration of the time to file
such a claim, the holders of Senior Debt, or any Representative, may, and hereby
are authorized to, file such a claim on behalf of Holders of the applicable
Securities.
75
Section 10.08. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Senior Debt
to enforce the subordination provisions herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any non-compliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.08, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article 10
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (3) release any
Person liable in any manner for the collection or payment of Senior Debt; and
(4) exercise or refrain from exercising any rights against the Company and any
other Person; provided, however, that in no event shall any such actions limit
-------- -------
the right of the Holders of the Securities to take any action to accelerate the
maturity of the Securities pursuant to Article 6 hereof or to pursue any rights
or remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
Section 10.09. Notice to Trustee.
-----------------
(a) The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee at its Corporate Trust Office in respect of the Securities.
Notwithstanding the provisions of this Article 10 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from any
trustee, fiduciary, representative, or agent therefor no later than one Business
Day prior to such payment; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of this Section 10.09, and subject to the
provisions of Sections 7.01 and 7.02 hereof, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if the Trustee shall
-------- -------
not have received the notice referred to in this Section 10.09 at least one
Business Day prior to the date upon which by the terms hereof any such payment
may become payable for any purpose under this Indenture (including, without
limitation, the payment of the principal of, premium, if any, or interest on any
Security), then, anything herein contained to the contrary notwithstanding but
without limiting the rights and remedies of the holders of Senior Debt or any
trustee, fiduciary,
76
representative, or agent therefor as against the Holders of the Securities or
any other Person, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it less than one Business Day prior to such date; nor shall the
Trustee be charged with knowledge of the curing of any such applicable default
in respect of Designated Senior Debt or the elimination of the act or condition
preventing any such payment unless and until the Trustee shall have received an
Officers' Certificate to such effect (subject to the rights of the holders of
the Designated Senior Debt under Section 10.03 hereof).
(b) Subject to the provisions of Section 7.01 hereof, the Trustee
shall be entitled to rely (to the extent reasonable and in good faith) on the
delivery to it of a written notice to the Trustee and the Company by a Person
representing itself to be a holder of Senior Debt (or a trustee, fiduciary,
representative, or agent therefor) for purposes of establishing that such notice
actually has been given by a holder of Senior Debt (or a trustee, fiduciary,
representative, or agent therefor); provided, however, that failure to give such
-------- -------
notice to the Company shall not affect in any way the ability of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article 10, and if such evidence is not furnished, the
Trustee, acting in good faith, may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 10.10. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution pursuant to this Article 10, the
Trustee, subject to the provisions of Section 7.01 hereof, and the Holders shall
be entitled to rely (to the extent reasonable and in good faith) upon any order
or decree entered by any court of competent jurisdiction in which any applicable
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding of the type referred to in Section
10.02 is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution in connection with such case or
proceeding, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 10; provided
--------
that the foregoing shall apply only if such court in which such case or
proceeding is pending has been fully apprised of the provisions of this Article
10.
Section 10.11. Rights of Trustee as a Holder of Senior Debt; Preservation
----------------------------------------------------------
of Trustee's Rights.
--------------------
77
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 10 with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee for its compensation owing pursuant to and in
accordance with, the first sentence of Section 7.07 hereof.
Section 10.12. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 10 shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article 10 in addition to or in place of the Trustee.
Section 10.13. No Suspension of Remedies.
-------------------------
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article 6 (subject to the rights of the
holders of the Designated Senior Debt under clause (ii) of the first sentence of
Section 6.02 hereof) or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this Article 10 of the
holders, from time to time, of Senior Debt.
ARTICLE 11
MISCELLANEOUS
Section 11.01. 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 11.02. 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 registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company:
Samsonite Corporation
78
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
79
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.
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 11.03. 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 11.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements
set forth in Section 11.05 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 11.05 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 11.05. 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:
(1) a statement that the Person making such certificate or
opinion has read such
80
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 11.06. 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 11.07. 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.
Section 11.08. 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 11.09. Governing Law.
-------------
81
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 11.10. 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 11.11. 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 11.12. 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.
Section 11.13. 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 11.14. 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 11.15. Separability.
------------
82
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.
SAMSONITE CORPORATION
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: _____________________________
Name:
Title:
84
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.
1
NO. _____ CUSIP NO.
SAMSONITE CORPORATION
10 3/4% Senior Subordinated Note due 2008
$
SAMSONITE CORPORATION, a Delaware corporation (the "Company"), for
value received, promises to pay to or registered assigns the
principal sum of Dollars, on June 15, 2008.
Interest Payment Dates: June 15 and December 15
Record Dates: June 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.
SAMSONITE CORPORATION
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
2
Trustee's Certificate of Authentication
This is one of the 10 3/4% Senior Subordinated Notes due 2008 referred
to in the within-mentioned Indenture.
Dated:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: _________________________
Authorized Signatory
3
(REVERSE OF SECURITY)
10 3/4% Senior Subordinated Note due 2008
1. Interest. SAMSONITE CORPORATION, a Delaware 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 semi-annually in arrears on each Interest Payment Date, commencing
December 15, 1998. 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.
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 interest 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 June 24, 1998 (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, the
issuance of preferred stock by the Company and its subsidiaries, 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
4
Company and its subsidiaries, certain transactions with, and investments in, its
affiliates, and a provision regarding change-of-control transactions.
5. Subordination. The Indebtedness evidenced by the Securities is,
-------------
to the extent and in the manner provided in the Indenture, subordinated and
subject in right of payment to the prior indefeasible payment in full in cash of
all Senior Debt as defined in the Indenture and this Security is issued subject
to such provisions. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee, on behalf of such Holder, to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and (c)
appoints the Trustee attorney-in-fact of such Holder for such purpose.
6. Optional Redemption. The Company may redeem the Securities, in
-------------------
the manner set forth in Section 3.07 of the Indenture.
7. 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.
8. Offers to Purchase. The Indenture requires that certain proceeds
------------------
from Asset Sales be used, subject to further limitations contained therein, to
make an offer to purchase certain amounts of Securities in accordance with the
procedures set forth in the Indenture. The Company is also required to make an
offer to purchase Securities upon occurrence of a Change of Control in
accordance with procedures set forth in the Indenture.
9. Denominations; Transfer; Exchange. The Securities are in
---------------------------------
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. 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.
10. Persons Deemed Owners. The registered Holder of this Security
---------------------
shall be treated as the owner of it for all purposes.
11. 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.
5
12. 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.
13. Successor Entity. When a successor corporation assumes all the
----------------
obligations of its predecessor under the Securities 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.
14. 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 (i) shall (except as provided in clause (ii) of this sentence)
become immediately due and payable or (ii) if there are any amounts outstanding
under any of the instruments constituting Designated Senior Debt, will become
due and payable upon the first to occur of an acceleration under any of the
instruments constituting Designated Senior Debt or five Business Days after
receipt by the Company and the Representative of such Acceleration Notice
(unless all Events of Default specified in such Acceleration Notice have been
cured or waived). If an Event of Default described under clauses (7) or (8) 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(7) or (8), 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
6
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.
15. 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 for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates as if it were not Trustee.
16. 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.
17. 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.
18. 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).
19. 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.
20. 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.
21. 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.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A SECURITY UPON
7
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.
8
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: _______________________________________
9
If you want to have only part of the Security purchased by the Company
pursuant to Section 4.09 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
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 4.09 or Section 4.14 of the
------------ ------------
Indenture, check the appropriate box:
Your Signature: ____________________________________
(Sign exactly as your name appears on the face of this Security)
___________________________
Signature Guaranteed
10
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 REPRE SENTATIVE 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.
1
EXHIBIT C
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
___________, ____
Re: Samsonite Corporation
(the "Company") 10 3/4%
Senior Subordinated Notes
due 2008 (the "Notes")
----------------------
Dear Sirs:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as of
June 24, 1998 relating to the Notes and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Securities except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes 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 Notes within two years after the original issuance of the
Notes, 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 Notes 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
provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
1
3. We understand that, on any proposed resale of any Notes, 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 Notes 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 Notes, 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 Notes 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
2
EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulations
----------------------------------
______________, ____
Re: Samsonite Corporation
(the "Company") 10 3/4%
Senior Subordinated Notes
due 2008 (the "Notes")
----------------------
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Notes, 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 Notes 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 Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other
1
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 Notes 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 Notes.
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
