EXHIBIT 4.2
EXECUTION
COPY
SUPREME INTERNATIONAL CORPORATION
Company
SUPREME MUNSINGWEAR CANADA, INC.
SUPREME INTERNATIONAL (DELAWARE), INC.
SUPREME INTERNATIONAL (N.Y.), INC.
SUPREME ACQUISITION CORPORATION
SUPREME INTERNATIONAL CORPORATION DE MEXICO, S.A. DE C.V.
Subsidiary Guarantors
and
STATE STREET BANK AND TRUST COMPANY
Trustee
--------------------
INDENTURE
Dated as of April 6, 1999
--------------------
12 1/4% Senior Subordinated Notes due 2006
12 1/4% Series B Senior Subordinated Notes due 2006
TABLE OF CONTENTS
Page
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........2
SECTION 101. DEFINITIONS......................................................2
"ACQUIRED INDEBTEDNESS.........................................................2
"ACQUISITION INDEBTEDNESS......................................................2
"ACT"..........................................................................3
"ADDITIONAL NOTES".............................................................3
"AFFILIATE"....................................................................3
"AGENT BANK"...................................................................3
"AGENT MEMBERS"................................................................3
"ASSET SALE"...................................................................3
"AUTHENTICATING AGENT".........................................................3
"AVERAGE LIFE".................................................................3
"BANKRUPTCY LAW"...............................................................4
"BOARD OF DIRECTORS"...........................................................4
"BOARD RESOLUTION".............................................................4
"BUSINESS DAY".................................................................4
"CAPITAL STOCK"................................................................4
"CAPITALIZED LEASE OBLIGATION".................................................4
"CARFEL NOTE"..................................................................4
"CASH EQUIVALENTS".............................................................4
"CHANGE IN CONTROL"............................................................5
"COMMISSION"...................................................................6
"COMPANY"......................................................................6
"COMPANY REQUEST"..............................................................6
"CONSOLIDATED ADJUSTED NET INCOME".............................................6
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO".....................................7
"CONSOLIDATED INCOME TAX EXPENSE"..............................................7
"CONSOLIDATED INTEREST EXPENSE"................................................7
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"CONSOLIDATED NON-CASH CHARGES"................................................8
"CORPORATE TRUST OFFICE".......................................................8
"CORPORATION"..................................................................8
"CURRENCY AGREEMENTS"..........................................................8
"CUSTODIAN"....................................................................8
"DEFAULT"......................................................................8
"DEFAULTED INTEREST"...........................................................8
"DEPOSITARY"...................................................................8
"DESIGNATED SENIOR INDEBTEDNESS"...............................................8
"DISINTERESTED DIRECTOR".......................................................9
"DOLLAR" OR "$"................................................................9
"EVENT OF DEFAULT".............................................................9
"EXCHANGE ACT".................................................................9
"EXCHANGE NOTES"...............................................................9
"EXCHANGE OFFER"...............................................................9
"EXCHANGE OFFER REGISTRATION STATEMENT"........................................9
"FAIR MARKET VALUE"............................................................9
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES".....................................9
"GLOBAL NOTES".................................................................9
"GUARANTEE"....................................................................9
"GUARANTOR SENIOR INDEBTEDNESS"...............................................10
"XXXXXXXX BANK LETTER OF CREDIT FACILITY".....................................10
"INDENTURE"...................................................................11
"INITIAL NOTES"...............................................................11
"INITIAL PURCHASERS"..........................................................11
"INTEREST PAYMENT DATE".......................................................12
"INTEREST RATE AGREEMENTS"....................................................12
"INVESTMENT"..................................................................12
"ISSUANCE DATE"...............................................................12
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"LEASE".......................................................................12
"LETTER OF CREDIT FACILITIES".................................................12
"LIEN"........................................................................12
"MATURITY"....................................................................13
"XXXXX'X".....................................................................13
"NET CASH PROCEEDS"...........................................................13
"NON-PAYMENT DEFAULT".........................................................13
"NON-U.S. PERSON".............................................................13
"NOTE GUARANTEE"..............................................................13
"NOTE REGISTER"...............................................................13
"NOTES".......................................................................13
"OCEAN BANK LETTER OF CREDIT FACILITY"........................................13
"OFFICERS' CERTIFICATE".......................................................14
OFFSHORE GLOBAL NOTE".........................................................14
"OFFSHORE NOTE EXCHANGE DATE".................................................14
"OFFSHORE PHYSICAL NOTE"......................................................14
"OPINION OF COUNSEL"..........................................................14
"OUTSTANDING".................................................................14
"PARI PASSU INDEBTEDNESS".....................................................15
"PAYING AGENT"................................................................15
"PAYMENT BLOCKAGE PERIOD".....................................................15
"PAYMENT DEFAULT".............................................................15
"PERMITTED HOLDERS"...........................................................15
"PERMITTED INDEBTEDNESS"......................................................15
"PERMITTED INVESTMENTS".......................................................17
"PERMITTED JUNIOR SECURITIES".................................................18
"PERSON"......................................................................18
"PHYSICAL NOTES"..............................................................18
"PLACE OF PAYMENT"............................................................18
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"PREDECESSOR NOTE"............................................................18
"PREFERRED STOCK".............................................................19
"PRIVATE PLACEMENT LEGEND"....................................................19
"PUBLIC EQUITY OFFERING"......................................................19
"QIB".........................................................................19
"QUALIFIED CAPITAL STOCK".....................................................19
"REDEEMABLE CAPITAL STOCK"....................................................19
"REDEMPTION DATE".............................................................19
"REDEMPTION PRICE"............................................................19
"REGISTRATION RIGHTS AGREEMENT"...............................................19
"REGISTRATION STATEMENT"......................................................19
"REGULAR RECORD DATE".........................................................19
"REGULATION S"................................................................19
"REPRESENTATIVE"..............................................................20
"RESPONSIBLE OFFICER".........................................................20
"RESTRICTED SUBSIDIARY".......................................................20
"RULE 144A"...................................................................20
"S&P".........................................................................20
"SALE AND LEASEBACK TRANSACTION"..............................................20
"SECURITIES ACT"..............................................................20
"SENIOR CREDIT FACILITY"......................................................20
"SENIOR INDEBTEDNESS".........................................................20
"SHELF REGISTRATION STATEMENT"................................................21
"SIGNIFICANT SUBSIDIARY"......................................................21
"SPECIAL RECORD DATE".........................................................21
"STATED MATURITY".............................................................21
"SUBORDINATED INDEBTEDNESS"...................................................21
"SUBSIDIARY"..................................................................22
"SUBSIDIARY GUARANTOR"........................................................22
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"THE BANK OF TOKYO-MITSUBISHI LETTER OF CREDIT FACILITY"......................22
"TRUST INDENTURE ACT".........................................................22
"TRUSTEE".....................................................................22
"UNITED STATES"...............................................................22
"UNRESTRICTED SUBSIDIARY".....................................................22
"U.S. GLOBAL NOTE"............................................................22
"U.S. GOVERNMENT OBLIGATIONS".................................................22
"U.S. PHYSICAL NOTE"..........................................................23
"VICE PRESIDENT"..............................................................23
"VOTING STOCK"................................................................23
"WHOLLY OWNED RESTRICTED SUBSIDIARY"..........................................23
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................23
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................24
SECTION 104. ACTS OF HOLDERS..................................................24
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND ANY
SUBSIDIARY GUARANTOR.............................................25
SECTION 106. NOTICE TO HOLDERS; WAIVER........................................26
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.........................26
SECTION 108. SUCCESSORS AND ASSIGNS...........................................27
SECTION 109. SEPARABILITY CLAUSE..............................................27
SECTION 110. BENEFITS OF INDENTURE............................................27
SECTION 111. GOVERNING LAW....................................................27
SECTION 112. LEGAL HOLIDAYS...................................................27
SECTION 113. TRUST INDENTURE ACT CONTROLS.....................................27
SECTION 114. NO RECOURSE AGAINST OTHERS.......................................28
SECTION 115. COUNTERPARTS.....................................................28
SECTION 116. APPOINTMENT OF AGENT FOR SERVICE.................................28
ARTICLE TWO - NOTE FORMS......................................................29
SECTION 201. FORMS GENERALLY..................................................29
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SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..................30
SECTION 203. RESTRICTIVE LEGENDS..............................................30
SECTION 204. FORM OF CERTIFICATE TO BE DELIVERED AFTER THE
OFFSHORE NOTE EXCHANGE DATE......................................33
ARTICLE THREE - THE NOTES.....................................................34
SECTION 301. AMOUNT...........................................................34
SECTION 302. DENOMINATIONS....................................................35
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...................35
SECTION 304. TEMPORARY NOTES..................................................36
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..............37
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES......................38
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...................38
SECTION 308. PERSONS DEEMED OWNERS............................................40
SECTION 309. CANCELLATION.....................................................40
SECTION 310. COMPUTATION OF INTEREST..........................................40
SECTION 311. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES...........................40
SECTION 312. TRANSFER PROVISIONS..............................................42
SECTION 313. FORM OF ACCREDITED INVESTOR CERTIFICATE..........................50
SECTION 314. FORM OF REGULATION S CERTIFICATE.................................52
SECTION 315. FORM OF RULE 144A CERTIFICATE....................................54
SECTION 316. CUSIP NUMBERS....................................................55
SECTION 317. ISSUANCE OF ADDITIONAL NOTES.....................................55
ARTICLE FOUR - SATISFACTION AND DISCHARGE.....................................55
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE..........................55
SECTION 402. APPLICATION OF TRUST MONEY.......................................57
ARTICLE FIVE - REMEDIES.......................................................57
SECTION 501. EVENTS OF DEFAULT................................................57
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...............59
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE...........................................60
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.................................60
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES...........61
SECTION 506. APPLICATION OF MONEY COLLECTED...................................61
SECTION 507. LIMITATION ON SUITS..............................................62
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST..................................63
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES...............................63
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE...................................63
SECTION 511. DELAY OR OMISSION NOT WAIVER.....................................63
SECTION 512. CONTROL BY HOLDERS...............................................64
SECTION 513. WAIVER OF PAST DEFAULTS..........................................64
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.................................64
ARTICLE SIX - THE TRUSTEE.....................................................65
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES..............................65
SECTION 602. NOTICE OF DEFAULTS...............................................66
SECTION 603. CERTAIN RIGHTS OF TRUSTEE........................................66
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES........68
SECTION 605. MAY HOLD NOTES...................................................68
SECTION 606. MONEY HELD IN TRUST..............................................68
SECTION 607. COMPENSATION AND REIMBURSEMENT...................................68
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..........................69
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................70
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...........................71
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS......72
SECTION 612. APPOINTMENT OF AUTHENTICATING AGENT..............................72
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ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............74
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES...................74
SECTION 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.....................74
SECTION 703. REPORTS BY TRUSTEE...............................................74
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..........74
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.............74
SECTION 802. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS............................................76
SECTION 803. SUCCESSOR SUBSTITUTED............................................77
ARTICLE NINE - SUPPLEMENTAL INDENTURES........................................77
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS...............77
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS..................78
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.............................79
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES................................79
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT..............................79
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES....................79
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES................................80
SECTION 908. EFFECT ON SENIOR INDEBTEDNESS....................................80
ARTICLE TEN - COVENANTS.......................................................80
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.............80
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.................................80
SECTION 1003. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST....................81
SECTION 1004. CORPORATE EXISTENCE.............................................82
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS...............................82
SECTION 1006. MAINTENANCE OF PROPERTIES.......................................83
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT.............................83
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SECTION 1008. LIMITATION ON INDEBTEDNESS......................................84
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS...............................84
SECTION 1010. LIMITATION ON ISSUANCES AND SALES OF PREFERRED
STOCK BY RESTRICTED SUBSIDIARIES................................87
SECTION 1011. LIMITATION ON TRANSACTIONS WITH AFFILIATES......................87
SECTION 1012. LIMITATION ON LIENS.............................................88
SECTION 1013. PURCHASE OF NOTES UPON CHANGE IN CONTROL........................88
SECTION 1014. LIMITATION ON SALE OF ASSETS....................................90
SECTION 1015. LIMITATIONS ON GUARANTEES OF INDEBTEDNESS BY
RESTRICTED SUBSIDIARIES.........................................92
SECTION 1016. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES..................93
SECTION 1017. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS...................94
SECTION 1018. LIMITATION ON OTHER SENIOR SUBORDINATED INDEBTEDNESS............94
SECTION 1019. LIMITATION ON UNRESTRICTED SUBSIDIARIES.........................94
SECTION 1020. REPORTS.........................................................95
SECTION 1021. WAIVER OF CERTAIN COVENANTS.....................................96
ARTICLE ELEVEN - REDEMPTION OF NOTES..........................................96
SECTION 1101. REDEMPTION......................................................96
SECTION 1102. APPLICABILITY OF ARTICLE........................................97
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE...........................97
SECTION 1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED....................97
SECTION 1105. NOTICE OF REDEMPTION............................................98
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.....................................99
SECTION 1107. NOTES PAYABLE ON REDEMPTION DATE................................99
SECTION 1108. NOTES REDEEMED IN PART..........................................99
ARTICLE TWELVE - SUBORDINATION OF NOTES......................................100
SECTION 1201. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.......................100
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.................100
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SECTION 1203. SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR
INDEBTEDNESS IN DEFAULT........................................101
SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT................................102
SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS........103
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS....................103
SECTION 1207. TRUSTEE TO EFFECTUATE SUBORDINATION............................103
SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS..........................104
SECTION 1209. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.......................104
SECTION 1210. NOTICE TO TRUSTEE..............................................104
SECTION 1211. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT..............................................105
SECTION 1212. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.................105
SECTION 1213. ARTICLE APPLICABLE TO PAYING AGENTS............................105
SECTION 1214. NO SUSPENSION OF REMEDIES......................................106
SECTION 1215. TRUST MONEYS NOT SUBORDINATED..................................106
SECTION 1216. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.......106
ARTICLE THIRTEEN - GUARANTEES................................................106
SECTION 1301. NOTE GUARANTEES................................................106
SECTION 1302. SEVERABILITY...................................................108
SECTION 1303. RESTRICTED SUBSIDIARIES........................................108
SECTION 1304. SUBORDINATION OF NOTE GUARANTEES...............................109
SECTION 1305. LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.................109
SECTION 1306. CONTRIBUTION...................................................109
SECTION 1307. SUBROGATION....................................................110
SECTION 1308. REINSTATEMENT..................................................110
SECTION 1309. RELEASE OF A SUBSIDIARY GUARANTOR..............................110
SECTION 1310. BENEFITS ACKNOWLEDGED..........................................110
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE........................111
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SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE............................................111
SECTION 1402. DEFEASANCE AND DISCHARGE.......................................111
SECTION 1403. COVENANT DEFEASANCE............................................111
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................112
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS...............113
SECTION 14060. REINSTATEMENT.................................................114
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SUPREME INTERNATIONAL CORPORATION
Reconciliation and tie between Trust Indenture Act
OF 1939 AND INDENTURE, DATED AS OF APRIL 6, 1999
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
---------------------------------- ------------------------------------------
/section/310(a)(1) 608
(a)(2) 608
(b) 608
/section/312(c) 701
/section/313(a) 703
/section/314(a)(4) 1007
(c)(1) 102
(c)(2) 102
(e) 102
/section/315(b) 601
/section/316(a)(last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(c) 104(d)
/section/317(a)(1) 503
(a)(2) 504
(b) 1003
/section/318(a) 111
--------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of April 6, 1999, among SUPREME INTERNATIONAL
CORPORATION, a corporation duly organized and existing under the laws of the
State of Florida (herein called the "Company"), having its principal office at
0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000 and SUPREME MUNSINGWEAR CANADA,
INC., a corporation organized under the laws of Canada, SUPREME INTERNATIONAL
(DELAWARE), INC., a Delaware corporation, SUPREME INTERNATIONAL (N.Y.), INC., a
New York corporation, SUPREME ACQUISITION CORPORATION, a Florida corporation,
and SUPREME INTERNATIONAL CORPORATION DE MEXICO, S.A. DE C.V., a corporation
organized under the laws of Mexico,, and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its 12
1/4% Senior Subordinated Notes due 2006 (the "Initial Notes"), and its 12 1/4%
Series B Senior Subordinated Notes due 2006 (the "Exchange Notes" and, together
with the Initial Notes, the "Notes"), of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
Each Subsidiary Guarantor (as defined herein) has duly authorized the
execution and delivery of this Indenture.
Upon the issuance of the Exchange Notes, if any, or the effectiveness
of the Shelf Registration Statement (as defined herein), this Indenture will be
subject to, and shall be governed by the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of or deemed to be part of and
to govern the indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with Generally Accepted Accounting
Principles; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (a) existing at
the time such Person becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or (b)
assumed in connection with the acquisition of assets from such Person. Acquired
Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Restricted Subsidiary.
"ACQUISITION INDEBTEDNESS" means Indebtedness of a Person incurred in
connection with or in contemplation of (i) an investment by the Company or any
of its Restricted Subsidiaries in any other Person pursuant to which such Person
becomes a Restricted Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries, (ii) an acquisition by the
Company or any of its Restricted Subsidiaries of the property and assets of any
Person other than the Company or any of its Restricted Subsidiaries that
constitute substantially all of a division or line of business of such Person or
(iii) the purchase by the Company or any of its Restricted Subsidiaries from a
third party of any licenses, trademarks, service marks, trade names or other
intellectual property rights of such third party; PROVIDED, HOWEVER, that
Indebtedness incurred in a transaction or series of related transactions, which
transactions have a Fair Market Value of less than $5.0 million will not be
considered to be Acquisition Indebtedness.
2
"ACT" when used with respect to any Holder, has the meaning specified
in Section 104.
"ADDITIONAL NOTES" means any Notes issued by the Company pursuant to
Section 317
"AFFILIATE" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 5% or more of such specified Person's Capital
Stock or any executive officer or director of any such specified Person or other
Person or, with respect to any natural Person, any Person having a relationship
with such Person by blood, marriage or adoption not more remote than first
cousin. For the purposes of this definition, "control," when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGENT BANK" means NationsBank, N.A. in its capacity as agent under the
Senior Credit Facility and any future or successor or replacement agent under
the Senior Credit Facility.
"AGENT MEMBERS" has the meaning specified in Section 311.
"ASSET SALE" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (a) any
Capital Stock of any Restricted Subsidiary; (b) all or substantially all of the
properties and assets of the Company or its Restricted Subsidiaries; or (c) all
or substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary, other than in the ordinary
course of business or (d) any other properties or assets of the Company or any
Restricted Subsidiary outside of the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (i) that is governed by the provisions of
Article Eight, (ii) between or among the Company and Wholly Owned Restricted
Subsidiaries in accordance with the terms of this Indenture, (iii) in compliance
with Section 1009, (iv) that consists of grants by the Company or its Restricted
Subsidiaries in the ordinary course of business of licenses or sub-licenses to
use any of the intellectual property rights of the Company or its Restricted
Subsidiaries, (v) that consists of the dress shirt inventory, manufacturing
equipment and any facilities acquired from Xxxxxx Corporation in connection with
the Company's acquisition of the Xxxx Xxxxx, Manhattan and Lady Manhattan
trademarks prior to the Issuance Date or (vi) having a Fair Market Value of less
than $750,000 in any given fiscal year.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"AVERAGE LIFE" means, as of the date of determination with respect to
any Indebtedness, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years from the date of determination to the date or dates
of each successive scheduled principal
3
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (ii) the amount of each such principal payment by (b)
the sum of all such principal payments.
"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of 1978,
as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"BOARD OF DIRECTORS" means, with respect to any Person, the board of
directors of such Person or any duly authorized committee of such board.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Notes, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location, as the case may
be, are authorized or obligated by law, regulation or executive order to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, partnership interests (whether general or limited), participations,
rights in or other equivalents (however designated) of such Person's equity, and
any other interest or participation that confers the right to receive a share of
the profits and losses, or distributions of assets of, such Person and any
rights (other than debt securities convertible into Capital Stock), warrants or
options exchangeable for or convertible into such Capital Stock, whether now
outstanding or issued after the Issuance Date.
"CAPITALIZED LEASE OBLIGATION" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) that is required to
be classified and accounted for as a capital lease obligation under GAAP, and,
for the purpose of this Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"CARFEL NOTE" means the Initial Note which is a U.S. Physical Note
issued to Carfel, Inc. on April 6, 1999.
"CASH EQUIVALENTS" means: (a) any evidence of Indebtedness with a
maturity of one year or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(PROVIDED that the full faith and credit of the United States of America is
pledged in support thereof); (b) certificates of deposit or acceptances with a
maturity of one year or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of not less than $500 million; (c) commercial paper with a maturity of
one year or less issued by a corporation that is not an Affiliate of the Company
and is organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P or any successor rating
agency or at least P-1 by Xxxxx'x or any successor rating agency; (d) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (a) and (b) above; and (e) demand and time
deposits with a domestic commercial bank that is a member of the Federal
4
Reserve System having combined capital and surplus and undivided profits of not
less than $500 million.
"CHANGE IN CONTROL" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of all outstanding Voting
Stock of the Company and either (x) the Permitted Holders beneficially own,
directly or indirectly, in the aggregate Voting Stock of the Company that
represents a lesser percentage of the aggregate ordinary voting power of all
classes of the Voting Stock of the Company, voting together as a single class,
than such other person or group and are not entitled (by voting power, contract
or otherwise) to elect directors of the Company having a majority of the total
voting power of the Board of Directors, or (y) such other person or group is
entitled to elect directors of the Company having a majority of the total voting
power of the Board of Directors; (b) the Company consolidates with, or merges
with or into, another Person or conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding Voting Stock of the Company
is converted into or exchanged for cash, securities or other property, other
than any such transaction (i) where the outstanding Voting Stock of the Company
is not converted or exchanged at all (except to the extent necessary to reflect
a change in the jurisdiction of incorporation of the Company) or is converted
into or exchanged for (A) Voting Stock (other than Redeemable Capital Stock) of
the surviving or transferee corporation or (B) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation and cash,
securities and other property (other than Capital Stock of the surviving or
transferee corporation) in an amount that could be paid by the Company as a
Restricted Payment as described under Section 1009 and (ii) immediately after
such transaction, no "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than Permitted Holders, is the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of all outstanding Voting
Stock of the surviving or transferee corporation and either (x) the Permitted
Holders beneficially own, directly or indirectly, in the aggregate Voting Stock
of the Company that represents a lesser percentage of the aggregate ordinary
voting power of all classes of the Voting Stock of the Company, voting together
as a single class, than such other person or group and are not entitled (by
voting power, contract or
5
otherwise) to elect directors of the Company having a majority of the
total voting power of the Board of Directors, or (y) such other person or group
is entitled to elect directors of the Company having a majority of the total
voting power of the Board of Directors; (c) during any consecutive two year
period, individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election to such
Board of Directors, or whose nomination for election by the stockholders of the
Company, was approved by a vote of 66 2/3% of the directors then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office;
or (d) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with Article Eight.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Vice President, its Treasurer or an Assistant Treasurer,
and delivered to the Trustee.
"CONSOLIDATED ADJUSTED NET INCOME" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted, to the extent
included in calculating such net income, by excluding, without duplication, (a)
all extraordinary gains or losses (net of taxes, fees and expenses relating
thereto), (b) all gains or losses (net of taxes, fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course of
business, (c) the portion of net income of any Person (other than the Company or
a Restricted Subsidiary), including Unrestricted Subsidiaries, in which the
Company or any Restricted Subsidiary has an ownership interest, except to the
extent of the amount of dividends or other distributions actually paid to the
Company or any Restricted Subsidiary in cash dividends or cash distributions
during such period, (d) the net income (or loss) of any Person combined with the
Company or any Restricted Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination, (e) the net income
of any Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary is not at the
date of determination (regardless of any waiver) permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary or its stockholders, and (f) for
purposes of calculating Consolidated Adjusted Net Income under Section 1009, any
net income (or loss) from any Restricted Subsidiary while it was an Unrestricted
Subsidiary at any time during such period other than any amounts actually
6
received from such Restricted Subsidiary during such period; PROVIDED that, if
any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary,
Consolidated Adjusted Net Income will be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (A) the amount of the
Consolidated Adjusted Net Income otherwise attributable to such Restricted
Subsidiary multiplied by (B) the quotient of (1) the number of shares of
outstanding common stock of such Restricted Subsidiary not owned on the last day
of such period by the Company or any of its Restricted Subsidiaries divided by
(2) the total number of shares of outstanding common stock of such Restricted
Subsidiary on the last day of such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" of the Company means, for
any period, the ratio of (a) the sum of Consolidated Adjusted Net Income and, to
the extent deducted in computing Consolidated Adjusted Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated Non-Cash
Charges, in each case, for such period to (b) the sum of (i) Consolidated
Interest Expense for such period and (ii) the aggregate amount of dividends and
other distributions paid, accrued or scheduled to be paid or accrued in respect
of Redeemable Capital Stock of the Company or any Restricted Subsidiary for such
period, in each case after giving PRO FORMA effect to (A) the incurrence of the
Indebtedness giving rise to the need to make such calculation and (if
applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was incurred, and the
application of the net proceeds occurred, on the first day of such period, (B)
the incurrence, repayment or retirement of any other Indebtedness by the Company
and its Restricted Subsidiaries since the first day of such period as if such
Indebtedness was incurred, repaid or retired on the first day of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily balance
of such Indebtedness during such period) and (C) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any company, entity or business acquired or disposed of by the
Company or its Restricted Subsidiaries, as the case may be, since the first day
of such period, as if such acquisition or disposition occurred on the first day
of such period.
"CONSOLIDATED INCOME TAX EXPENSE" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and all
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, without
duplication, (1) the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) all commissions, discounts and other fees and
charges owed with respect to the letter of credit, bankers' acceptance financing
or similar facilities and (v) amortization of debt issuance costs, plus (b) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and its Restricted Subsidiaries
during such period, plus (c) one-third of lease rental payments in connection
with operating leases paid, accrued and/or scheduled to be paid or accrued
during such period, in each case as determined on a consolidated basis in
accordance with GAAP;
7
PROVIDED that (x) the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a PRO FORMA basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period and (B) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of the Company, a fixed or floating rate of interest,
shall be computed by applying at the option of the Company, either the fixed or
floating rate, and (y) in making such computation, the Consolidated Interest
Expense attributable to interest on any Indebtedness under a revolving credit
facility computed on a PRO FORMA basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period.
"CONSOLIDATED NON-CASH CHARGES" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and any
Restricted Subsidiary reducing Consolidated Adjusted Net Income for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
non-cash charge that requires an accrual of or reserve for cash charges for any
future period or constituting an extraordinary item or loss).
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at 00 Xxxxxxxx, 00xx Xxxxx, Xxxxxxxxx Trust Division, Xxx Xxxx, XX
00000.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"CURRENCY AGREEMENTS" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed to protect against or manage exposure to fluctuations in
foreign currency exchange rates.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) all Senior Indebtedness
under the Senior Credit Facility and the Xxxxxxxx Bank Letter of Credit
Facility, and (ii) any other Senior Indebtedness which, at the time of
determination, has an aggregate principal amount outstanding of at least $25
million and that has been specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness."
8
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under this Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"DOLLAR" OR "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Registration Rights Agreement and this Indenture.
"EXCHANGE OFFER" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes (other than the Carfel Note)
for Exchange Notes, as provided for in the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the Issuance Date.
"GLOBAL NOTES" has the meaning set forth in Section 201.
"GUARANTEE" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of all or any
part of such obligation, including, without limiting the foregoing, the payment
of amounts drawn down by letters of credit. A guarantee shall include, without
limitation, any agreement
9
to maintain or preserve any Person's financial condition or to cause any other
Person to achieve certain levels of operating results; PROVIDED that no license
or sub-license entered into in the ordinary course of business between the
Company or any Restricted Subsidiary (other than with an Affiliate thereof)
shall be deemed to be a guarantee as a result of any minimum royalty or revenue
provisions with which the Company or such Restricted Subsidiary must comply.
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to any Subsidiary
Guarantor, (i) all obligations of such Subsidiary Guarantor, now or hereafter
existing, under or in respect of the Senior Credit Facility and the Letter of
Credit Facilities, whether for principal, premium, if any, interest (including
interest accruing after the filing of, or which would have accrued but for the
filing of, a petition by or against such Subsidiary Guarantor under Bankruptcy
Law, whether or not such interest is allowed as a claim after such filing in any
proceeding under such law) and other amounts due in connection therewith
(including any fees, premiums, expenses and indemnities) and (ii) the principal
of, premium, if any, and interest on all other Indebtedness of such Subsidiary
Guarantor (other than the Note Guarantee issued by such Subsidiary Guarantor or
any guarantee by such Subsidiary Guarantor of Additional Notes), whether
outstanding on the Issuance Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such indebtedness shall not be senior in right of payment to such
Note Guarantee. Notwithstanding the foregoing, "Guarantor Senior Indebtedness"
of a Subsidiary Guarantor shall not include (i) Indebtedness evidenced by the
Note Guarantee of such Subsidiary Guarantor or any guarantee by such Subsidiary
Guarantor of Additional Notes, (ii) Indebtedness of such Subsidiary Guarantor
that is expressly subordinated in right of payment to any Guarantor Senior
Indebtedness of such Subsidiary Guarantor, (iii) Indebtedness of such Subsidiary
Guarantor that by operation of law is subordinate to any general unsecured
obligations of such Subsidiary Guarantor, (iv) Indebtedness of such Subsidiary
Guarantor to the extent incurred in violation of any covenant of this Indenture,
(v) any liability for federal, state or local taxes or other taxes, owed or
owing by such Subsidiary Guarantor, (vi) Indebtedness for goods, materials or
services purchased in the ordinary course of business or Indebtedness consisting
of trade account payables or other current liabilities (other than any current
liabilities under the Senior Credit Facility, or the current portion of
long-term Indebtedness which would constitute Guarantor Senior Indebtedness but
for the operation of this clause (vi)) owed or owing by such Subsidiary
Guarantor, (vii) amounts owed by such Subsidiary Guarantor for compensation to
employees or for services rendered to such Subsidiary Guarantor, (viii)
Indebtedness of such Subsidiary Guarantor to the Company or any other Subsidiary
or to any other Affiliate of the Company or any of such Affiliate's
Subsidiaries, (ix) Redeemable Capital Stock of such Subsidiary Guarantor, (x)
amounts owing under leases and (xi) Indebtedness which when incurred and without
respect to any election under Section 1111(b) of Title 11 of the United States
Code is without recourse to such Subsidiary Guarantor.
"XXXXXXXX BANK LETTER OF CREDIT FACILITY" means the $45 million Line of
Credit Facility dated August 3, 1998 between the Company and Xxxxxxxx Bank, N.A.
"Holder" means the Person in whose name a Note is registered in the
Note Register.
10
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money (including overdrafts) or
for the deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade payables arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements, (f) all Indebtedness
referred to in (but not excluded from) the preceding clauses of other Persons
and all dividends of other Persons, the payment of which is secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (the amount of such obligation being deemed to be the
lesser of the Fair Market Value of such property or asset or the amount of the
obligation so secured), (g) all guarantees by such Person of Indebtedness
referred to in this definition of any other Person, and (h) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends.
For purposes hereof, the "maximum fixed repurchase price" of any Redeemable
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Redeemable Capital Stock as if such
Redeemable Capital Stock were purchased on any date on which Indebtedness shall
be required to be determined pursuant to this Indenture, and if such price is
based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"INITIAL NOTES" has the meaning specified in the first recital to this
Indenture.
"INITIAL PURCHASERS" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc., Xxxxxxxxxxx Xxxxxxx
Securities, Inc. and Barington Capital Group, L.P.
"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)
of Regulation D under the Securities Act.
11
"INTEREST PAYMENT DATE," when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"INTEREST RATE AGREEMENTS" means any interest rate protection
agreements and other types of interest rate hedging agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements) designed to protect against or manage exposure to fluctuations in
interest rates.
"INVESTMENT" means, with respect to any Person, any direct or indirect
advance, loan, guarantee or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. "Investments" shall exclude
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.
"ISSUANCE DATE" means April 6, 1999, the date on which the Notes are
originally issued under the Indenture.
"LEASE" means the Master Agreement dated August 28, 1997, as amended as
of the Issuance Date, among the Company, as lessee and guarantor, SUP Joint
Venture, as lessor, Suntrust Bank, Miami, N.A., as agent, Atlantic Financial
Managers, Inc. and Atlantic Financial Group, Ltd. and certain other financial
institutions, as lenders, and the related Lease Agreement (Land), Lease
Agreement (Building), Loan Agreement, Guaranty and Security Agreement and
Financing Statement (all as defined in the Master Agreement) dated as of August
28, 1997, as amended as of the Issuance Date, and any renewal, replacement or
extension thereof on terms similar to those in effect on the Issuance Date;
PROVIDED that any such renewal, replacement or extension will not increase the
amount of the guarantee by the Company of the obligations of the lessor under
the Lease or the rental obligations of the Company at the expiration of the term
of the Lease Agreement (Building) and Lease Agreement (Land) as of the date of
such renewal, replacement or extension.
"LETTER OF CREDIT FACILITIES" means the Xxxxxxxx Bank Letter of Credit
Facility, the Ocean Bank Letter of Credit Facility and The Bank of
Tokyo-Mitsubishi Letter of Credit Facility, as the same may be amended,
supplemented or otherwise modified including any refinancing, refunding,
replacement or extension thereof.
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. A Person shall be deemed to own subject to a Lien
any property which such Person has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement (other than a
consignment), capital lease or other title retention agreement.
12
"MATURITY" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as provided in such Note or in
this Indenture, whether at the Stated Maturity with respect to such principal or
by declaration of acceleration, call for redemption or purchase or otherwise.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of cash or Cash
Equivalents (except to the extent that such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary), net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of legal
counsel and investment banks) related to such Asset Sale, (ii) provisions for
all taxes payable as a result of such Asset Sale, (iii) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, (iv) amounts required to be paid to
any Person (other than the Company or any Restricted Subsidiary) owning a
beneficial interest in the assets subject to the Asset Sale and (v) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an Officers'
Certificate delivered to the Trustee.
"NON-PAYMENT DEFAULT" means any event of default (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"NON-U.S. PERSON" means a person who is not a U.S. person as defined in
Regulation S.
"NOTE GUARANTEE" means any guarantee of the obligations of the Company
under the Indenture and the Notes by any Restricted Subsidiary in accordance
with the provisions of the Indenture.
"NOTE REGISTER" and "Note Registrar" have the respective meanings
specified in Section 305.
"NOTES" has the meaning stated in the first recital of this Indenture
and more particularly means any Notes (including Additional Notes) authenticated
and delivered under this Indenture.
"OCEAN BANK LETTER OF CREDIT FACILITY" means the $7 million Line of
Credit Facility dated February 19, 1997 between the Company and Ocean Bank.
13
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
OFFSHORE GLOBAL NOTE" has the meaning set forth in Section 201.
"OFFSHORE NOTE EXCHANGE DATE" has the meaning set forth in Section 201.
"OFFSHORE PHYSICAL NOTE" has the meaning set forth in Section 201.
"OPINION OF COUNSEL" means a written opinion of outside legal counsel,
which and who may be outside counsel for the Company, and who shall be
reasonably acceptable to the Trustee.
"OUTSTANDING," when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, EXCEPT:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(i) Notes, or portions thereof, for whose payment or redemption or
repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Payment Agent (other
than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Notes; PROVIDED that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(i) Notes, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(i) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding
(PROVIDED that in connection with any offer by the Company or any obligor to
purchase the Notes, Notes tendered for purchase will be deemed to be Outstanding
and held by the tendering Holder until the date of purchase), except that, in
determining whether the Trustee
14
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor.
"PARI PASSU INDEBTEDNESS" means (a) with respect to the Notes,
Indebtedness that ranks PARI PASSU in right of payment to the Notes and (b) with
respect to any Note Guarantee, Indebtedness that ranks PARI PASSU in right of
payment to such Note Guarantee.
"PAYING AGENT" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any,
on) or interest on any Notes on behalf of the Company.
"PAYMENT BLOCKAGE PERIOD" has the meaning specified in Section 1203.
"PAYMENT DEFAULT" means any default in the payment (whether at stated
maturity, upon scheduled installment, by acceleration or otherwise) of principal
of, or premium, if any, or interest on Designated Senior Indebtedness.
"PERMITTED HOLDERS" means, as of the date of determination, (a) Xxxxx
Xxxxxxxxxxx, Xxxxxx Xxxxxxxxxxx, their spouses, their respective lineal
descendants and the spouses of such lineal descendants, (b) any Person
controlled by any of the Persons included in the foregoing clause (a) (as the
term "controlled" is defined under the definition of "Affiliate"), (c) trusts
for the benefit of any of the Persons included in the foregoing clause (a), and
(d) any charitable foundation a majority of whose members, trustees or
directors, as the case may be, are Persons included in the foregoing clause (a).
"PERMITTED INDEBTEDNESS" means any of the following:
(a) Indebtedness of the Company and the Subsidiary Guarantors
under the Senior Credit Facility in an aggregate principal amount at
any one time outstanding not to exceed the sum of (i) $15 million
(after giving effect to the permanent reduction made from the proceeds
of the issuance and sale of the Notes on the Issuance Date) less the
amount of permanent reductions made by the Company in respect of any
term loans under the Senior Credit Facility and (ii) the greater of (x)
$75 million and (y) the sum of (1) 85% of Eligible Receivables (as
defined in clauses (a) through (o) of the definition thereof contained
in the Senior Credit Facility on the Issuance Date), PLUS (2) the
lesser of (i) 90% of Eligible Factoring Credit Balances (as defined in
clauses (a) through (c) of the definition thereof contained in the
Senior Credit Facility on the Issuance Date) and (ii) $20 million, PLUS
(3) the lesser of (i) 60% of Eligible Inventory (as defined in clauses
(a) through (e) and (g) through (i) of the definition thereof contained
in the Senior Credit Facility on the Issuance Date) and (ii) $30
million, MINUS (d) the full amount of all outstanding letters of credit
issued pursuant to, or authorized
15
under, the Senior Credit Facility for the account of the Company or the
Restricted Subsidiaries which are not fully secured by cash collateral;
(b) Indebtedness of the Company with respect to any letters of
credit under the Letter of Credit Facilities in an aggregate principal
amount at any one time outstanding not to exceed $60 million;
(c) Indebtedness of the Company pursuant to the Notes (other than
Additional Notes) issued on the Issuance Date or of any Restricted
Subsidiary pursuant to a Note Guarantee (other than a guarantee of
Additional Notes);
(d) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Issuance Date (other than Indebtedness under the
Senior Credit Facility, the Letter of Credit Facilities and the Lease);
(e) Indebtedness of the Company owing to any Wholly Owned
Restricted Subsidiary; PROVIDED that any Indebtedness of the Company
owing to any such Restricted Subsidiary is unsecured and is
subordinated in right of payment from and after such time as the Notes
shall become due and payable (whether at Stated Maturity, acceleration
or otherwise) to the payment and performance of the Company's
obligations under the Notes; PROVIDED FURTHER that any disposition,
pledge or transfer of any such Indebtedness to a Person (other than a
disposition, pledge or transfer to the Company or another Wholly Owned
Restricted Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by the Company not permitted by this clause (e);
(f) Indebtedness of a Restricted Subsidiary owing to the Company
or to another Wholly Owned Restricted Subsidiary; PROVIDED that any
such Indebtedness of any Subsidiary Guarantor is subordinated in right
of payment to the Note Guarantee of such Subsidiary Guarantor; PROVIDED
FURTHER that any disposition, pledge or transfer of any such
Indebtedness to a Person (other than a disposition, pledge or transfer
to the Company or a Wholly Owned Restricted Subsidiary) shall be deemed
to be an incurrence of such Indebtedness by such Restricted Subsidiary
not permitted by this clause (f);
(g) Guarantees of any Restricted Subsidiary made in accordance
with the provisions of Section 1015;
(h) Obligations of the Company or any Subsidiary Guarantor entered
into in the ordinary course of business (i) pursuant to Interest Rate
Agreements designed to protect the Company or any Restricted Subsidiary
against fluctuations in interest rates in respect of Indebtedness of
the Company or any Restricted Subsidiary, which obligations do not
exceed the aggregate principal amount of such Indebtedness and (ii)
pursuant to Currency Agreements entered into by the Company or any of
its Restricted Subsidiaries in respect of its (x) assets or (y)
obligations, as the case may be, denominated in a foreign currency;
16
(i) Indebtedness of the Company or any Subsidiary Guarantor in
respect of purchase money obligations, Capitalized Lease Obligations of
the Company or any Subsidiary Guarantor and Subordinated Indebtedness
of the Company or any Subsidiary Guarantor in an aggregate amount which
does not exceed $5 million at any one time outstanding;
(j) Indebtedness of the Company or any Subsidiary Guarantor
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets, including, without limitation, shares of Capital
Stock of Restricted Subsidiaries;
(k) Indebtedness of the Company or any Subsidiary Guarantor
represented by (x) letters of credit for the account of the Company or
any Restricted Subsidiary or (y) other obligations to reimburse third
parties pursuant to any surety bond or other similar arrangements,
which letters of credit or other obligations, as the case may be, are
intended to provide security for workers' compensation claims, payment
obligations in connection with self-insurance or other similar
requirements in the ordinary course of business;
(l) the guarantee of the obligations of the lessor under the
Lease; and
(m) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of
any Indebtedness, referred to in clause (c) or (d) of this definition,
including any successive refinancings, so long as (i) any such new
Indebtedness shall be in a principal amount that does not exceed the
principal amount (or, if such Indebtedness being refinanced provides
for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount
as of the date of determination) so refinanced, plus the lesser of the
amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Indebtedness refinanced or the
amount of any premium reasonably determined as necessary to accomplish
such refinancing, (ii) in the case of any refinancing by the Company of
Pari Passu Indebtedness or Subordinated Indebtedness, such new
Indebtedness is made PARI PASSU with or subordinate to the Notes at
least to the same extent as the Indebtedness being refinanced, (iii) in
the case of any refinancing by any Subsidiary Guarantor of Pari Passu
Indebtedness or Subordinated Indebtedness, such new Indebtedness is
made PARI PASSU with or subordinate to the Note Guarantee of such
Subsidiary Guarantor at least to the same extent as the Indebtedness
being refinanced, (iv) such new Indebtedness has an Average Life longer
than the Average Life of the Notes and a final Stated Maturity later
than the final Stated Maturity of the Notes and (v) Indebtedness of the
Company or a Subsidiary Guarantor may only be refinanced with
Indebtedness of the Company or a Subsidiary Guarantor and Indebtedness
of a Restricted Subsidiary that is not a Subsidiary Guarantor may only
be refinanced with Indebtedness of such Restricted Subsidiary.
"PERMITTED INVESTMENTS" means any of the following:
17
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) intercompany Indebtedness to the extent permitted under clause
(e) or (f) of the definition of "Permitted Indebtedness";
(d) Investments in an amount not to exceed an aggregate of $5
million at any one time outstanding;
(e) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment (i) such other Person
becomes a Wholly Owned Restricted Subsidiary or (ii) such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a Wholly Owned
Restricted Subsidiary;
(f) bonds, notes, debentures and other securities received as
consideration for Assets Sales to the extent permitted under Section
1014;
(g) any loans or other advances made pursuant to any employee
benefit plans (including plans for the benefit of directors) or
employment agreements or other compensation arrangements (including for
the purchase of Capital Stock of the Company by employees), in each
case as approved by the Board of Directors of the Company, in an
aggregate amount at any one time outstanding not to exceed $1 million;
or
(h) negotiable instruments held for deposit or collection in the
ordinary course of business, except to the extent they would constitute
Investments in Affiliates.
"PERMITTED JUNIOR SECURITIES" has the meaning specified in Section
1202.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHYSICAL NOTES" has the meaning set forth in Section 201.
"PLACE OF PAYMENT" means the office or agency maintained by the Company
where the principal of (and premium, if any, on) and interest on the Notes are
payable as specified in Section 1002.
"PREDECESSOR NOTE" of any particular Note, means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
18
"PREFERRED STOCK" means, with respect to any Person, Capital Stock of
any class or classes (however designated) of such Person which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class of such Person whether now
outstanding, or issued after the Issuance Date, and including, without
limitation, all classes and series of preferred or preference stock of such
Person.
"PRIVATE PLACEMENT LEGEND" has the meaning set forth in Section 203.
"PUBLIC EQUITY OFFERING" means an offer and sale of common stock (which
is Qualified Capital Stock) of the Company made on a primary basis by the
Company pursuant to a registration statement that has been declared effective by
the Commission pursuant to the Securities Act (other than a registration
statement on Form S-8 or otherwise relating to equity securities issuable under
any employee benefit plan of the Company).
"QIB" means a "Qualified Institutional Buyer" within the meaning of
Rule 144A under the Securities Act.
"QUALIFIED CAPITAL STOCK" of any Person means any and all Capital Stock
of such Person other than Redeemable Capital Stock.
"REDEEMABLE CAPITAL STOCK" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"REDEMPTION DATE," when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"REDEMPTION PRICE," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of April 6, 1999, among the Company, the Subsidiary Guarantors and the
Initial Purchasers.
"REGISTRATION STATEMENT" means the Registration Statement as defined in
the Registration Rights Agreement.
"REGULAR RECORD DATE" has the meaning specified in Section 301.
"REGULATION S" means Regulation S under the Securities Act.
19
"REPRESENTATIVE" means (i) with respect to the Senior Credit Facility,
the Agent Bank and (ii) with respect to any other Senior Indebtedness, the
indenture trustee or other trustee, agent or representative for the holders of
such Senior Indebtedness.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means any Subsidiary other than an Unrestricted
Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc. and its successors.
"SALE AND LEASEBACK TRANSACTION" means any transaction or series of
related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing of such
property or asset to the seller or transferor.
"SECURITIES ACT" means Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SENIOR CREDIT FACILITY" means the Amended and Restated Loan and
Security Agreement dated as of March 26, 1999 among the Company and certain of
its Subsidiaries, as borrowers, NationsBank, N.A., as agent, and the banks party
thereto from time to time, together with the related documents thereto
(including, without limitation, any guarantee agreements permitted under this
Indenture and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including,
subject to the covenants of this Indenture, adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement in
compliance with this Indenture.
"SENIOR INDEBTEDNESS" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of the Senior Credit Facility and the
Letter of Credit Facilities, whether for principal, premium, if any, interest
(including, interest accruing after the filing of, or which would have accrued
but for the filing of, a petition by or against the Company under Bankruptcy
Law, whether or not such interest is allowed as a claim after such filing in any
proceeding under such law) and other amounts due in connection therewith
(including any fees, premiums, expenses and indemnities) and (ii) the principal
of, premium, if any, and interest on all other Indebtedness of the Company
(other than the Notes), whether outstanding on the
20
Issuance Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Notes, (ii) Indebtedness of the Company that is
expressly subordinated in right of payment to any Senior Indebtedness of the
Company or the Notes, (iii) Indebtedness of the Company that by operation of law
is subordinate to any general unsecured obligations of the Company, (iv)
Indebtedness of the Company to the extent incurred in violation of any covenant
of this Indenture, (v) any liability for federal, state or local taxes or other
taxes, owed or owing by the Company, (vi) Indebtedness for goods, materials or
services purchased in the ordinary course of business or Indebtedness consisting
of trade account payables or other current liabilities (other than any current
liabilities owing under the Senior Credit Facility, or the current portion of
long-term Indebtedness which would constitute Senior Indebtedness but for the
operation of this clause (vi)), (vii) amounts owed by the Company for
compensation to employees or for services rendered to the Company, (viii)
Indebtedness of the Company to any Subsidiary or any other Affiliate of the
Company or any such Affiliate's Subsidiaries, (ix) Redeemable Capital Stock of
the Company, (x) amounts owing under leases and (xi) Indebtedness which when
incurred and without respect to any election under Section 1111(b) of Title 11
of the United States Code is without recourse to the Company or any Restricted
Subsidiary.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary of the Company
that, together with its Subsidiaries, (i) for the most recent fiscal year of the
Company, accounted for more than 10% of the consolidated revenues of the Company
and its Restricted Subsidiaries, (ii) as of the end of such fiscal year, was the
owner of more than 10% of the consolidated assets of the Company and its
Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year or (iii)
was organized or acquired after the beginning of such fiscal year and would have
been a Significant Subsidiary if it had been owned during the entire fiscal
year.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Notes means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or a
Subsidiary Guarantor that is expressly subordinated in right of payment to the
Notes or the Note Guarantee of such Subsidiary Guarantor, as the case may be.
21
"SUBSIDIARY" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries or by the Company and one or more
other Subsidiaries.
"SUBSIDIARY GUARANTOR" means each of Supreme Munsingwear, Inc., Supreme
International (Delaware), Inc., Supreme International (N.Y.), Inc., Supreme
Acquisition Corporation and Supreme International Corporation de Mexico, S.A. de
C.V. and any Restricted Subsidiary that incurs a Note Guarantee; PROVIDED that,
upon the release and discharge of any Person from its Note Guarantee in
accordance with the Indenture, such Person shall cease to be a Subsidiary
Guarantor.
"THE BANK OF TOKYO-MITSUBISHI LETTER OF CREDIT FACILITY" means the $8
million Line of Credit Facility dated August 1, 1996 between the Company and The
Bank of Tokyo-Mitsubishi, Ltd.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed, except as provided
in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"UNITED STATES" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNRESTRICTED SUBSIDIARY" means each Subsidiary of the Company
designated as such pursuant to and in compliance with Section 1019.
"U.S. GLOBAL NOTE" has the meaning set forth in Section 201.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt; PROVIDED that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
22
"U.S. PHYSICAL NOTE" has the meaning set forth in Section 201.
"VICE PRESIDENT," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"VOTING STOCK" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted Subsidiary,
all of the outstanding Capital Stock (other than directors' qualifying shares or
shares of foreign Restricted Subsidiaries required to be owned by foreign
nationals pursuant to applicable law) of which are owned by the Company or by
one or more other Wholly Owned Restricted Subsidiaries or by the Company and one
or more other Wholly Owned Restricted Subsidiaries.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company, the Subsidiary
Guarantors and any other obligor on the Notes (if applicable) shall, at the
request of the Trustee, furnish to the Trustee an Officers' Certificate in form
and substance reasonably acceptable to the Trustee stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and, at the request of the Trustee, an
Opinion of Counsel to the effect that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of any such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture (other than pursuant to Section
1007) shall include:
(1) a statement that each individual or firm signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(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 each such individual or
such firm, he or it has made such examination or investigation as is
necessary to enable him or it to express
23
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 each such
individual or such firm, such covenant or condition has been complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any Subsidiary
Guarantor or other obligor on the Notes may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company, any Subsidiary Guarantor or other obligor on the Notes
stating that the information with respect to such factual matters is in the
possession of the Company, any Subsidiary Guarantor or other obligor on the
Notes, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agents duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
24
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact
and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note
Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to Board
Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall
have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such
Board Resolution, which shall be a date not earlier than the date 30
days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Notes shall be computed
as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company or any Subsidiary Guarantor in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND ANY SUBSIDIARY
GUARANTOR.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
25
(1) the Trustee by any Holder or by the Company or any Subsidiary
Guarantor or any other obligor on the Notes shall be sufficient for
every purpose hereunder if made, given, furnished or delivered in
writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to or with the Trustee at its Corporate
Trust Office, Attention: Xxxxxxxx Xxxx, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by
any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or
delivered in writing, or mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to the Company or such
Subsidiary Guarantor addressed to it at the address of its principal
office, for the attention of the Chief Financial Officer, specified in
the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company or such
Subsidiary Guarantor.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Notes by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at its
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be sufficient giving of
such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
26
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Notes Registrar and their successors hereunder and the Holders
and, with respect to any provisions hereof relating to the subordination of the
Notes or the rights of holders of Senior Indebtedness, the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. Upon the effectiveness of the
Shelf Registration Statement or the consummation of the Exchange Offer, this
Indenture will be subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, or Stated
Maturity or Maturity of any Note shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of any
Note) payment of principal (and premium, if any) or interest need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity or
Maturity; PROVIDED that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the
case may be.
SECTION 113. 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 provision required by the TIA shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or excluded, as the case may be.
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SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company or such Subsidiary Guarantor under the Notes, any Note Guarantee or
this Indenture, as applicable, or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note and the
related Note Guarantee, each Holder shall waive and release all such liability.
The waiver and release shall be part of the consideration for the issue of the
Notes and the Note Guarantees.
SECTION 115. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which shall be original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 116. APPOINTMENT OF AGENT FOR SERVICE.
By the execution of this Indenture, each of Supreme Munsingwear Canada,
Inc. and Supreme International Corporation de Mexico, S.A. de C. V. hereby
designates the Company as its authorized agent upon which process may be served
in any legal action or proceeding, including with respect to any state or
federal securities laws, that may be instituted in any federal court of the
United States or the court of any state thereof and arising out of or relating
to this Indenture. Service of process upon such agent at 0000 X.X. 000xx Xxxxxx,
Xxxxx, Xxxxxxx 00000, attention: Xxxxxx Xxxxxxxxxxx shall be deemed in every
respect effective service of process upon Supreme Munsingwear Canada, Inc. or
Supreme International Corporation de Mexico, S.A. de C.V., as applicable, in any
such legal action or proceeding and each of Supreme Munsingwear Canada, Inc. and
Supreme International Corporation de Mexico, S.A. de C.V. hereby submits to the
nonexclusive jurisdiction of any such court in which any such legal action or
proceeding is so instituted and waives, to the extent it may effectively do so,
any objection it may have now or hereafter to the laying of the venue of any
such legal action or proceeding. Such appointment shall be irrevocable so long
as the Holders or the Trustee shall have any rights pursuant to the terms of
this Indenture. Each of Supreme Munsingwear Canada, Inc. and Supreme
International Corporation de Mexico, S.A. de C.V., further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of such agent.
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ARTICLE TWO
NOTE FORMS
SECTION 201. FORMS GENERALLY.
The Initial Notes shall be known as the "12 1/4% Senior Subordinated
Notes due 2006" and the Exchange Notes shall be known as the "12 1/4% Series B
Senior Subordinated Notes due 2006," in each case, of the Company. The Notes and
the Trustee's certificate of authentication shall be in substantially the forms
set forth in Exhibit A hereto and in this Article, respectively, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such Notes, as evidenced by their execution of the Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note. Each Note shall be dated the date of
its authentication.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act shall be issued initially in the form of a single permanent
global Note in substantially the form set forth in Exhibit A and contain each of
the legends set forth in Section 203 (the "U.S. Global Note"), registered in the
name of the nominee of the Depositary, deposited with the Trustee, as custodian
for the Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued initially in the form of a
single temporary global Note in substantially the form set forth in Exhibit A
and contain the legends set forth in Section 203 (the "Temporary Offshore Global
Note"), registered in the name of the nominee of the Depositary, deposited with
the Trustee, as custodian for the Depositary or its nominee, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. At any
time following 41 days after the date hereof (the "Offshore Note Exchange
Date"), upon receipt by the Trustee and the Company of a certificate
substantially in the form set forth in Section 204, a single permanent global
Note substantially in the form of Exhibit A hereto (the "Permanent Offshore
Global Note"; and together with the Temporary Offshore Global Note, the
"Offshore Global Note") duly executed by the Company and authenticated by the
Trustee as hereinafter provided shall be deposited with the Trustee, as
custodian for the Depositary, and the Note Registrar shall reflect on its books
and records the date and a decrease in the principal amount of the Temporary
Offshore Global Note in an amount equal to the principal amount of the
beneficial interest in the Temporary Offshore Global Note transferred. The
aggregate principal
29
amount of the Offshore Global Note may from time to time be increased or
decreased by adjustments made in the records of the Trustee, as custodian for
the Depositary or its nominee, as herein provided. Initial Notes issued pursuant
to Section 305 in exchange for or upon transfer of beneficial interests in the
U.S. Global Note or the Offshore Global Note shall be in the form of U.S.
Physical Notes or in the form of permanent certificated Notes substantially in
the form set forth in Exhibit A (the "Offshore Physical Notes"), respectively,
as hereinafter provided.
Initial Notes which are offered and sold to Institutional Accredited
Investors which are not QIBs (excluding Non-U.S. Persons) or issued pursuant to
a change in the Depository's status as a "Clearing Agency" registered under the
Exchange Act or as a result of the occurrence and continuation of an Event of
Default with respect to the Notes shall be issued in the form of permanent
certificated Notes in substantially the form set forth in Exhibit A and contain
the Private Placement Legend as set forth in Section 203 (the "U.S. Physical
Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes."
Exchange Notes shall be issued substantially in the form set forth in
Exhibit A.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
Dated: ________________ By:_______________________________________
Authorized Signatory
SECTION 203. RESTRICTIVE LEGENDS.
Unless and until (i) an Initial Note is sold pursuant to an effective
Shelf Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in an Exchange Offer pursuant to an effective Exchange Offer
Registration Statement, in each case pursuant to the Registration Rights
Agreement, (A) each U.S. Global Note and U.S. Physical Note shall bear the
following legend set forth below (the "Private Placement Legend") on the face
thereof and (B) the Offshore Physical Notes and the Temporary Offshore Global
Note shall bear the Private Placement Legend on the face thereof until the
Offshore Note Exchange Date and receipt by the Company and the Trustee of a
certificate substantially in the form provided in Section 204:
30
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS NOTE 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 AS SET
FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A")), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUB-PARAGRAPH (a)(1),
(a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR" FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE
WHICH IS TWO YEARS 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 NOTE (OR ANY PREDECESSOR OF THIS NOTE) ONLY (A)
TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (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 000X XXXXXX XXX XXXXXX XXXXXX, 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) OUTSIDE THE UNITED STATES
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE
TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUB-PARAGRAPH (a)(1), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT
TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
31
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. AS
USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
Unless and until the Carfel Note is sold pursuant to an effective Shelf
Registration Statement, such Note shall bear the following legend:
THIS CERTIFICATE MAY NOT BE TRANSFERRED PRIOR TO SEPTEMBER 13,
1999 AND THEREAFTER MAY ONLY BE TRANSFERRED PURSUANT TO A PROSPECTUS
FORMING PART OF AN EFFECTIVE SHELF REGISTRATION STATEMENT AS SET FORTH
IN SECTIONS 305 AND 312 OF THE INDENTURE.
Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 311 AND 312 OF
THE INDENTURE.
32
SECTION 204. FORM OF CERTIFICATE TO BE DELIVERED AFTER THE OFFSHORE
NOTE EXCHANGE DATE.
On or after May 17, 0000
XXXXX XXXXXX XXXX AND TRUST COMPANY
00 Xxxxxxxx
00xx Xxxxx, Xxxxxxxxx Trust Division
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Re: SUPREME INTERNATIONAL CORPORATION (the "Company")
12 1/4% SENIOR SUBORDINATED NOTES DUE 2006 (THE "NOTES")
Ladies and Gentlemen:
This letter relates to $_________________ principal amount of Notes
represented by the temporary offshore global note certificate (the "Temporary
Offshore Global Note"). Pursuant to Section [201] [203] of the Indenture dated
as of April 6, 1999 (the "Indenture") relating to the Notes, we hereby certify
that (1) we are the beneficial owner of such principal amount of Notes
represented by the Temporary Offshore Global Note and (2) we are a Non-U.S.
Person to whom the Notes could be transferred in accordance with Rule 904 of
Regulation S promulgated under the Securities Act of 1933, as amended (the
"Regulation S"). [Accordingly, you are hereby requested to exchange the
Temporary Offshore Global Note for an unlegended Permanent Offshore Global Note
representing the undersigned's interest in the principal amount of Notes
represented by the Temporary Offshore Global Note, all in the manner provided
for in the Indenture.] [Accordingly, you are hereby requested to issue an
Offshore Physical Note representing the undersigned's interest in the principal
amount of Notes represented by the Temporary Offshore Global Note, all in the
manner provided by the Indenture.]
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 Holder]
By:_________________________________________
Authorized Signature
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ARTICLE THREE
THE NOTES
SECTION 301. AMOUNT.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $125,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 303, 304, 305, 306, 311,
312, 906, 1013, 1014 or 1108 or pursuant to an Exchange Offer.
The Initial Notes shall be known and designated as the 12 1/4% Senior
Subordinated Notes due 2006" and the Exchange Notes shall be known and
designated as the 12 1/4% Series B Senior Subordinated Notes due 2006," in each
case, of the Company. The Stated Maturity of the Notes shall be April 1, 2006,
and they shall bear interest at the rate of 12 1/4% per annum from April 6, 1999
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable on October 1, 1999 and semiannually thereafter on
April 1 and October 1 in each year, until the principal thereof is paid in full
and to the Person in whose name the Note (or any predecessor Note) is registered
at the close of business on the March 15 or September 15 immediately preceding
such Interest Payment Date (each, a "Regular Record Date"). Interest will be
computed on the Notes as specified in Section 310 hereof.
The principal of (and premium, if any) and interest on the Notes shall
be payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; PROVIDED, HOWEVER, that, at the option of the
Company, interest may be paid (a) by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register or (b) by
wire transfer to an account located in the United States maintained by the
payee.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change in Control pursuant to
Section 1013. The Notes shall be subject to repurchase pursuant to an Excess
Proceeds Offer as provided in Section 1014.
The Notes shall be redeemable as provided in Article Eleven and in the
Notes. The Indebtedness evidenced by the Notes shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Twelve. The due and
punctual payment of principal of, and premium, if any, and interest on the Notes
payable by the Company is irrevocably and unconditionally guaranteed, to the
extent set forth herein, by each of the Subsidiary Guarantors. The Note
Guarantee issued by any Subsidiary Guarantor will be subordinated to all
existing and future Guarantor Senior Indebtedness of such Subsidiary Guarantor
as provided in Article Twelve.
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SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its President, its Chief Operating
Officer, its Chief Financial Officer or a Vice President. The signature of any
of these officers on the Notes may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
On the Issuance Date, the Company shall deliver the Initial Notes in
the aggregate principal amount of $100,000,000 executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes, directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of Notes contained
herein have been fully complied with, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Initial Notes. At any time and
from time to time after the Issuance Date, the Company may deliver Additional
Notes executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Additional Notes,
directing the Trustee to authenticate the Additional Notes and certifying that
the issuance of such Additional Notes is in compliance with Article Ten hereof
and that all other conditions precedent to the issuance of Notes contained
herein have been fully complied with, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Additional Notes; PROVIDED
that the aggregate principal amount of the Initial Notes issued on the Issuance
Date and the aggregate principal amount of any Additional Notes shall not exceed
$125,000,000. On Company Order, the Trustee shall authenticate for original
issue Exchange Notes in an aggregate principal amount not to exceed $100,000,000
plus the aggregate principal amount of any Additional Notes issued; PROVIDED
that such Exchange Notes shall be issuable only upon the valid surrender for
cancellation of Initial Notes and any Additional Notes of a like aggregate
principal amount in accordance with an Exchange Offer or Shelf Registration
Statement pursuant to the Registration Rights Agreement and a Company Order for
the authentication and delivery of such Exchange Notes and certifying that all
conditions precedent to the issuance of such Exchange Notes have been complied
with (including the effectiveness of the Registration Statement related
thereto). In each case, the Trustee shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel of the Company that it may reasonably
request in connection with such authentication of Notes. Such order shall
specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated.
35
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company or any Subsidiary Guarantor, pursuant to Article
Eight, shall be consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company or
such Subsidiary Guarantor shall have been merged, or the Person which shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article Eight, any of the Notes authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Notes as specified in such request for the purpose of
such exchange. If Notes shall at any time be authenticated and delivered in any
new name of a successor Person pursuant to this Section 303 in exchange or
substitution for or upon registration of transfer of any Notes, such successor
Person, at the option of the Holders but without expense to them, shall provide
for the exchange of all Notes at the time Outstanding for Notes authenticated
and delivered in such new name.
SECTION 304. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes, upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company shall execute and, upon Company
Order, the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged the
36
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for the Notes (the register maintained in the Corporate Trust
Office of the Trustee and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers of
Notes. The Note Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Note Register shall be open to inspection by the Trustee. The Trustee
is hereby initially appointed as note registrar (the Trustee in such capacity,
together with any successor of the Trustee in such capacity, the "Note
Registrar") for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for registration of transfer of any Note at the office
or agency in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, of any authorized denomination or
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Notes may be exchanged for other Notes, of
any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange (including an exchange of Initial Notes
for Exchange Notes), the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive; PROVIDED that no exchange of Initial Notes for Exchange
Notes shall occur until a Registration Statement shall have been declared
effective by the Commission, the Trustee shall have received an Officers'
Certificate confirming that the Registration Statement has been declared
effective by the Commission and the Initial Notes to be exchanged for the
Exchange Notes shall be cancelled by the Trustee and PROVIDED FURTHER that no
exchange of the Carfel Note shall occur except pursuant to an effective Shelf
Registration Statement after September 13, 1999.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any
37
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges pursuant to
Section 303, 304, 906, 1013, 1014 or 1108 not involving any transfer.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding, or, in case any such mutilated Note has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Note, pay such Note.
If there shall be delivered to the Company, any Subsidiary Guarantor
and to the Trustee (i) evidence to their satisfaction of the destruction, loss
or theft of any Note and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company, any Subsidiary Guarantor or the Trustee that
such Note has been acquired by a BONA FIDE purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount and bearing a number not contemporaneously outstanding, or, in case any
such destroyed, lost or stolen Note has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Note, pay
such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) in connection therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note, shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor and
any other obligor upon the Notes, whether or not the mutilated, destroyed, lost
or stolen Note shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the Place of Payment;
PROVIDED, HOWEVER, that each installment of interest on any Note may at the
Company's option be paid (i) by mailing a check for such interest,
38
payable to or upon the written order of the Person entitled thereto pursuant to
Section 308, to the address of such Person as it appears on the Note Register or
(ii) by wire transfer to an account located in the United States maintained by
the payee.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Notes (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Note and
the date of the proposed payment (the "Special Record Date"), and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in the manner
provided in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so given, such
Defaulted Interest shall be paid to the Persons in whose name the
Registered Notes (or their respective Predecessor Notes) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Notes
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other
39
Note shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Note.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer, the
Company, any Subsidiary Guarantor, the Trustee and any agent of the Company, any
Subsidiary Guarantor or the Trustee may treat the Person in whose name such Note
is registered as the owner of such Note for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Sections 305 and 307)
interest on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and none of the Company, any Subsidiary Guarantor, the Trustee
or any agent of the Company, any Subsidiary Guarantor or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Notes surrendered for payment, redemption, repayment at the option
of the Holder, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Notes so
delivered to the Trustee shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures unless by Company Order the Company shall direct that
cancelled Notes be returned to it.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) Each Global Note initially shall (i) be registered in the name of
the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and
(iii) bear legends as set forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the
40
Company, the Subsidiary Guarantors, the Trustee and any agent of the Company,
the Subsidiary Guarantors or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Subsidiary Guarantors, the Trustee or any agent
of the Company, the Subsidiary Guarantors or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
beneficial owner of any Note. The registered holder of a Global Note 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 Notes.
(b) Interests of beneficial owners in a Global Note may be transferred
in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 312. Transfers of a Global
Note shall be limited to transfers of such Global Note in whole, but
not in part, to the Depositary, its successors or their respective
nominees, except (i) as otherwise set forth in Section 312 and (ii)
U.S. Physical Notes or Offshore Physical Notes shall be transferred to
all beneficial owners in exchange for their beneficial interests in the
U.S. Global Note or the Offshore Global Note, respectively, in the
event that the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the applicable Global Note or the
Depositary ceases to be a "Clearing Agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company
within 90 days or an Event of Default has occurred and is continuing
and the Note Registrar has received a request from the Depositary. In
connection with a transfer of an entire Global Note to beneficial
owners pursuant to clause (ii) of this paragraph (b), the applicable
Global Note 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
Depositary in exchange for its beneficial interest in the applicable
Global Note, an equal aggregate principal amount at maturity of U.S.
Physical Notes (in the case of the U.S. Global Note) or Offshore
Physical Notes (in the case of the Offshore Global Note), as the case
may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest
in the other Global Note will, upon transfer, cease to be an interest
in such Global Note and become an interest in the other Global Note
and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Note for as long as it retains such an
interest.
(d) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Note pursuant to paragraph (b) of this Section shall,
unless such exchange is made on or after the Resale Restriction
Termination Date (as defined below) and except as otherwise provided in
Section 312, bear the Private Placement Legend.
41
SECTION 312. TRANSFER PROVISIONS.
Unless and until (i) an Initial Note is sold pursuant to an effective
Registration Statement, or (ii) an Initial Note is exchanged for an Exchange
Note in the Exchange Offer pursuant to an effective Registration Statement, in
each case, pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) GENERAL. The provisions of this Section 312 shall apply to all
transfers involving any Physical Note and any beneficial interest in
any Global Note.
(b) CERTAIN DEFINITIONS. As used in this Section 312 only, "delivery"
of a certificate by a transferee or transferor means the delivery to
the Note Registrar by such transferee or transferor of the applicable
certificate duly completed; "holding" includes both possession of a
Physical Note and ownership of a beneficial interest in a Global Note,
as the context requires; "transferring" a Global Note means
transferring that portion of the principal amount of the transferor's
beneficial interest therein that the transferor has notified the Note
Registrar that it has agreed to transfer; and "transferring" a Physical
Note means transferring that portion of the principal amount thereof
that the transferor has notified the Note Registrar that it has agreed
to transfer.
As used in this Indenture, "Accredited Investor Certificate" means a
certificate substantially in the form set forth in Section 313;
"Regulation S Certificate" means a certificate substantially in the
form set forth in Section 314; "Rule 144A Certificate" means a
certificate substantially in the form set forth in Section 315; and
"Non-Registration Opinion and Supporting Evidence" means a written
opinion of counsel reasonably acceptable to the Company to the effect
that, and such other certification or information as the Company may
reasonably require to confirm that, the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
(c) [Intentionally Omitted]
(d) DEEMED DELIVERY OF A RULE 144A CERTIFICATE IN CERTAIN CIRCUMSTANCES. A
Rule 144A Certificate, if not actually delivered, will be deemed
delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance
with the provisions of Rule 144A (or, in the case of a transfer of a
Physical Note, the transferor checks the box provided on the Physical
Note to that effect) and (ii) the transferee advises the Company and
the Trustee in writing that (x) it and, if applicable, each account for
which it is acting in connection with the relevant transfer, is a
qualified institutional buyer within the meaning of Rule 144A, (y) it
is aware that the transfer of Notes to it is being made in reliance on
the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A, and (z) prior to the proposed date of transfer
it has been given the opportunity to obtain from the Company the
information referred to in Rule 144A(d)(4), and has either declined
such opportunity or has received such information (or, in the case of a
transfer of a Physical Note, the transferee signs the certification
provided on the Physical Note to that effect);
42
or (B) the transferor holds the U.S. Global Note and is transferring to
a transferee that will take delivery in the form of the U.S. Global
Note.
(e) PROCEDURES AND REQUIREMENTS.
1. If the proposed transfer occurs prior to the Offshore Note
Exchange Date, and the proposed transferor holds:
(A) a U.S. Physical Note, other than the Carfel Note,
which is surrendered to the Note Registrar, and the proposed
transferee or transferor, as applicable:
(i) delivers an Accredited Investor
Certificate and, if required by the Company, a
Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the
proposed transferee requests delivery in the form of
a U.S. Physical Note, then the Note Registrar shall
(x) register such transfer in the name of such
transferee and record the date thereof in its books
and records, (y) cancel such surrendered U.S.
Physical Note and (z) deliver a new U.S. Physical
Note to such transferee duly registered in the name
of such transferee in principal amount equal to the
principal amount being transferred of such
surrendered U.S. Physical Note;
(ii) delivers (or is deemed to have
delivered pursuant to clause (d) above) a Rule 144A
Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in
the U.S. Global Note, then the Note Registrar shall
(x) cancel such surrendered U.S. Physical Note, (y)
record an increase in the principal amount of the
U.S. Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note
and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
transfer; or
(iii) delivers a Regulation S Certificate
and the proposed transferee is or is acting through
an Agent Member and requests that the proposed
transferee receive a beneficial interest in the
Temporary Offshore Global Note, then the Note
Registrar shall (x) cancel such surrendered U.S.
Physical Note, (y) record an increase in the
principal amount of the Temporary Offshore Global
Note equal to the principal amount being transferred
of such surrendered U.S. Physical Note and (z) notify
the Depositary in accordance with the procedures of
the Depositary that it approves of such transfer.
43
In any of the cases described in this Section 312(e)(1)(A),
the Note Registrar shall deliver to the transferor a new U.S.
Physical Note in principal amount equal to the principal
amount not being transferred of such surrendered U.S. Physical
Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee
or transferor, as applicable:
(i) delivers an Accredited Investor
Certificate and, if required by the Company, a
Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the
proposed transferee requests delivery in the form of
a U.S. Physical Note, then the Note Registrar shall
(w) register such transfer in the name of such
transferee and record the date thereof in its books
and records, (x) record a decrease in the principal
amount of the U.S. Global Note in an amount equal to
the beneficial interest therein being transferred,
(y) deliver a new U.S. Physical Note to such
transferee duly registered in the name of such
transferee in principal amount equal to the amount of
such decrease and (z) notify the Depositary in
accordance with the procedures of the Depositary that
it approves of such transfer;
(ii) delivers (or is deemed to have
delivered pursuant to clause (d) above) a Rule 144A
Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in
the U.S. Global Note, then the transfer shall be
effected in accordance with the procedures of the
Depositary therefor; or
(iii) delivers a Regulation S Certificate
and the proposed transferee is or is acting through
an Agent Member and requests that the proposed
transferee receive a beneficial interest in the
Temporary Offshore Global Note, then the Note
Registrar shall (w) register such transfer in the
name of such transferee and record the date thereof
in its books and records, (x) record a decrease in
the principal amount of the U.S. Global Note in an
amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal
amount of the Temporary Offshore Global Note equal to
the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the
Depositary that it approves of such transfer.
(C) the Temporary Offshore Global Note, and the
proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor
Certificate and, if required by the Company, a
Non-Registration Opinion and Supporting Evidence,
44
or delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the
proposed transferee requests delivery in the form of
a U.S. Physical Note, then the Note Registrar shall
(w) register such transfer in the name of such
transferee and record the date thereof in its books
and records, (x) record a decrease in the principal
amount of the Offshore Global Note in an amount equal
to the beneficial interest therein being transferred,
(y) deliver a new U.S. Physical Note to such
transferee duly registered in the name of such
transferee in principal amount equal to the amount of
such decrease and (z) notify the Depositary in
accordance with the procedures of the Depositary that
it approves of such transfer;
(ii) delivers (or is deemed to have
delivered pursuant to clause (d) above) a Rule 144A
Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in
the U.S. Global Note, then the Note Registrar shall
(x) record a decrease in the principal amount of the
Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y)
record an increase in the principal amount of the
U.S. Global Note equal to the amount of such decrease
and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
transfer; or
(iii) delivers a Regulation S Certificate
and the proposed transferee is or is acting through
an Agent Member and requests that the proposed
transferee receive a beneficial interest in the
Temporary Offshore Global Note, then the transfer
shall be effected in accordance with the procedures
of the Depositary therefor; PROVIDED, HOWEVER, that
until the Offshore Note Exchange Date occurs,
beneficial interests in the Offshore Global Note may
be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members
acting for the account thereof), and no person shall
be entitled to effect any transfer or exchange that
would result in any such interest being held
otherwise than in or through such an account.
2. If the proposed transfer occurs on or after the Offshore
Note Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Note, other than the Carfel Note,
which is surrendered to the Note Registrar, and the proposed
transferee or transferor, as applicable:
(i) delivers an Accredited Investor
Certificate and, if required by the Company, a
Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the
proposed transferee requests delivery in
45
the form of a U.S. Physical Note, then the procedures
set forth in Section 312(e)(1)(A)(i) shall apply;
(ii) delivers (or is deemed to have
delivered pursuant to clause (d) above) a Rule 144A
Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in
the Offshore Global Note, then the procedures set
forth in Section 312(e)(1)(A)(ii) shall apply; or
(iii) delivers a Regulation S Certificate,
then the Note Registrar shall cancel such surrendered
U.S. Physical Note and at the direction of the
transferee, either:
(x) register such transfer in the
name of such transferee, record the date
thereof in its books and records and deliver
a new Offshore Physical Note to such
transferee in principal amount equal to the
principal amount being transferred of such
surrendered U.S. Physical Note, or
(y) if the proposed transferee is or
is acting through an Agent Member, record an
increase in the principal amount of the
Offshore Global Note equal to the principal
amount being transferred of such surrendered
U.S. Physical Note and notify the Depositary
in accordance with the procedures of the
Depositary that it approves of such
transfer.
In any of the cases described in this
Section 312(e)(2)(A)(i), (ii) or (iii)(x),
the Note Registrar shall deliver to the
transferor a new U.S. Physical Note in
principal amount equal to the principal
amount not being transferred of such
surrendered U.S. Physical Note, as
applicable.
(B) the U.S. Global Note, and the proposed transferee
or transferor, as applicable:
(i) delivers an Accredited Investor
Certificate and, if required by the Company, a
Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the
proposed transferee requests delivery in the form of
a U.S. Physical Note, then the procedures set forth
in Section 312(e)(1)(B)(i) shall apply; or
(ii) delivers (or is deemed to have
delivered pursuant to clause (d) above) a Rule 144A
Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the
proposed
46
transferee receive a beneficial interest in the U.S.
Global Note, then the procedures set forth in Section
312(e)(1)(B)(ii) shall apply; or
(iii) delivers a Regulation S Certificate,
then the Note Registrar shall (x) record a decrease
in the principal amount of the U.S. Global Note in an
amount equal to the beneficial interest therein being
transferred, (y) notify the Depositary in accordance
with the procedures of the Depositary that it
approves of such transfer and (z) at the direction of
the transferee, either:
(x) register such transfer in the
name of such transferee, record the date
thereof in its books and records and deliver
a new Offshore Physical Note to such
transferee in principal amount equal to the
amount of such decrease, or
(y) if the proposed transferee is or
is acting through an Agent Member, record an
increase in the principal amount of the
Offshore Global Note equal to the amount of
such decrease.
(C) an Offshore Physical Note which is surrendered to
the Note Registrar, and the proposed transferee or transferor,
as applicable:
(i) delivers (or is deemed to have delivered
pursuant to clause (d) above) a Rule 144A Certificate
and the proposed transferee is or is acting through
an Agent Member and requests delivery in the form of
the U.S. Global Note, then the Note Registrar shall
(x) cancel such surrendered Offshore Physical Note,
(y) record an increase in the principal amount of the
U.S. Global Note equal to the principal amount being
transferred of such surrendered Offshore Physical
Note and (z) notify the Depositary in accordance with
the procedures of the Depositary that it approves of
such transfer;
(ii) where the proposed transferee is or is
acting through an Agent Member, requests that the
proposed transferee receive a beneficial interest in
the Offshore Global Note, then the Note Registrar
shall (x) cancel such surrendered Offshore Physical
Note, (y) record an increase in the principal amount
of the Offshore Global Note equal to the principal
amount being transferred of such surrendered Offshore
Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that
it approves of such transfer; or
(iii) does not make a request covered by
Section 312(e)(2)(C)(i) or Section 312(e)(2)(C)(ii),
then the Note Registrar shall (x) register such
transfer in the name of such transferee and record
the date thereof in its books and records, (y) cancel
such surrendered Offshore Physical Note and (z)
deliver a new Offshore Physical Note to
47
such transferee duly registered in the name of such
transferee in principal amount equal to the principal
amount being transferred of such surrendered Offshore
Physical Note.
In any of the cases described in this Section
312(e)(2)(C), the Note Registrar shall deliver to the
transferor a new Offshore Physical Note in principal
amount equal to the principal amount not being
transferred of such surrendered Offshore Physical
Note, as applicable.
(D) the Offshore Global Note, and the proposed
transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered
pursuant to clause (d) above) a Rule 144A Certificate
and the proposed transferee is or is acting through
an Agent Member and requests delivery in the form of
the U.S. Global Note, then the Note Registrar shall
(x) record a decrease in the principal amount of the
Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y)
record an increase in the principal amount of the
U.S. Global Note equal to the amount of such decrease
and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
transfer;
(ii) where the proposed transferee is or is
acting through an Agent Member, requests that the
proposed transferee receive a beneficial interest in
the Offshore Global Note, then the transfer shall be
effected in accordance with the procedures of the
Depositary therefor; or
(iii) does not make a request covered by
Section 312(e)(2)(D)(i) or Section 312(e)(2)(D)(ii),
then the Note Registrar shall (w) register such
transfer in the name of such transferee and record
the date thereof in its books and records, (x) record
a decrease in the principal amount of the Offshore
Global Note in an amount equal to the beneficial
interest therein being transferred, (y) deliver a new
Offshore Physical Note to such transferee duly
registered in the name of such transferee in
principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
transfer.
3 If the proposed transferor holds the Carfel Note, the Note
Registrar shall:
(A) refuse to register such transfer prior to
September 13, 1999; and
(B) after September 13, 1999, only register such
transfer if it is pursuant to an effective Shelf Registration
Statement, by recording an increase in the principal amount of
the applicable Global Note or issuing a Physical
48
Note, in either case in the amount of the Carfel Note and
cancelling the Carfel Note.
(f) EXECUTION, AUTHENTICATION AND DELIVERY OF PHYSICAL NOTES. In any
case in which the Note Registrar is required to deliver a Physical Note
to a transferee or transferor, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, such
Physical Note.
(g) CERTAIN ADDITIONAL TERMS APPLICABLE TO PHYSICAL NOTES. Any
transferee entitled to receive a Physical Note may request that the
principal amount thereof be evidenced by one or more Physical Notes in
any authorized denomination or denominations and the Note Registrar
shall comply with such request if all other transfer restrictions are
satisfied.
(h) TRANSFERS NOT COVERED BY SECTION 312(E). The Note Registrar shall
effect and record, upon receipt of a written request from the Company
so to do, a transfer not otherwise permitted by Section 312(e), such
recording to be done in accordance with the otherwise applicable
provisions of Section 312(e), upon the furnishing by the proposed
transferor or transferee of a Non-Registration Opinion and Supporting
Evidence.
(i) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Note only as provided in the Indenture. The Note Registrar shall not
register a transfer of any Note unless such transfer complies with the
restrictions with respect thereto set forth in this Indenture. The Note
Registrar shall not be required to determine (but may rely upon a
determination made by the Company) the sufficiency or accuracy of any
such certifications, legal opinions, other information or document.
(j) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Note Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) the circumstances
exist contemplated by the fourth paragraph of Section 201 (with respect
to an Offshore Physical Note) or the requested transfer is at least two
years after the original issue date of the Initial Note (with respect
to any Physical Note), (ii) there is delivered to the Note 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 Notes are
exchanged for Exchange Notes pursuant to an Exchange Offer.
49
SECTION 313. FORM OF ACCREDITED INVESTOR CERTIFICATE.
TRANSFEREE LETTER OF REPRESENTATION
SUPREME INTERNATIONAL CORPORATION
c/o State Street Bank And Trust Company
as Trustee
00 Xxxxxxxx
00xx Xxxxx, Xxxxxxxxx Trust Division
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Ladies and Gentlemen:
In connection with our proposed purchase of $_________ aggregate
principal amount of the 12 1/4% Senior Subordinated Notes due 2006 (the "Notes")
of Supreme International Corporation (the "Company"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for our own account or for the
account of such an institutional "accredited investor," and we are acquiring the
Notes for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act or other
applicable securities law and we 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.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act, or any other applicable securities law and
may not be offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes
to offer, sell or otherwise transfer such Notes prior to the date which is two
years after the later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") 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 144A under the Securities Act
("Rule 144A"), to a person we reasonably believe is a "Qualified Institutional
Buyer" within the meaning of Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and 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, (e) to an institutional
"accredited investor" within the
50
meaning of subparagraph (a)(1), (a)(2),(a)(3) or (a)(7) of Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (f) above
prior to the Resale Restriction Termination Date, the transferor shall deliver
to the trustee (the "Trustee") under the Indenture pursuant to which the Notes
are issued a letter from the transferee substantially in the form of this
letter, which shall provide, among other things, that the transferee is a person
or entity as defined in paragraph 1 of this letter and that it is acquiring such
Notes for investment purposes and not for distribution in violation of the
Securities Act. We acknowledge that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer of the Notes pursuant to
clauses (d), (e) or (f) above prior to the Resale Restriction Termination Date
to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. 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 proceeding or official inquiry with respect
to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:_________________________________________
Date:
51
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
NAME ADDRESS TAXPAYER ID NUMBER
---- ------- ------------------
Date of this Certificate: _________ __, 199_
SECTION 314. FORM OF REGULATION S CERTIFICATE.
REGULATION S CERTIFICATE
To: State Street Bank and Trust Company,
as Trustee (the "Trustee")
00 Xxxxxxxx
00xx Xxxxx, Xxxxxxxxx Trust Division
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Re: Supreme International Corporation (the "Company")
12 1/4% SENIOR SUBORDINATED NOTES DUE 2006 (THE "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $_______ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S ("Regulation S") under the Securities Act of 1933,
as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Notes was not made to a person in the United States
(unless such person or the account held by it for which it is acting is excluded
from the definition of "U.S. person" pursuant to Rule 902(o) of Regulation S
under the circumstances described in Rule 902(i)(3) of Regulation S) or
specifically targeted at an identifiable group of U.S. citizens abroad.
52
2. Either (a) at the time the buy order was originated, the buyer was
outside the United States or we and any person acting on our behalf reasonably
believed that the buyer was outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated offshore securities
market, and neither we nor any person acting on our behalf knows that the
transaction was pre-arranged with a buyer in the United States.
3. Neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Notes, and the proposed transfer
takes place before the Offshore Note Exchange Date referred to in the Indenture,
dated as of April 6, 1999, among the Company, the guarantors thereunder and the
Trustee, or we are an officer or director of the Company or a distributor, we
certify that the proposed transfer is being made in accordance with the
provisions of Rules 903 and 904(c) of Regulation S.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding 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 SELLER]
By:______________________________________
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
53
SECTION 315. FORM OF RULE 144A CERTIFICATE.
RULE 144A CERTIFICATE
To: State Street Bank and Trust Company
as Trustee (the "Trustee")
00 Xxxxxxxx
00xx Xxxxx, Xxxxxxxxx Trust Division
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Re: Supreme International Corporation (the "Company")
12 1/4% SENIOR SUBORDINATED NOTES DUE 2006 (THE "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $______ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"). We are aware that the transfer of Notes to us is
being made in reliance on the exemption from the provisions of Section 5 of the
Securities Act provided by Rule 144A. Prior to the date of this Certificate we
have been given the opportunity to obtain from the Company the information
referred to in Rule 144A(d)(4), and have either declined such opportunity or
have received such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:______________________________________
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
54
SECTION 316. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices of redemption,
repurchase or other notices to Holders as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Notes or as contained
in any notice of a redemption or repurchase and that reliance may be placed only
on the serial or other identification numbers printed on the Notes, and any such
redemption or repurchase shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any change in the
CUSIP numbers.
SECTION 317. ISSUANCE OF ADDITIONAL NOTES.
The Company may, subject to Article Ten of this Indenture, issue
additional Notes having identical terms and conditions to the Initial Notes
issued on the Issuance Date (the "Additional Notes"); provided that the
aggregate principal amount of Initial Notes issued on the Issuance Date and the
aggregate principal amount of Additional Notes issued under this Indenture shall
not exceed $125,000,000. The Initial Notes issued on the Issuance Date and any
Additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture. Exchange Notes issued in exchange for Initial
Notes issued on the Issuance Date and Exchange Notes issued for any Additional
Notes subsequently issued shall be treated as a single class for all purposes
under this Indenture.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to Notes (except as to any surviving rights of registration
of transfer or exchange of Notes expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, and (ii) Notes for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
55
(B) all Notes and, in the case of (i) or (ii)
below, not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company or any Subsidiary Guarantor,
in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose
an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, for principal (and
premium, if any) and interest on the Notes to the
date of such deposit (in the case of Notes which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute
a default under, any other instrument or agreement to which the Company
or any Subsidiary Guarantor is a party or by which it is bound;
(3) the Company or any Subsidiary Guarantor has paid or caused
to be paid all other sums payable hereunder by the Company or any
Subsidiary Guarantor;
(4) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of such Notes
at maturity or the Redemption Date, as the case may be; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
56
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 401 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 and any
Subsidiary Guarantor's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
401; PROVIDED that if the Company has made any payment of principal of, premium,
if any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Note when it
becomes due and payable and continuance of such default for a period of
30 days;
(2) default in the payment of the principal of, or premium, if
any, on any Note at its Maturity (upon acceleration, optional
redemption, required purchase or otherwise);
(3) default in the performance, or breach, of the provisions
of Article Eight, the failure to make or consummate a Change in Control
Offer in accordance with Section 1013 or the failure to make or
consummate an Excess Proceeds Offer in accordance with Section 1014;
57
(4) default in the performance, or breach, of any covenant or
agreement of the Company or any Subsidiary Guarantor contained in this
Indenture or any Note Guarantee (other than a default in the
performance, or breach, of a covenant or warranty which is specifically
dealt with in clause (1), (2) or (3) of this Section 501) and
continuance of such default or breach for a period of 30 days after
written notice shall have been given to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of all Outstanding Notes;
(5)(a) one or more defaults in the payment of principal of or
premium, if any, on Indebtedness of the Company or any Restricted
Subsidiary aggregating $10 million or more, when the same becomes due
and payable at the Stated Maturity thereof, and such default or
defaults shall have continued after any applicable grace period and
shall not have been cured or waived or (b) Indebtedness of the Company
or any Restricted Subsidiary aggregating $10 million or more shall have
been accelerated or otherwise declared due and payable, or required to
be prepaid or repurchased (other than by regularly scheduled required
prepayment) prior to the Stated Maturity thereof;
(6) one or more judgments or orders shall be rendered against
the Company or any Restricted Subsidiary for the payment of money,
either individually or in an aggregate amount, in excess of $10 million
and shall not be discharged and either (a) an enforcement proceeding
shall have been commenced by any creditor upon such judgment or order
or (b) there shall have been a period of 60 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, was not in effect;
(7) any Note Guarantee of a Significant Subsidiary ceases to
be in full force and effect or is declared null and void or any Note
Guarantees of Significant Subsidiaries is found to be invalid or any
Subsidiary Guarantor which is a Significant Subsidiary denies that it
has any further liability under any Note Guarantee, or gives notice to
such effect (other than by reason of the termination of this Indenture
or the release of any such Note Guarantee in accordance with this
Indenture);
(8) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of 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 that it is generally not paying its debts (other than
debts which are the subject of a bona fide dispute) as they become due;
or
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect for
60 days and: (A) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case; (B) appoints a
Custodian of the Company or any of its Significant Subsidiaries
58
or for all or substantially all of the property of the Company or any
of its Significant Subsidiaries; or (C) orders the liquidation of the
Company or any of its Significant Subsidiaries; provided that clauses
(A), (B) and (C) shall not apply to an Unrestricted Subsidiary, unless
such action or proceeding has a material adverse effect on the
interests of the Company or any Restricted Subsidiary.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
clause (8) or (9) of Section 501) occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee, upon the
written request of such Holders, shall declare the principal of, premium, if
any, and accrued interest on all of the Outstanding Notes to be due and payable
immediately. Upon any such declaration all such amounts payable in respect of
the Notes shall become immediately due and payable. If an Event of Default
specified in clause (8) or (9) of Section 501 occurs and is continuing, then the
principal of, premium, if any, and accrued interest on all of the Outstanding
Notes shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in aggregate principal amount of the Outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Notes that has become due otherwise than by such
declaration of acceleration together with interest on such
unpaid principal at the rate borne by such Notes,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate
borne by such Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
(2) all Events of Default, other than the non-payment of
amounts of principal (or premium, if any, on) or interest on Notes
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Xxxxxxx 000,
00
Xx such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by such Notes, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any Subsidiary Guarantor (in accordance with the
applicable Note Guarantee) or any other obligor upon such Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company, any Subsidiary Guarantor or any other obligor upon
such Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the Note Guarantees by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, including seeking recourse against any Subsidiary Guarantor,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy, including, without limitation, seeking recourse against
any Subsidiary Guarantor.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including any
Subsidiary Guarantor, upon the Notes or the
60
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes,
to take such other actions (including participating as a member, voting
or otherwise, of any official committee of creditors appointed in such
matter) and to file such 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 of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding; PROVIDED, HOWEVER, that the
Trustee may, on behalf of such Holders, vote for the election of a trustee in
bankruptcy or other similar official.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture, the Notes or the
Note Guarantees may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of
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the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any, on) and interest on the Notes in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Notes for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company or any other obligor on the Notes, as their interests may
appear or as a court of competent jurisdiction may direct; PROVIDED that all
sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made a written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 30-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture, any Note or any Note Guarantee to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, any Note or any Note Guarantee, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Eleven) and in
such Note of the principal of (and premium, if any, on) and (subject to Section
307) interest on, such Note on the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or any Note Guarantee and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, any
Subsidiary Guarantor, any other obligor on the Notes, the Trustee and the
Holders of Notes shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Notes is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 315 of the Trust Indenture Act, the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or that the Trustee determines in good faith is
unjustly prejudicial to the Holders of Notes not consenting, it being
understood that, subject to Section 601, the Trustee shall have no duty
to ascertain whether or not such actions or forbearances are unjustly
prejudicial to such holders.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Sections 508, 902 and the last paragraph of Section 502, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes) may on behalf of the Holders of all the Notes
waive any past default hereunder and its consequences under this Indenture or
any Note Guarantee, except a default
(1) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, any 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 and the Note Guarantees; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company, the Subsidiary Guarantors and any other obligor on
the Notes covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which would prohibit
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or forgive the Company, any Subsidiary Guarantor or any such obligor from paying
all or any portion of the principal of, premium, if any, or interest on the
Notes contemplated herein or in the Notes or which may affect the covenants or
the performance of this Indenture; and each of the Company, the Subsidiary
Guarantors and any other obligor on the Notes (to the extent that it may
lawfully do so) 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of a Default or an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith or willful misconduct on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture, but not to verify the contents thereof.
(b) In case a Default or an Event of Default has occurred and is
continuing of which a Responsible Officer of the Trustee has actual
knowledge or of which written notice of such Default or Event of
Default shall have been given to the Trustee by the Company, any other
obligor of the Notes or by any Holder, 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 Person
would exercise or use under the circumstances in the conduct of such
Person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, EXCEPT that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of
the Outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) 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 duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions
of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within ten days after the earlier of receipt from the Company of notice
of the occurrence of any Default or Event of Default hereunder or the date when
such Default or Event of Default becomes known to the Trustee, the Trustee shall
transmit, in the manner and to the extent provided in TIA Section 313(c), notice
of such Default or Event of Default hereunder known to the Trustee, unless such
Default or Event of Default shall have been cured or waived; PROVIDED, HOWEVER,
that, except in the case of a Default or Event of Default in the payment of the
principal of (or premium, if any, on) or interest on any Note, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers'
Certificate;
(4) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Notes pursuant to this Indenture,
unless such Holders 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;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(9) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(10) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty; and
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(11) except for a default under Sections 501(1) or (2) hereof, or any
other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall
not be deemed to have notice of any default or Event of Default unless
specifically notified in writing of such event by the Company or the
Holders of not less than 25% in aggregate principal amount of the Notes
then outstanding; as used herein, the term "actual knowledge" means the
actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and that
the statements made by it in its Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Notes or the proceeds thereof.
SECTION 605. MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
TIA Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Note Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
All money received by the Trustee shall, until used or applied as
herein provided, be held in trust hereunder for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
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(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel and costs and
expenses of collection), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and its
agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against, or investigating, any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any, on) or interest
on particular Notes.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(8) or Section 501(9), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation of the Trustee for the services are intended to constitute expenses
of administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and which shall have an office in
The City of New York, and shall have a combined capital and surplus of at least
$50,000,000. If the Trustee does not have an office in The City of New York, the
Trustee may appoint an agent in The City of New York reasonably acceptable to
the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of
00
xxxxxxx, xxxxx, xxxxxxxxxxx or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor
trustee by written instrument executed by authority of the Board of
Directors, a copy of which shall be delivered to the resigning Trustee
and a copy to the successor trustee. If the instrument of acceptance by
a successor Trustee required by Section 610 shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes by
Act of the Holders of not less than a majority in principal amount of
the Outstanding Notes, delivered to the Trustee and to the Company. If
the instrument of acceptance by a successor Trustee required by Section
610 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a BONA FIDE Holder of a Note for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a Custodian of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e), any
Holder who has been a BONA FIDE Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Notes
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Notes, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Notes shall be
appointed by Act of the Holders of a majority in aggregate principal
amount of the Outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee
with respect to the Notes and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Notes shall have been so appointed by the Company or the Holders
and accepted appointment in the manner hereinafter provided, any Holder
who has been a BONA FIDE Holder of a Note for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes to the Holders of Notes in
the manner provided for in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Notes and the address
of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Each successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (a) of this Section.
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(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance, such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In case at that time
any of the Notes shall not have been authenticated, any successor Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor Trustee. In all such cases such certificates shall
have the full force and effect which this Indenture provides that the
certificate of authentication of the Trustee shall have; PROVIDED, HOWEVER, that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Notes in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 612. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Notes remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to the Notes which shall
be authorized to act on behalf of the Trustee to authenticate Notes and the
Trustee shall give written notice of such appointment to all Holders of Notes
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If
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at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Notes, in the manner provided for in Section
106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time such compensation for its services under this Section as shall be agreed in
writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:______________________________________________
as Authenticating Agent
By:______________________________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in Subsection (a)
hereof as of a date not more than 15 days prior to the time such list
is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished.
SECTION 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 703. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Notes pursuant to this Indenture, the Trustee
shall transmit to the Holders of Notes (with a copy to the Company at the Place
of Payment), in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company will not, in a single transaction or through a series of
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease
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or otherwise dispose of all or substantially all of its properties and assets to
any other Person or Persons or permit any of its Restricted Subsidiaries to
enter into any such transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and its Restricted Subsidiaries on a
consolidated basis to any other Person or Persons, unless at the time and
immediately after giving effect thereto:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or
into which the Company or such Restricted Subsidiary is merged or the
Person that acquires by sale, assignment, conveyance, transfer, lease
or disposition all or substantially all of the properties and assets of
the Company and its Restricted Subsidiaries on a consolidated basis
(the "Surviving Entity") (i) will be a corporation duly organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and (ii) will expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustees, in form reasonably satisfactory to the Trustee, the
Company's obligation for the due and punctual payment of the principal
of (and premium, if any) and interest on all the Notes and the
performance and observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a PRO FORMA basis (and
treating any obligation of the Company or any Restricted Subsidiary
incurred in connection with or as a result of such transaction or
series of transactions as having been incurred at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing;
(c) immediately after giving effect to such transaction or series of
transactions on a PRO FORMA basis (on the assumption that the
transaction or series of transactions occurred on the first day of the
four-quarter period immediately prior to the consummation of such
transaction or series of transactions with the appropriate adjustments
with respect to the transaction or series of transactions being
included in such PRO FORMA calculation), the Company (or the Surviving
Entity if the Company is not the continuing obligor under this
Indenture) could incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 1008;
(d) each Subsidiary Guarantor, if any, unless it is the other party to
the transactions described above, shall have by supplemental indenture
confirmed that its Note Guarantee will apply to such Person's
obligations hereunder and under the Notes;
(e) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1012 are complied with; and
(f) the Company or the Surviving Entity shall have delivered to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and
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an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, conveyance, transfer, lease or other disposition, and
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 801
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 802. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ONLY
ON CERTAIN TERMS.
Each Subsidiary Guarantor, if any (other than any Subsidiary
whose Note Guarantee is being released pursuant to the provisions of
Section 1309 as a result of such transaction), will not, and the
Company will not permit a Subsidiary Guarantor to, in a single
transaction or through a series of related transactions, merge or
consolidate with or into any other corporation or other entity (other
than the Company or any Subsidiary Guarantor), or sell, assign, convey,
transfer, lease or otherwise dispose of its properties and assets on a
consolidated basis substantially as an entirety to any entity (other
than the Company or any Subsidiary Guarantor) unless at the time and
after giving effect thereto:
(a) either (1) such Subsidiary Guarantor shall be the continuing
corporation or (2) the Person (if other than such Subsidiary Guarantor)
formed by such consolidation or into which such Subsidiary Guarantor is
merged or the entity which acquires by sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of such Subsidiary Guarantor, as the case may be,
shall be a corporation organized and validly existing under the laws of
the United States, any state thereof or the District of Columbia, and
shall expressly assume by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
obligations of such Subsidiary Guarantor under the Notes and this
Indenture;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a PRO FORMA basis (and
treating any obligation of the Company or such Subsidiary Guarantor
incurred in connection with or as a result of such transaction or
series of transactions as having been incurred at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing; and
(c) such Subsidiary Guarantor or such Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, conveyance,
transfer, lease or disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Section 802 and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
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SECTION 803. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company or any Subsidiary Guarantor in accordance with Sections
801 and 802, the successor Person formed by such consolidation or into which the
Company or such Subsidiary Guarantor, as the case may be, is merged or the
successor Person to which such sale, assignment, conveyance, transfer, lease or
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Subsidiary Guarantor, as the case
may be, under this Indenture and/or the Note Guarantees, as the case may be,
with the same effect as if such successor had been named as the Company or such
Subsidiary Guarantor, as the case may be, herein and/or the Note Guarantees, as
the case may be. When a successor assumes all the obligations of its predecessor
hereunder, the Notes or a Note Guarantee, as the case may be, the predecessor
shall be released from all obligations; PROVIDED that in the case of a transfer
by lease, the predecessor shall not be released from the payment of principal
and interest or other obligations on the Notes or a Note Guarantee, as the case
may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company or any Subsidiary
Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Company, a
Subsidiary Guarantor or any other obligor on the Notes, and the
assumption by any such successor of the covenants of the Company or
such obligor or Subsidiary Guarantor contained herein and in the Notes
and in any Note Guarantee in accordance with Article Eight;
(2) to add to the covenants of the Company, any Subsidiary Guarantor or
any other obligor upon the Notes for the benefit of the Holders or to
surrender any right or power conferred upon the Company, or any
Subsidiary Guarantor or any other obligor on the Notes, as applicable,
herein, in the Notes or in any Note Guarantee;
(3) to cure any ambiguity, or to correct or supplement any provision
herein, in the Notes or in any Note Guarantee which may be defective or
inconsistent with any other provision herein, in the Notes or in any
Note Guarantee or to make any other provisions with respect to matters
or questions arising under this Indenture, the Notes or any Note
Guarantee; PROVIDED that, in each case, such provisions shall not
adversely affect the interests of the Holders;
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(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act;
(5) to add a Subsidiary Guarantor of the Notes under this Indenture;
(6) to evidence and provide for the acceptance of the appointment of a
successor Trustee under this Indenture; or
(7) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Company's and any
Subsidiary Guarantor's obligations under this Indenture, in any
property, or assets, including any of which are required to be
mortgaged, pledged or hypothecated, or in which a security interest is
required to be granted to the Trustee pursuant to this Indenture or
otherwise.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Notes that are affected thereby, by Act of
said Holders delivered to the Company, the Subsidiary Guarantors and the
Trustee, the Company and the Subsidiary Guarantors, when authorized by or
pursuant to their respective Board Resolutions, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of Notes
under this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby (in the case of clause (8) below, Holders of all Notes other than
Exchange Notes),
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Note, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any
Note or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date);
(2) amend, change or modify any of the provisions of Section 1013 or
Section 1014 including any definitions relating thereto in any manner
materially adverse to the Holders;
(3) reduce the percentage in principal amount of Outstanding Notes, the
consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this
Indenture;
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(4) modify any provisions of this Section, Section 1021 or Section 513,
except to increase the percentage in principal amount of the
Outstanding Notes required to take any of the actions described therein
or to provide that certain additional provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or any Subsidiary Guarantor of
any of their rights or obligations under this Indenture;
(6) amend or modify any of the provisions of Article Thirteen in any
manner adverse to the Holders;
(7) modify any of the provisions of this Indenture relating to the
subordination of the Notes in a manner adverse to the Holders; or
(8) modify any of the provisions of this Indenture relating to the
transfer or exchange of the Carfel Note.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the
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Company shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Notes.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company, any Subsidiary Guarantor
and the Trustee of any supplemental indenture pursuant to the provisions of
Section 902, the Company shall give notice thereof to the Holders of each
Outstanding Note affected, in the manner provided for in Section 106, setting
forth in general terms the substance of such supplemental indenture.
SECTION 908. EFFECT ON SENIOR INDEBTEDNESS.
No supplemental indenture shall adversely affect the rights of the
holders of Senior Indebtedness under Article Twelve of this Indenture without
the consent of such holders affected thereby.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
Notes that it will duly and punctually pay the principal of (and premium, if
any, on) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York an office or agency
where Notes may be presented or surrendered for payment (the "Place of
Payment"), where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company hereby designates the
Corporate Trust Office as the Place of Payment.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of the Place of Payment. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive such respective presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to or on each due date of the principal of (and premium,
if any, on) or interest on any Notes, deposit with a Paying Agent a sum in same
day funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest on the Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal of
(and premium, if any) or interest on the Notes; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying
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Agent, such sums to be held by the Trustee upon the same trusts as those upon
which sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment to the Company, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the corporate rights (charter and
statutory), licenses and franchises of the Company and each Subsidiary;
PROVIDED, HOWEVER, that, subject to the other provisions of this Indenture, the
Company shall not be required to preserve any such existence (except the
Company), right, license or franchise 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 Subsidiaries as a whole and that the loss
thereof is not, and will not be, disadvantageous in any material respect to the
Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, would by
law become a material liability or lien upon the property of the Company or any
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate reserves, if necessary (in
the good faith judgment of management of the Company) are being maintained in
accordance with GAAP.
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SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all material properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Restricted Subsidiary and not adverse in
any material respect to the Holders.
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company and each Subsidiary Guarantor will deliver to the
Trustee, within 45 days after the end of each fiscal quarter and within
120 days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company or the
Subsidiary Guarantor, as the case may be, during the preceding quarter
or the preceding fiscal year, as the case may be, has been made under
the supervision of the signing officers with a view to determining
whether it has kept, observed, performed and fulfilled, and has caused
each of its Restricted Subsidiaries to keep, observe, perform and
fulfill its obligations under this Indenture and further stating, as to
each such officer signing such certificate, that, to the best of his or
her knowledge, the Company during such preceding quarter or the
preceding fiscal year, as the case may be, has kept, observed,
performed and fulfilled, and has caused each of its Subsidiaries to
keep, observe, perform and fulfill each and every such covenant
contained in this Indenture and no Default or Event of Default occurred
during such quarter or year, as the case may be, and at the date of
such certificate there is no Default or Event of Default which has
occurred and is continuing or, if such signers do know of such Default
or Event of Default, the certificate shall describe its status, with
particularity and that, to the best of his or her knowledge, no event
has occurred and remains by reason of which payments on the account of
the principal of or interest, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action
each is taking or proposes to take with respect thereto. The Officers'
Certificate shall also notify the Trustee should the Company elect to
change the manner in which it fixes its fiscal year-end. For purposes
of this Section 1007(a), such compliance shall be determined without
regard to any period of grace or requirement of notice under this
Indenture.
(b) When any Default or Event of Default has occurred and is continuing
under this Indenture, or if the trustee for or the holder of any other
evidence of Indebtedness of the Company or any Restricted Subsidiary
gives any notice or takes any other action with respect to a claimed
default (other than with respect to Indebtedness in the principal
amount of less than $10,000,000), the Company shall deliver to the
Trustee
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by registered or certified mail or by telegram, telex or facsimile
transmission an Officers' Certificate specifying such event, notice or
other action within five Business Days of its occurrence.
SECTION 1008. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any Restricted Subsidiary to,
create, issue, assume, guarantee or in any manner become directly or indirectly
liable for the payment of, or otherwise incur (collectively, "incur"), any
Indebtedness (including any Acquired Indebtedness), other than Permitted
Indebtedness; PROVIDED, HOWEVER, that (i) the Company and any Subsidiary
Guarantor may incur Indebtedness (other than Acquisition Indebtedness) if at the
time of such incurrence the Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the incurrence of such
Indebtedness, taken as one period, would have been at least equal to 2:1 and
(ii) the Company and any Guarantor may incur Acquisition Indebtedness if at the
time of such incurrence the Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the incurrence of such
Indebtedness, taken as one period, would have been at least equal to 2.5:1.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
to holders of, any shares of the Capital Stock of the Company or any
Restricted Subsidiary (other than dividends or distributions payable
solely in shares of Qualified Capital Stock of the Company or in
options, warrants or other rights to acquire such shares of Qualified
Capital Stock) (other than the declaration or payment of dividends or
distributions to the extent declared or paid to the Company or any
Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any shares of Capital Stock of the
Company or any Affiliate of the Company (other than Capital Stock of
any Wholly Owned Restricted Subsidiary) or any options, warrants or
other rights to acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness of the Company or any Restricted Subsidiary;
or
(iv) make any Investment (other than any Permitted Investment)
in any Person
(such payments or other actions described in (but not excluded from) clauses (i)
through (iv) are collectively referred to as "Restricted Payments"), unless at
the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted
84
Payment, if other than cash, being the Fair Market Value of the assets to be
transferred) (1) no Default or Event of Default shall have occurred and be
continuing, (2) the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 1008 and
(3) the aggregate amount of all Restricted Payments declared or made after the
Issuance Date shall not exceed the sum of:
(A) 50% of the Consolidated Adjusted Net Income of the Company accrued
on a cumulative basis during the period beginning on the Issuance Date
and ending on the last day of the Company's last fiscal quarter ending
prior to the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income shall be a loss,
minus 100% of such loss), PLUS
(B) the aggregate net cash proceeds received after the Issuance Date by
the Company from the issuance or sale (other than to any Subsidiary) of
shares of Qualified Capital Stock of the Company (including upon the
exercise of options, warrants or rights) or warrants, options or rights
to purchase shares of Qualified Capital Stock of the Company, PLUS
(C) the aggregate net cash proceeds received after the Issuance Date by
the Company from the issuance or sale (other than to any Subsidiary) of
debt securities or Redeemable Capital Stock that have been converted
into or exchanged for Qualified Capital Stock of the Company, to the
extent such securities were originally sold for cash, together with the
aggregate net cash proceeds received by the Company (other than from a
Subsidiary) in connection with such conversion or exchange, PLUS
(D) to the extent that any Investment constituting a Restricted Payment
that was made after the Issuance Date is sold or is otherwise
liquidated or repaid, an amount (to the extent not included in
Consolidated Adjusted Net Income) equal to the lesser of (x) the cash
proceeds with respect to such Investment (less the cost of the
disposition of such Investment and net of taxes) and (y) the initial
amount of such Investment, PLUS
(E) so long as the Designation thereof was treated as a Restricted
Payment that was made after the Issuance Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issuance Date in accordance with Section 1019, the
Fair Market Value of the Company's interest in such Subsidiary at the
time of such redesignation; PROVIDED that such amount shall not in any
case exceed the Designation Amount with respect to such Restricted
Subsidiary upon its Designation, MINUS the Designation Amount (measured
as of the date of Designation) with respect to any Restricted
Subsidiary which has been designated as an Unrestricted Subsidiary
after the date of the Indenture in accordance with Section 1013, PLUS
(F) $1 million.
(b) Notwithstanding paragraph (a) above, the Company and its
Restricted Subsidiaries may take the following actions so long as (with
respect to clauses (ii), (iii),
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(iv), (v) and (vi) below) at the time of and after giving effect
thereto no Default or Event of Default shall have occurred and be
continuing:
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at such date of
declaration the payment of such dividend would have complied
with the provisions of paragraph (a) above;
(ii) the purchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the
Company in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance and sale (other than to a
Subsidiary) of, shares of Qualified Capital Stock of the
Company;
(iii) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated
Indebtedness in exchange for, or out of the net cash proceeds
of a substantially concurrent issuance and sale (other than to
a Subsidiary) of, shares of Qualified Capital Stock of the
Company;
(iv) the purchase of any Indebtedness that is
expressly subordinated in right of payment to the Notes at a
purchase price not greater than 101% of the principal amount
thereof in the event of a Change in Control in accordance with
provisions similar to those of Section 1013; PROVIDED that
prior to such purchase the Company has made the Change in
Control Offer as provided in Section 1013 and has purchased
all Notes validly tendered for payment in connection with such
Change in Control Offer;
(v) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated
Indebtedness (other than Redeemable Capital Stock) in exchange
for, or out of the net cash proceeds of a substantially
concurrent incurrence (other than to a Subsidiary) of, new
Subordinated Indebtedness of the Company or the Restricted
Subsidiary whose Subordinated Indebtedness is being purchased,
redeemed, defeased, acquired or retired, so long as (A) the
principal amount of such new Subordinated Indebtedness does
not exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of
the date of determination) of the Indebtedness being so
purchased, redeemed, defeased, acquired or retired, PLUS
either the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of such
Indebtedness being refinanced or the amount of any premium
reasonably determined by the Company as necessary to
accomplish such refinancing, PLUS, in either case, the amount
of reasonable expenses of the Company incurred in connection
with such refinancing, (B) such new Subordinated Indebtedness
is subordinated to the Notes to the same extent as such
Indebtedness so purchased, redeemed, defeased, acquired or
retired and (C) such new Indebtedness has an Average Life
longer than the Average Life of the Notes and no scheduled
principal payment prior to the 91st day after the
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final Stated Maturity of principal later than the final Stated
Maturity of principal of the Notes; and
(vi) purchases or redemptions of Capital Stock
(including cash settlements of stock options) held by
employees, officers or directors of the Company or any of its
Subsidiaries upon their death, disability or termination of
employment with the Company or one of its Subsidiaries;
PROVIDED that such payments shall not exceed $1 million in any
fiscal year in the aggregate or $3 million in the aggregate
during the term of the Notes.
The actions described in clauses (i), (ii), (iii), (iv) and (vi) of
this paragraph (b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under clause (3) of
paragraph (a) above and the actions described in clause (v) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph
(a).
SECTION 1010. LIMITATION ON ISSUANCES AND SALES OF PREFERRED STOCK BY
RESTRICTED SUBSIDIARIES.
The Company (i) shall not permit any Restricted Subsidiary to issue any
Preferred Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (ii) shall not permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary) to own any Preferred Stock of any Restricted
Subsidiary.
SECTION 1011. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or suffer to exist any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of the Company or any Restricted Subsidiary (other
than the Company or a Wholly Owned Restricted Subsidiary) (collectively,
"Interested Persons"), unless (i) such transaction or series of transactions are
on terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than would have been able to be obtained in an
arm's-length transaction with third parties that are not Interested Persons,
(ii) with respect to any transaction or series of related transactions involving
aggregate consideration equal to or greater than $1 million, the Company has
delivered an Officers' Certificate to the Trustee certifying that such
transaction or series of transactions complies with clause (i) above, (iii) with
respect to any transaction or series of related transactions involving aggregate
consideration equal to or greater than $5 million, such transaction or series of
related transactions (x) has been approved by the Board of Directors of the
Company (including a majority of the Disinterested Directors of the Company) or
(y) the Company has obtained a written opinion from a nationally recognized
investment banking or valuation firm certifying that such transaction or series
of related transactions is fair to the Company or its Restricted Subsidiary, as
the case may be, from a financial point of view and
87
(iv) with respect to any transaction or series of related transactions involving
aggregate consideration equal to or greater than $10 million, the Company has
obtained a written opinion from a nationally recognized investment banking or
valuation firm certifying that such transaction or series of transactions is
fair to the Company or its Restricted Subsidiaries, as the case may be, from a
financial point of view; PROVIDED, HOWEVER, that this Section 1011 shall not
restrict (1) the Company from paying regular compensation and fees to directors
of the Company or any Restricted Subsidiary who are not employees of the Company
or any Restricted Subsidiary which are reasonable and customary for comparable
companies in the same industry, (2) loans and advances to officers, directors
and employees of the Company or any Restricted Subsidiary in the ordinary course
of business in accordance with the past practices of the Company or any
Restricted Subsidiary not to exceed $1 million in the aggregate outstanding at
any time, (3) any transactions made in compliance with Section 1009, (4) the
performance of any written agreement as in effect on the Issuance Date, (5) the
joint leasing of offices with Carfel, Inc. in Beijing, the People's Republic of
China, and Taipei, the Republic of China, under such arrangements as are in
effect on the Issuance Date and as such arrangements may be renewed on
substantially similar terms and (6) the leasing of approximately 32,000 square
feet of warehouse space and 16,900 square feet of office space from Xxxxxx
Xxxxxxxxxxx or his Affiliates, on a month-to-month basis at monthly rents not to
exceed $12,000 each.
SECTION 1012. LIMITATION ON LIENS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer
to exist any Lien securing Pari Passu Indebtedness or Subordinated
Indebtedness on or with respect to any of its property or assets,
including any shares of stock or indebtedness of any Restricted
Subsidiary, whether owned at the Issuance Date or thereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of
any Lien securing Pari Passu Indebtedness, the Notes or the Note
Guarantee of such Restricted Subsidiary, as the case may be, are
secured by a Lien on such property, assets or proceeds that is senior
in priority to or PARI PASSU with such Lien and (y) in the case of any
Lien securing Subordinated Indebtedness, the Notes or the Subsidiary
Guarantee of such Restricted Subsidiary, as the case may be, are
secured by a Lien on such property, assets or proceeds that is senior
in priority to such Lien; PROVIDED, HOWEVER, that this covenant shall
not apply to Liens as in effect on the date of the Indenture securing
the Lease.
SECTION 1013. PURCHASE OF NOTES UPON CHANGE IN CONTROL.
(a) If a Change in Control shall occur at any time, then each Holder of
Notes will have the right to require that the Company purchase such
Holder's Notes, in whole or in part in integral multiples of $1,000, at
a purchase price (the "Change in Control Purchase Price") in cash in an
amount equal to 101% of the principal amount thereof, plus accrued
interest, if any, to the date of purchase (the "Change in Control
Purchase Date"), pursuant to the offer described below (the "Change in
Control Offer") and the other procedures set forth in this Indenture.
88
(b) Within 30 days following any Change in Control, the Company shall
notify the Trustee thereof and give written notice of such Change in
Control to each Holder of Notes by first-class mail, postage prepaid,
at the address of such Holder appearing in the Note Register, stating,
among other things, (i) the Change in Control Purchase Price and the
Change in Control Purchase Date, which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice
is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act or any applicable securities laws
or regulations; (ii) that any Note not tendered will continue to accrue
interest; (iii) that, unless the Company defaults in the payment of the
Change in Control Purchase Price, any Notes accepted for payment
pursuant to the Change in Control Offer shall cease to accrue interest
after the Change in Control Purchase Date; (iv) that Holders electing
to have any Notes purchased pursuant to a Change in Control Offer shall
be required to surrender the Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change in Control
Purchase Date; (v) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change in Control
Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing
its election to have such Notes purchased; (vi) that Holders whose
Notes are being purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; (vii) the
instructions that the Holders of Notes must follow in order to tender
their Notes; and (viii) the circumstances and relevant facts regarding
such Change in Control.
(c) The Company shall comply with the requirements of the tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws and regulations in connection with a Change
in Control Offer.
(d) The Company shall not, and shall not permit any Restricted
Subsidiary to, create or permit to exist or become effective any
restriction (other than restrictions existing under the Senior Credit
Facility or under Indebtedness as in effect on the Issuance Date) that
would materially impair the ability of the Company to make a Change in
Control Offer to purchase the Notes or, if such Change in Control Offer
is made, to pay for the Notes tendered for purchase.
(e) Prior to complying with the provisions of this Section 1013, but in
any event within 30 days following a Change in Control, the Company
shall either terminate all commitments and repay in full all
Indebtedness under the Senior Credit Facility and or obtain the
requisite consents, if any, under the Senior Credit Facility to permit
the purchase of the Notes as provided for under this Section 1013.
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SECTION 1014. LIMITATION ON SALE OF ASSETS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless
(i) the consideration received by the Company or such Restricted
Subsidiary for such Asset Sale is not less than the fair market value
of the assets sold (as determined by the Board of Directors of the
Company, whose determination shall be conclusive and evidenced by a
Board Resolution) and (ii) at least 75% of such consideration consists
of cash or Cash Equivalents; PROVIDED, HOWEVER, that (I) the amount of
any Indebtedness of a Restricted Subsidiary that is not a Subsidiary
Guarantor or any Senior Indebtedness of the Company or Guarantor Senior
Indebtedness of any Subsidiary Guarantor that is assumed by the
transferee in such Asset Sale and from which the Company and the
Restricted Subsidiaries are fully released shall be deemed to be cash
for purposes of determining the percentage of cash consideration
received by the Company and its Restricted Subsidiaries (excluding any
liabilities that are incurred in connection with or in anticipation of
such Asset Sale) and (II) any securities, notes or other similar
obligations received by the Company or such Restricted Subsidiary from
such transferee that are converted, sold or exchanged within 30 days of
the related Asset Sale into cash or Cash Equivalents (to the extent of
the cash or Cash Equivalents received) shall be deemed to be cash for
purposes of determining the percentage of cash consideration received
by the Company or the Restricted Subsidiaries.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company may use the Net Cash Proceeds thereof, within 365
days after such Asset Sale, to (i) permanently repay or prepay any then
outstanding Indebtedness of any Restricted Subsidiary that is not a
Guarantor or Senior Indebtedness of the Company or Senior Guarantor
Indebtedness of any Restricted Subsidiary (and to correspondingly
reduce commitments with respect thereto) or (ii) invest (or enter into
a legally binding agreement to invest) in other properties or assets to
replace the properties or assets that were the subject of the Asset
Sale or in properties and assets that will be used in businesses of the
Company or its Restricted Subsidiaries, as the case may be, existing at
the time such assets are sold. If any such legally binding agreement to
invest such Net Cash Proceeds is terminated, then the Company may,
within 90 days of such termination or within 365 days of such Asset
Sale, whichever is later, invest such Net Cash Proceeds as provided in
clause (i) or (ii) (without regard to the parenthetical contained in
such clause (ii)) above. The amount of such Net Cash Proceeds not so
used as set forth above in this paragraph (b) shall constitute "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10 million,
the Company shall, within 30 Business Days, make an offer to purchase
(an "Excess Proceeds Offer") from all holders of Notes, on a pro RATA
basis, the aggregate principal amount of Notes as can be purchased with
the Note Portion of Excess Proceeds (defined below) at a price in cash
equal to 100% of the aggregate principal amount of the Notes plus
accrued and unpaid interest, if any (the "Offered Price"), to the date
such Excess Proceeds Offer is consummated (the "Offer Date"). To the
extent that the aggregate principal amount of Notes validly tendered
and not withdrawn pursuant to an
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Excess Proceeds Offer is less than the Note Portion of Excess Proceeds,
the Company may use such surplus for general corporate purposes. If the
aggregate principal amount of Notes validly tendered and not withdrawn
by holders thereof exceeds the amount of Notes that can be purchased
with the Note Portion of Excess Proceeds, Notes to be purchased will be
selected PRO RATA based on the aggregate principal amount of Notes
tendered by each holder. Upon completion of an Excess Proceeds Offer,
the amount of Excess Proceeds shall be reset to zero.
In the event that any other Indebtedness of the Company that ranks PARI
PASSU with the Notes (the "Other Debt") requires an offer to purchase to be made
to repurchase such Other Debt upon the consummation of an Asset Sale, the
Company may apply the Excess Proceeds otherwise required to be applied to an
Excess Proceeds Offer to offer to purchase such Other Debt and to an Excess
Proceeds Offer so long as the amount of such Excess Proceeds applied to purchase
the Notes is not less than the Note Portion of Excess Proceeds. With respect to
any Excess Proceeds, the Company shall make the Excess Proceeds Offer in respect
thereof at the same time as the analogous offer to purchase is made pursuant to
any Other Debt and the purchase date in respect thereof shall be the same as the
purchase date in respect of any Other Debt.
For purpose of this Section 1014, "Note Portion of Excess Proceeds"
means (1) if no Other Debt is being offered to be purchased, the amount of the
Excess Proceeds and (2) if Other Debt is being offered to be purchased, the
amount of the Excess Proceeds equal to the product of (z) the Excess Proceeds
and (y) a fraction the numerator of which is the aggregate principal amount of
the outstanding Notes (the "Note Amount") and the denominator of which is the
sum of the Note Amount and the aggregate principal amount (or accreted value in
the case of original issue discount Other Debt) as of the relevant purchase date
of all outstanding Other Debt for which an offer to purchase is being made in
compliance with this Section 1014.
(d) Whenever the Excess Proceeds received by the Company exceed
$10,000,000, such Excess Proceeds shall be set aside by the Company in
a separate account pending (i) deposit with the Trustee or a Paying
Agent of the amount required to purchase the Notes tendered in an
Excess Proceeds Offer, (ii) delivery by the Company of the Offered
Price to the holders of the Notes tendered in an Excess Proceeds Offer
and (iii) application, as set forth above, of Excess Proceeds for any
lawful purposes. Such Excess Proceeds may be invested in Cash
Equivalents, PROVIDED that the maturity date of any investment shall
not be later than the Offer Date. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Notes shall be purchased by the
Company, at the option of the Holders thereof, in whole or in part in
integral multiples of $1,000, on a date that is not earlier than 30
days and not later than 60 days from the date the notice is given to
holders, or such later date as may be necessary for the Company to
comply with the requirements under the Exchange Act, subject to
proration in the event the amount of Excess Proceeds is less than the
aggregate Offered Price of all Notes tendered.
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(f) Within 15 days after the obligation of the Company to make an
Excess Proceeds Offer arises, the Company shall notify the Trustee
thereof and give written notice of such Excess Proceeds Offer to each
Holder of Notes by first-class mail, postage prepaid, at the address of
such Holder appearing in the Note Register, stating, (i) the Offered
Price and the Offer Date, which shall be a Business Day no earlier than
30 days nor later than 60 days from the date such notice is mailed, or
such later date as is necessary to comply with requirements under the
Exchange Act or any applicable securities laws or regulations; (ii)
that any Note not tendered will continue to accrue interest; (iii)
that, unless the Company defaults in the payment of the Offered Price,
any Notes accepted for payment pursuant to the Excess Proceeds Offer
shall cease to accrue interest after the date of purchase; (iv) that
Holders electing to have any Notes purchased pursuant to an Excess
Proceeds Offer shall be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day
preceding the Offer Date; (v) that Holders shall be entitled to
withdraw their election if the Paying Agent receives, not later than
the close of business on the second Business Day preceding the Offer
Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing its election
to have such Notes purchased; (vi) that Holders whose Notes are being
purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof; (vii) the instructions that the Holders of
Notes must follow in order to tender their Notes; and (viii) the
circumstances and relevant facts regarding such Excess Proceeds Offer.
(g) The Company shall comply with any applicable securities laws,
including Section 14(e) of, and Rule 14e-1 under, the Exchange Act, and
any other applicable Federal or state securities laws and regulations
and any applicable requirements of any securities exchange on which the
Notes are listed.
SECTION 1015. LIMITATIONS ON GUARANTEES OF INDEBTEDNESS BY RESTRICTED
SUBSIDIARIES.
(a) The Company will not permit any Restricted Subsidiary that is not a
Guarantor, directly or indirectly, to guarantee, assume or in any other
manner become liable with respect to any Indebtedness of the Company or
any other Restricted Subsidiary unless (i) (A) such Restricted
Subsidiary simultaneously executes and delivers a supplemental
indenture, in form satisfactory to the Trustee, providing for a
guarantee on the same terms as the guarantee of such Indebtedness of
the obligations under the Notes and this Indenture by such Restricted
Subsidiary, which Note Guarantee will be subordinated to the Guarantor
Senior Indebtedness to the same extent that the Notes are subordinated
to Senior Indebtedness, and delivers to such Trustee on Opinion of
Counsel reasonably satisfactory to such Trustee to the effect that such
supplemental indenture has been duly executed and delivered by such
Restricted Subsidiary and is in compliance with the terms of this
Indenture and (B) with respect to any guarantee of Subordinated
Indebtedness, any such guarantee shall be subordinated to such
Restricted Subsidiary's
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Note Guarantee at least to the same extent as such Subordinated
Indebtedness is subordinated to the Notes and (ii) such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take
the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other
Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Note Guarantee.
(b) Notwithstanding the foregoing, any guarantee of the Notes created
pursuant to the provisions described in the foregoing paragraph (a)
will provide by its terms that it will be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer to any Person not an Affiliate of the Company of all of the
Company's Capital Stock in, or all or substantially all the assets of,
the applicable Subsidiary Guarantor (which sale, exchange or transfer
is otherwise in compliance with this Indenture) or (ii) the release by
the holders of the Indebtedness of the Company described in the
preceding paragraph of their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations
under such Indebtedness), at a time when (A) no other Indebtedness of
the Company has been guaranteed by such Restricted Subsidiary or (B)
the holders of all such other Indebtedness which is guaranteed by such
Restricted Subsidiary also release their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
SECTION 1016. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distributions on or in respect of its Capital Stock to the
Company or any other Restricted Subsidiary, (b) pay any Indebtedness owed to the
Company or any other Restricted Subsidiary, (c) make loans or advances to the
Company or any other Restricted Subsidiary, (d) transfer any of its properties
or assets to the Company or any other Restricted Subsidiary (other than
customary restrictions on transfers of property subject to a Lien permitted
under this Indenture that would not materially adversely affect the Company's
ability to satisfy its obligations under the Notes and this Indenture) or (e)
guarantee any Indebtedness of the Company or any other Restricted Subsidiary,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) customary provisions restricting subletting or assignment
of any lease or assignment of any other contract to which the Company or any
Restricted Subsidiary is a party or to which any of their respective properties
or assets are subject, (iii) any agreement or other instrument of a Person
acquired by the Company or any Restricted Subsidiary in existence at the time of
such acquisition (but not created in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person, so
acquired, (iv) encumbrances and restrictions in effect on the Issuance Date
pursuant to the Senior Credit Facility and its related documentation, (v) any
encumbrance or restriction contained in contracts for sales of assets permitted
by Section
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1014 with respect to the assets to be sold pursuant to such contracts and (vi)
any encumbrance or restriction existing under any agreement that extends,
renews, refinances or replaces the agreements containing the encumbrances or
restrictions in the foregoing clauses (iii) and (iv); PROVIDED that the terms
and conditions of any such encumbrances or restrictions are not materially less
favorable to the Holders than those under or pursuant to the agreement so
extended, renewed, refinanced or replaced.
SECTION 1017. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into any Sale and Leaseback Transaction with
respect to any property or assets (whether now owned or hereafter acquired),
unless (i) the sale or transfer of such property or assets to be leased is
treated as an Asset Sale and the Company complies with Section 1014 and (ii) the
Company or such Restricted Subsidiary would be permitted to incur Indebtedness
under Section 1008 in the amount of the Capitalized Lease Obligations incurred
in respect of such Sale and Leaseback Transaction.
SECTION 1018. LIMITATION ON OTHER SENIOR SUBORDINATED INDEBTEDNESS.
Neither the Company nor any Restricted Subsidiary shall incur, create,
assume, guarantee or in any other manner become directly or indirectly liable
with respect to or responsible for, or permit to remain outstanding, any
Indebtedness, other than the Notes, that is subordinate or junior in right of
payment to any Senior Indebtedness unless such Indebtedness is also PARI PASSU
with, or subordinate in right of payment to, the Notes pursuant to subordination
provisions substantially similar to those contained in this Indenture.
SECTION 1019. LIMITATION ON UNRESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any Subsidiary
(other than a Subsidiary Guarantor) to be an "Unrestricted Subsidiary"
(a "Designation") only if:
(i) no Default shall have occurred and be continuing at the
time of or after giving effect to such designation;
(ii) the Company would be permitted to make an Investment
(other than a Permitted Investment) at the time of Designation
(assuming the effectiveness of such designation) pursuant to the first
paragraph of Section 1009 in an amount (the "Designation Amount") equal
to the greater of (1) the net book value on such date of the Company's
interest in such Subsidiary calculated in accordance with GAAP or (2)
the Fair Market Value on such date of the Company's interest in such
Subsidiary as determined in good faith by the Company's Board of
Directors;
(iii) the Company would be permitted under this Indenture to
incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 1008 at the time of such designation
(assuming the effectiveness of such designation); and
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(iv) such Unrestricted Subsidiary does not own any Capital
Stock in any Restricted Subsidiary of the Company which is not
simultaneously being designated an Unrestricted Subsidiary.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
1009 for all purposes of this Indenture in an amount equal to the greater of (1)
the net book value of the Company's interest in such Subsidiary calculated in
accordance with GAAP or (2) the Fair Market Value of the Company's interest in
such Subsidiary as determined in good faith by the Board of Directors of the
Company.
Neither the Company nor any Restricted Subsidiary shall at any time (x)
provide a guarantee of, or similar credit support to, any Indebtedness of any
Unrestricted Subsidiary (including of any undertaking, agreement or instrument
evidencing such Indebtedness); PROVIDED that the Company may pledge Capital
Stock of any Unrestricted Subsidiary on a nonrecourse basis such that the
pledgee has no claim whatsoever against the Company other than to obtain such
pledged property, (y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness that provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon (or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary (including any corresponding right to
take enforcement action against such Unrestricted Subsidiary).
(b) The Board of Directors of the Company may designate any
Unrestricted Subsidiary as a Restricted Subsidiary if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such designation;
and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such designation would, if
incurred at such time, have been permitted to be incurred for all
purposes under this Indenture.
Any such designation as an Unrestricted Subsidiary or Restricted
Subsidiary by the Board of Directors of the Company shall be evidenced to the
Trustee by filing a board resolution with the Trustee giving effect to such
designation.
SECTION 1020. REPORTS.
The Company shall file on a timely basis with the Commission, to the
extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act. The
Company shall also (a) file with the Trustee, and provide to each
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Holder of Notes at their respective addresses set forth in the Note Register,
without cost to such Holder, copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, supply at the Company's cost copies of
such reports and documents to any prospective Holder of Notes promptly upon
written request. If any Subsidiary Guarantor's financial statements would be
required to be included in the financial statements filed or delivered pursuant
to this Indenture if the Company were subject to Section 13 or 15(d) of the
Exchange Act, the Company shall include such Subsidiary Guarantor's financial
statements in any filing or delivery pursuant to this Indenture. Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
SECTION 1021. WAIVER OF CERTAIN COVENANTS.
The Company and the Restricted Subsidiaries may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1007 to 1012, inclusive, and Sections 1015 to 1019, inclusive, if before or
after the time for such compliance the Holders of at least a majority in
aggregate principal amount of all Outstanding Notes affected by such term,
provision or covenant, by Act of such Holders, waive such compliance in such
instance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company, the Restricted Subsidiaries and the duties of the Trustee, as
applicable, in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. REDEMPTION.
The Notes may or shall be, as the case may be, redeemed, as a whole or
from time to time in part, subject to the conditions and the Redemption Prices
specified in the form of Note, together with accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on
relevant record dates to receive interest due on an Interest Payment Date), on
the Redemption Date.
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SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with the terms of such Notes and in accordance with this Article
Eleven.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1104.
SECTION 1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the particular Notes to
be redeemed shall be selected by the Trustee, from the Outstanding Notes not
previously called for redemption, in compliance with the requirements of the
principal national securities exchange, if any, on which such Notes are listed,
or, if such Notes are not so listed, by such other method as the Trustee shall
deem fair and appropriate (and in such manner as complies with applicable legal
requirements) and which may provide for the selection for redemption of portions
of the principal of Notes; PROVIDED, HOWEVER, that no such partial redemption
shall reduce the portion of the principal amount of a Note not redeemed to less
than $1,000; PROVIDED FURTHER that any such redemption pursuant to the
provisions relating to a Public Equity Offering shall be made on a PRO RATA
basis or on as nearly a PRO RATA basis as practicable (subject to the procedures
of DTC or any other depositary). Notice of redemption shall be sent by
first-class mail at least 30 but not more than 60 days before the Redemption
Date to each Holder of Notes to be redeemed at its registered address. On and
after the Redemption Date, interest shall cease to accrue on Notes or portions
thereof called for redemption, unless the Company defaults in the payment of the
Redemption Price.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
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SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Notes to be redeemed. The Trustee shall give notice of
redemption in the Company's name and at the Company's expense; PROVIDED,
HOWEVER, that the Company shall deliver to the Trustee, at least 45 days prior
to the Redemption Date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest, if any, to
the Redemption Date payable as provided in Section 1107,
(3) if less than all Outstanding Notes are to be redeemed, the
identification of the particular Notes to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial
redemption,
(4) in case any Note is to be redeemed in part only, the notice which
relates to such Note shall state that on and after the Redemption Date,
upon surrender of such Note, the holder will receive, without charge, a
new Note or Notes of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Note, or the portion
thereof, to be redeemed, and, unless the Company defaults in making the
redemption payment, that interest on Notes called for redemption (or
the portion thereof) will cease to accrue on and after said date,
(6) the place or places where such Notes are to be surrendered for
payment of the Redemption Price and accrued interest, if any,
(7) the name and address of the Paying Agent,
(8) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price,
(9) the CUSIP number, and that no representation is made as to the
accuracy or correctness of the CUSIP number, if any, listed in such
notice or printed on the Notes, and
(10) the paragraph of the Notes pursuant to which the Notes are to be
redeemed.
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SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 A.M. on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and accrued interest on, all
the Notes which are to be redeemed on that date.
SECTION 1107. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Notes shall
cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Regular Record Date or Special Record Date, as the case
may be, according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in the
Note.
SECTION 1108. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part (pursuant to the
provisions of this Article) shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder,
in an aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Note so surrendered, PROVIDED that each such new
Note will be in a principal amount of $1,000 or integral multiple thereof.
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ARTICLE TWELVE
SUBORDINATION OF NOTES
SECTION 1201. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Notes and the payment of the principal of (and premium, if any) and
interest on each and all of the Notes are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full in cash or cash equivalents or in any other form acceptable to each holder
of Senior Indebtedness, of all Senior Indebtedness; PROVIDED, HOWEVER, that the
Notes, the Indebtedness represented thereby and the payment of the principal of
(and premium, if any) and interest on the Notes in all respects shall rank
equally with, or prior to, all existing and future senior subordinated
indebtedness (including, without limitation, Indebtedness) of the Company that
is subordinated to Senior Indebtedness.
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its assets, 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 assignment for the benefit of creditors or other marshalling of
assets or liabilities of the Company (except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety upon the terms and conditions described under
Article Eight), then and in any event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or cash equivalents or in any other form
acceptable to each holder of Senior Indebtedness, or provision shall be
made for such payment in full, before the Holders will be entitled to
receive any payment or distribution of any kind or character (other
than any payment or distribution in the form of equity securities or
subordinated securities of the Company or any successor obligor that,
in the case of any such subordinated securities, are subordinated in
right of payment to all Senior Indebtedness that may at the time be
outstanding to at least the same extent as the Notes are so
subordinated as provided in this Indenture (such equity securities or
subordinated securities hereinafter being "Permitted Junior
Securities") and any payment made pursuant to Article Fourteen from
monies or U.S. Government Obligations previously deposited with the
Trustee) on account of principal of (or premium, if any) or interest on
the Notes or on account of the purchase or redemption or other
acquisition of Notes; and
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(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than a
payment or distribution in the form of Permitted Junior Securities and
any payment made pursuant to Article Fourteen from monies or U.S.
Government Obligations previously deposited with the Trustee), by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Indenture shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness to the
extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
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
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged 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 Article Eight.
SECTION 1203. SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR INDEBTEDNESS
IN DEFAULT.
(a) Unless Section 1202 shall be applicable, upon the occurrence of a
Payment Default, no payment or distribution of any assets of the
Company of any kind or character, whether in cash, property or
securities (other than Permitted Junior Securities and payments made
pursuant to Article Fourteen from monies or U.S. Government Obligations
previously deposited with the Trustee), shall be made by or on behalf
of the Company on account of principal of (or premium, if any) or
interest on the Notes or on account of the purchase or redemption or
other acquisition of Notes unless and until such Payment Default shall
have been cured or waived in writing from the Agent Bank or any other
representative of a holder of Designated Senior Indebtedness or shall
have ceased to exist or such Designated Senior Indebtedness shall have
been discharged or paid in full, after which the Company shall resume
making any and all required payments in respect of the Notes, including
any missed payments.
(b) Unless Section 1202 shall be applicable, upon (1) the occurrence of
a Non-Payment Default and (2) receipt by the Trustee of written notice
thereof from the Agent Bank or any other representative of a holder of
Designated Senior Indebtedness, then no payment or distribution of any
assets of the Company of any kind or character, whether in cash,
property or securities (other than Permitted Junior Securities and
payments made pursuant to Article Fourteen from monies or U.S.
Government Obligations
101
previously deposited with the Trustee), shall be made by or on behalf
of the Company on account of any principal of (or premium, if any) or
interest on the Notes or on account of the purchase, redemption or
other acquisition of Notes for a period ("Payment Blockage Period")
commencing on the date of receipt by the Trustee of written notice from
the Agent Bank or such other representative and ending on the earliest
of (i) 179 days thereafter (PROVIDED that any Designated Senior
Indebtedness as to which notice was given shall not theretofore have
been accelerated, in which case the provisions of paragraph (a) shall
apply), (ii) the date on which such Non-Payment Default is cured,
waived or ceases to exist or such Designated Senior Indebtedness is
discharged or paid in full in cash or cash equivalents or (iii) the
date on which such Payment Blockage Period shall have been terminated
by written notice to the Trustee or the Company from the Agent Bank or
such other representative initiating such Payment Blockage Period,
after which the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments. In any
event, not more than one Payment Blockage Period may be commenced
during any period of 360 consecutive days and there must be a period of
at least 181 consecutive days in each period of 360 consecutive days
when no Payment Blockage Period is in effect. No event of default that
existed or was continuing on the date of the commencement of any
Payment Blockage Period will be, or can be, made the basis for the
commencement of a subsequent Payment Blockage Period, unless such
default has been cured or waived for a period of not less than 90
consecutive days subsequent to the commencement of such initial Payment
Blockage Period. In no event will a Payment Blockage Period extend
beyond 179 days.
In the event that, notwithstanding the foregoing and the provisions of
Section 1202, any payments or distribution shall be made to the Trustee (and not
paid over to the Holders of the Notes) which is prohibited by the foregoing
provisions of this Section and the provisions of Section 1202, then and in such
event such payment shall be paid over and delivered forthwith by the Trustee to
the Agent Bank and any other representative of holders of Designated Senior
Indebtedness, as their interests may appear, to the extent necessary to pay in
full all Designated Senior Indebtedness.
SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Notes shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203, from making payments at any time of principal of, and
premium, if any, or interest on the Notes.
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SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Notes shall be subrogated (equally and ratably with the holders of all
Pari Passu Indebtedness of the Company) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to Senior Indebtedness. For purposes of such subrogation,
no payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Notes or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Notes or on their behalf or by the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Notes, be deemed to be a payment or distribution by the Company
to or on account of the Senior Indebtedness; it being understood that the
provisions of this Article are intended solely for the purpose of determining
the relative rights of the Holders of Notes, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Notes is intended to or shall
(a) impair, as between the Company and the Holders, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders the
principal of, and premium, if any, and interest on the Notes 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 and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness.
SECTION 1207. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note by its acceptance thereof authorizes and directs
the Trustee on its 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. If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 504 hereof at least 30 days before the
expiration of the time to file such claim, the Agent Bank (if the Senior Credit
Facility is still outstanding) is hereby authorized to file an appropriate claim
for and on behalf of the Holders of the Notes.
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SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as 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.
SECTION 1209. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article Twelve, the Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other acts pertinent thereto or to this Article
Twelve.
SECTION 1210. 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 in respect of the Notes. Notwithstanding
the provisions of this Article 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 Notes, unless and until the
Trustee shall have received written notice thereof from the Company,
the Agent Bank or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to TIA Sections 315(a) through
315(d), 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 provided for in this Section not later than 9:00 a.m. New
York time on the day which is at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for
any purpose (including, without limitation, the payment of the
principal of, and premium, if any, or interest on any Note), then,
anything herein contained to the contrary notwithstanding, 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
after 9:00 a.m. New York time on the day which is two Business Days
prior to such date.
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(b) Subject to TIA Sections 315(a) through 315(d), the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing itself to be a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee, fiduciary
or agent therefor). 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 Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction
of the Trustee as to the amount of Senior Indebtedness 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 and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 1211. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Notes shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding 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,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article;
PROVIDED that such court, trustee, receiver, custodian, assignee, agent or other
Person has been apprised of, or the order, decree or certificate makes reference
to, the provisions of this Article.
SECTION 1212. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1213. 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 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 in addition to or in place of the Trustee; PROVIDED,
HOWEVER,
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that Section 1212 shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.
SECTION 1214. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law, except as provided in Article Five.
SECTION 1215. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under
Article Fourteen hereof by the Trustee (or other qualifying trustee) and which
were deposited in accordance with the terms of Article Fourteen hereof and not
in violation of Section 1203 hereof for the payment of principal of (and
premium, if any) and interest on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Twelve, and none of the Holders shall be obligated to pay
over any such amount to the Company or any holder of Senior Indebtedness or any
other creditor of the Company.
SECTION 1216. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall mistakenly, in the absence of gross negligence or willful
misconduct, pay over or distribute to Holders of Notes or to the Company or to
any other person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. NOTE GUARANTEES.
Each Subsidiary Guarantor hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by acceleration
or otherwise (including, without limitation, the amount that would become due
but for the
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operation of the automatic stay under Section 362(a) of the Bankruptcy Law),
together with interest on the overdue principal, if any, and interest on any
overdue interest, to the extent lawful, and all other obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise, subject, however, in the case of clauses (a) and (b)
above, to the limitations set forth in Section 1305 hereof.
Each Subsidiary Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Subsidiary
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
Each Subsidiary Guarantor hereby waives (to the extent permitted by
law) the benefits of diligence, presentment, demand for payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company or any other Person,
protest, notice and all demands whatsoever and covenants that the Note Guarantee
of such Subsidiary Guarantor shall not be discharged as to any Note except by
complete performance of the obligations contained in such Note, this Indenture
and such Note Guarantee. Each Subsidiary Guarantor acknowledges that the Note
Guarantee is a guarantee of payment and not of collection. Each of the
Subsidiary Guarantors hereby agrees that, in the event of a default in payment
of principal (or premium, if any) or interest on such Note, whether at its
Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may
be instituted by the Trustee on behalf of, or by, the Holder of such Note,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Subsidiary Guarantors to enforce such Subsidiary Guarantor's
Note Guarantee without first proceeding against the Company or any other
Subsidiary Guarantor. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Notes, to collect interest on the
Notes, or to enforce or exercise any other right or remedy with respect to the
Notes, such Subsidiary Guarantor will pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Subsidiary Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
any Subsidiary Guarantor, any amount paid by any of them to the Trustee or such
Holder, the Note Guarantee of each of the Subsidiary Guarantors, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the
107
one hand, and the Holders and the Trustee, on the other hand, (x) subject to
this Article Thirteen, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of the Note
Guarantee of such Subsidiary Guarantor, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Subsidiary Guarantor for
the purpose of the Note Guarantee of such Subsidiary Guarantor.
Each Note Guarantee shall remain in full force and effect and continue
to be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference", "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
SECTION 1302. SEVERABILITY.
In case any provision of any Note Guarantee shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1303. RESTRICTED SUBSIDIARIES.
If the Company or any of its Restricted Subsidiaries acquires or forms
a Restricted Subsidiary, the Company may cause any such Restricted Subsidiary
(and any other Restricted Subsidiary as required pursuant to Section 1015 or any
other provision of this Indenture) to (i) execute and deliver to the Trustee a
supplemental indenture in accordance with the provisions of Article Nine of this
Indenture pursuant to which such Restricted Subsidiary shall guarantee all of
the obligations on the Notes, whether for principal, premium, if any, interest
(including interest accruing after the filing of, or which would have accrued
but for the filing of, a petition by or against the Company under Bankruptcy
Law, whether or not such interest is allowed as a claim after such filing in any
proceeding under such law) and other amounts due in connection therewith
(including any fees, expenses and indemnities), on a senior unsecured
subordinated basis, and (ii) deliver to such Trustee an Opinion of Counsel
reasonably satisfactory to such Trustee to the effect that such supplemental
indenture has been duly executed and delivered by such Restricted Subsidiary and
is in compliance with the terms of this Indenture. Upon the execution of any
such supplemental indenture, the obligations of the Subsidiary Guarantors and
any such Restricted Subsidiary under their respective Note Guarantees shall
become joint and several and each reference to the "Subsidiary Guarantor" in
108
this Indenture shall, subject to Section 1308, be deemed to refer to all
Subsidiary Guarantors, including such Restricted Subsidiary.
SECTION 1304. SUBORDINATION OF NOTE GUARANTEES.
The Note Guarantee issued by any Subsidiary Guarantor will be unsecured
senior subordinated obligations of such Subsidiary Guarantor, ranking PARI PASSU
with all other existing and future senior subordinated indebtedness of such
Subsidiary Guarantor, if any. The Indebtedness evidenced by such Note Guarantee
will be subordinated on the same basis to Guarantor Senior Indebtedness of such
Subsidiary Guarantor as the Notes are subordinated to Senior Indebtedness under
Article Twelve.
SECTION 1305. LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
confirms that it is the intention of all such parties that the guarantee by each
such Subsidiary Guarantor pursuant to its Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law or the provisions of its local law relating to
fraudulent transfer or conveyance. To effectuate the foregoing intention, the
Holders and each such Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under its Note Guarantee shall be
limited to the maximum amount that will not, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Note Guarantee or pursuant to Section 1305 hereof, result in
the obligations of such Subsidiary Guarantor under its Note Guarantee
constituting such fraudulent transfer or conveyance.
SECTION 1306. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, INTER SE, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under a Note Guarantee, such Funding Guarantor shall be
entitled to a contribution from all other Subsidiary Guarantors in a PRO RATA
amount based on the Adjusted Net Assets (as defined below) of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Subsidiary Guarantor's
obligations with respect to the Note Guarantee of such Subsidiary Guarantor.
"Adjusted Net Assets" of such Subsidiary Guarantor at any date shall mean the
lesser of (x) the amount by which the fair value of the property of such
Subsidiary Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Note Guarantee of such Subsidiary Guarantor at such date
and (y) the amount by which the present fair salable value of the assets of such
Subsidiary Guarantor at such date exceeds the amount that will be required to
pay the probable liability of such Subsidiary Guarantor on its debts (after
giving effect to all other
109
fixed and contingent liabilities incurred or assumed on such date), excluding
debt in respect of the Note Guarantee of such Subsidiary Guarantor, as they
become absolute and matured.
SECTION 1307. SUBROGATION.
Each Subsidiary Guarantor shall be subrogated to all rights of Holders
against the Company in respect of any amounts paid by any Subsidiary Guarantor
pursuant to the provisions of Section 1301; PROVIDED, HOWEVER, that, if an Event
of Default has occurred and is continuing, no Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such
right of subrogation until all amounts then due and payable by the Company under
this Indenture or the Notes shall have been paid in full.
SECTION 1308. REINSTATEMENT.
Each Subsidiary Guarantor hereby agrees (and each Person who becomes a
Subsidiary Guarantor shall agree) that the Note Guarantee provided for in
Section 1301 shall continue to be effective or be reinstated, as the case may
be, if at any time, payment, or any part thereof, of any obligations or interest
thereon is rescinded or must otherwise be restored by a Holder to the Company
upon the bankruptcy or insolvency of the Company or any Subsidiary Guarantor.
SECTION 1309. RELEASE OF A SUBSIDIARY GUARANTOR.
(a) If no Default exists or would exist under this Indenture, the Note
Guarantee issued by any Subsidiary Guarantor under this Indenture shall
be automatically and unconditionally released and discharged (i) upon
any sale, exchange or transfer to any Person not an Affiliate of the
Company or a Restricted Subsidiary of all of the Company's Capital
Stock in, or all or substantially all the assets of, such Subsidiary
Guarantor (which sale, exchange or transfer is not prohibited by this
Indenture) and (ii) so long as such Subsidiary Guarantor is not
otherwise required to provide a Note Guarantee pursuant to Section 1015
or any other provision of this Indenture.
(b) Concurrently with the discharge of the Notes under Section 401, the
defeasance of the Notes under Section 1402 hereof, or the covenant
defeasance of the Notes under Section 1403 hereof, the Subsidiary
Guarantors shall be released from all their obligations under their
Note Guarantees under this Article Thirteen.
SECTION 1310. BENEFITS ACKNOWLEDGED.
Each Subsidiary Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that its guarantee and waivers pursuant to its Note Guarantee are knowingly
made in contemplation of such benefits.
110
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option and at any time, effect defeasance of
the Notes under Section 1402, or covenant defeasance of the Notes under Section
1403, in accordance with the terms of the Notes and in accordance with this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1401 of the option applicable
to this Section 1402, the Company and the Subsidiary Guarantors shall be deemed
to have been discharged from their obligations with respect to the Outstanding
Notes and the Note Guarantees, respectively, on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company and the Subsidiary Guarantors
shall be deemed to have paid and discharged the entire Indebtedness represented
by the Outstanding Notes, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under the Notes and this Indenture insofar as the Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Notes to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such Notes
when such payments are due, (B) the Company's obligations with respect to such
Notes under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, and the Company's
obligations in connection therewith and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section 1402 notwithstanding the prior exercise of its option under Section
1403 with respect to such Notes.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1401 of the option applicable
to this Section 1403, the Company and the Subsidiary Guarantors shall be
released from their obligations under Section 801, 802 and Sections 1008 through
1019 with respect to the Outstanding Notes on and after the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"),
and such Notes shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Notes, the Company and any Subsidiary Guarantor, as applicable, may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or
111
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 501(3) or 501(4) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust 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 such Notes, (A) an amount in cash, 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 one day before the due date of any payment of
principal (including any premium) and interest, if any, on such Notes,
money in an amount, or (C) a combination thereof, in each case in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and
premium, if any, on) and interest on such Outstanding Notes on the
Stated Maturity of such principal (and premium, if any) or installment
of interest; PROVIDED that the Trustee (or such qualifying trustee)
shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to said payments with
respect to such Notes.
(2) No Default or Event of Default with respect to such Notes shall
have occurred and be continuing on the date of such deposit or, insofar
as paragraphs (8) and (9) of Section 501 are concerned, at any time
during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any
material agreement to which the Company or any Subsidiary Guarantor is
a party or by which it is bound.
(4) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since March 31, 1999, there
has been a change in the applicable federal income tax law or
interpretation of such federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Outstanding
112
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such 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 defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(6) In the case of defeasance under Section 1402 or covenant defeasance
under Section 1403, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the trust funds will not be
subject to any rights of holders of Senior Indebtedness under Article
Twelve hereof, and (B) after the 91st day following the deposit or
after the date such opinion is delivered, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of the Notes or any Note Guarantee
over the other creditors of either the Company or any Subsidiary
Guarantor with the intent of hindering, delaying or defrauding
creditors of either the Company or any Subsidiary Guarantor.
(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 defeasance under Section
1402 or the covenant defeasance under Section 1403, as the case may be,
have been complied with.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Sections 1404 and 1406 in respect of
such Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law. Money and U.S. Government Obligations so held in
trust are not subject to Article Twelve.
113
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 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Notes.
Anything in this Article Fourteen 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 (or other property and any
proceeds therefrom) held by it as provided in Section 1404 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 defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1405; provided, HOWEVER, that if the Company makes any payment of principal of
(or premium, if any) or interest on any such Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
SUPREME INTERNATIONAL CORPORATION
By /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President of Finance
SUPREME MUNSINGWEAR CANADA, INC.
By /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
114
SUPREME INTERNATIONAL (DELAWARE), INC.
By /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
SUPREME INTERNATIONAL (N.Y.), INC.
By /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
SUPREME ACQUISITION CORPORATION
By /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
SUPREME INTERNATIONAL CORPORATION DE MEXICO, S.A. DE C.V.
By /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: President
STATE STREET BANK AND TRUST COMPANY, as Trustee
By /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
115
EXHIBIT A
[FACE OF NOTE]
SUPREME INTERNATIONAL CORPORATION
12 1/4% [Series B]1 Senior Subordinated Note due 2006
No. CUSIP No. __________
$ __________
SUPREME INTERNATIONAL CORPORATION, a Florida corporation (the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, promises to pay to ___________, or
its registered assigns, the principal sum of
____________________________________ Dollars ($___________), on [______], 2006.
[Interest Rate: 12 1/4% per annum.](1)
Interest Payment Dates: April 1 and October 1 of each year
commencing October 1, 1999.
Regular Record Dates: March 15 and September 15 of each
year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: SUPREME INTERNATIONAL CORPORATION
By____________________________________________
Name:_________________________________________
Title:________________________________________
--------------------------
(1) Include only for Exchange Notes.
116
(Form of Trustee's Certificate of Authentication)
This is one of the 12 1/4% [Series B]2 Senior Subordinated Notes due
2006 referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
Dated: __________ By:___________________________________
Authorized Signatory
--------------------------
(1) Include only for Exchange Notes.
117
[REVERSE SIDE OF NOTE]
SUPREME INTERNATIONAL CORPORATION
12 1/4% [Series B](1) Senior Subordinated Note due 2006
1. PRINCIPAL AND INTEREST; SUBORDINATION.
The Company will pay the principal of this Note on April 1, 2006.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 12 1/4%
per annum [(subject to adjustment as provided below)](2) [except that interest
accrued on this Note pursuant to the fourth paragraph of this Section 1 for
periods prior to the applicable Exchange Offer or Shelf Registration Date (as
such terms are defined in the Registration Rights Agreement referred to below)
will accrue at the rate or rates borne by the Notes from time to time during
such periods].(1)
Interest will be payable semi-annually (to the Holders of record of the
Notes (or any Predecessor Notes)) at the close of business on the March 15 or
September 15 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing October 1, 1999.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated April 6, 1999, among the Company, the
Subsidiary Guarantors and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that either (a) the Exchange
Offer Registration Statement (as such term is defined in the Registration Rights
Agreement) is not filed with the Securities and Exchange Commission on or prior
to the 65th calendar day following the date of original issue of the Notes, (b)
the Exchange Offer Registration Statement (as such term is defined in the
Registration Rights Agreement) has not been declared effective on or prior to
the 135th calendar day following the date of original issue of the Notes or (c)
the Exchange Offer is not consummated or a Shelf Registration Statement (as such
terms are defined in the Registration Rights Agreement) is not declared
effective on or prior to the 160th calendar day following the date of original
issue of the Notes, the interest rate borne by this Note shall be increased by
one-quarter of one percent per annum following such 65-day period in the case of
(a) above, following such 135-day period in the case of (b) above or following
such 160-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; PROVIDED that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 65-day period
described in clause (a)
--------------------------
(1) Include only for Exchange Note.
(2) Include only for Initial Note.
118
above, (y) the effectiveness of the Exchange Offer Registration Statement after
the 135-day period described in clause (b) above or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 160-day period described in clause (c) above, the
interest rate borne by this Note from the date of such filing, effectiveness or
consummation, as the case may be, will be reduced to the interest rate set forth
above; PROVIDED, HOWEVER, that, if after any such reduction in interest rate, a
different event specified in clause (a), (b) or (c) above occurs, the interest
rate may again be increased pursuant to the foregoing provisions.](1)
Interest on this Note will accrue from the most recent date to which
interest has been paid [on this Note or the Note surrendered in exchange
herefor](2) or, if no interest has been paid, from April 6, 1999; PROVIDED that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee its attorney-in-fact for such purpose.
2. METHOD OF PAYMENT.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each April 1 and October 1 to the Persons who
are Holders (as reflected in the Note Register at the close of business on the
March 15 and September 15 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; PROVIDED that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after April 1, 2006.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable
--------------------------
(1) Include only for Initial Note.
(2) Include only for Exchange Note.
119
in such money. The Company may pay interest on the Notes either (a) by mailing a
check for such interest to a Holder's registered address (as reflected in the
Note Register) or (b) by wire transfer to an account located in the United
States maintained by the payee. If a payment date is a date other than a
Business Day at a Place of Payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will act as Paying Agent and Note Registrar. The
Company may change any Paying Agent or Note Registrar upon written notice
thereto. The Company, any Subsidiary or any Affiliate of any of them may act as
Paying Agent, Note Registrar or co-registrar.
4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture dated as of April 6,
1999 (the "Indenture"), among the Company, the Subsidiary Guarantors and State
Street Bank And Trust Company, as trustee (the "Trustee"). Capitalized terms
herein are used as defined in the Indenture unless otherwise indicated. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Notes are subject to
all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the terms of this Note
and the terms of the Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior subordinated obligations of the Company.
The Indenture limits the aggregate principal amount of the Notes to
$125,000,000.
5. REDEMPTION.
OPTIONAL REDEMPTION. The Notes may be redeemed at the option of the
Company, in whole or in part, at any time and from time to time on or after
April 1, 2003, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning April 1
of each of the years set forth below:
Redemption
Year Price
----------------------------- --------------------
2003 106.125%
2004 103.063%
2005 and thereafter 100.000%
120
In addition to the optional redemption of the Notes in accordance with
the provisions of the preceding paragraph, at any time prior to April 1, 2002,
the Company may redeem up to 35% of the aggregate principal amount of the Notes
(including the principal amount of any Additional Notes), within 60 days of one
or more Public Equity Offerings with the net proceeds of such offerings, at
112.25% of the principal amount thereof, together with accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of holders of
record on relevant Regular Record Dates to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date); PROVIDED, HOWEVER,
that at least 65% of the aggregate principal amount of the Notes originally
issued (including the principal amount of any Additional Notes) remains
outstanding thereafter.
If less than all the Notes are to be redeemed pursuant to the preceding
two paragraphs, the Trustee shall select the Notes or portions thereof to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes being redeemed are listed, or if
the Notes are not so listed, by such other method the Trustee shall deem fair
and appropriate; PROVIDED that no such partial redemption shall reduce the
portion of the principal amount of a Note not redeemed to less than $1,000;
provided further that any such redemption pursuant to the provisions relating to
a Public Equity Offering shall be made on a pro rata basis or on as nearly a pro
rata basis as practicable (subject to the procedures of DTC or any other
depositary).
Notice of a redemption will be mailed, first-class postage prepaid, at
least 30 days but not more than 60 days before the Redemption Date to each
Holder to be redeemed at such Holder's last address as it appears in the Note
Register. Notes in original denominations larger than $1,000 may be redeemed in
part in integral multiples of $1,000. On and after the Redemption Date, interest
ceases to accrue on Notes or portions of Notes called for redemption, unless the
Company defaults in the payment of the Redemption Price.
6. REPURCHASE UPON A CHANGE IN CONTROL AND ASSET SALES.
Upon the occurrence of (a) a Change in Control, the Holders of the
Notes will have the right to require that the Company purchase such Holder's
outstanding Notes, in whole or in part, at a purchase price of 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of purchase and (b) Asset Sales, the Company may be obligated to make offers to
purchase Notes with a portion of the Net Cash Proceeds of such Asset Sales at a
redemption price of 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Note Registrar need not register
121
the transfer or exchange of any Notes selected for redemption (except the
unredeemed portion of any Note being redeemed in part).
8. PERSONS DEEMED OWNERS.
A Holder may be treated as the owner of a Note for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal (premium, if any) or interest
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 the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes (a)
to redemption or maturity, the Company will be discharged from the Indenture and
the Notes, except in certain circumstances for certain sections thereof, and (b)
to the Stated Maturity, the Company will be discharged from certain covenants
set forth in the Indenture.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency and make any change that does not
adversely affect the rights of any Holder.
12. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi)
purchase of Notes upon a Change in Control; (vii) disposition of proceeds of
Asset Sales; (viii) guarantees of Indebtedness by Restricted Subsidiaries; (ix)
dividend and other payment restrictions affecting Restricted Subsidiaries; (x)
merger and certain transfers of assets; and (xi) limitation on Unrestricted
Subsidiaries. Within 120 days after the end of each fiscal year and within 45
days after each fiscal quarter, the Company must report to the Trustee on
compliance with such limitations.
122
13. SUCCESSOR PERSONS.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. REMEDIES FOR EVENTS OF DEFAULT.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. NOTE GUARANTEES.
The Company's obligations under the Notes are fully, irrevocably and
unconditionally guaranteed on a senior unsecured basis, to the extent set forth
in the Indenture, by each of the Subsidiary Guarantors.
16. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. AUTHENTICATION.
This Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to Supreme International
Corporation, 0000 XX 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer.
123
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
INSERT TAXPAYER IDENTIFICATION NO.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
[______], 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
CHECK ONE
(a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
OR
(b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
124
If none of the foregoing boxes is checked, the Trustee or other Note Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 311 and 312 of the Indenture shall
have been satisfied.
Date:
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, 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 the undersigned 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 the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an executive
officer
125
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1013 or Section 1014 of the Indenture, check the Box: ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1013 or Section 1014 of the Indenture, state the amount (in
original principal amount) below:
$______________________.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
126
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of April 6, 1999 among SUPREME INTERNATIONAL CORPORATION, a
corporation duly organized and existing under the laws of the State of Florida
(herein called the "Company"), SUPREME MUNSINGWEAR CANADA, INC., a corporation
organized under the laws of Canada, SUPREME INTERNATIONAL (DELAWARE), INC., a
Delaware corporation, SUPREME INTERNATIONAL (N.Y.), INC., a New York
corporation, SUPREME ACQUISITION CORPORATION, a Florida corporation, and SUPREME
INTERNATIONAL CORPORATION DE MEXICO, S.A. DE C.V., a corporation organized under
the laws of Mexico (collectively, the "Subsidiary Guarantors"), XXXXX XXXXX
INTERNATIONAL, INC., a New York corporation (XXxxxx Xxxxx International), and
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee
(herein called the "Trustee").
R E C I T A L S
WHEREAS, pursuant to Section 1303 of the Indenture dated April
6, 1999 among the Company, the Subsidiary Guarantors and the Trustee (the
AIndenture@), the Company has undertaken to cause any Restricted Subsidiary (as
defined in the Indenture) which the Company acquires to execute a supplemental
indenture pursuant to which such Restricted Subsidiary guarantees all of the
obligations on the Notes issued pursuant to the Indenture;
WHEREAS, the Company has on this date acquired all of the
capital stock of Xxxxx Xxxxx International;
WHEREAS, Xxxxx Xxxxx International by this Supplemental
Indenture, pursuant to and as contemplated by Section 1303 and Article Nine of
the Indenture, desires to expressly, irrevocably and unconditionally assume the
covenants, agreements, obligations and undertakings of a Subsidiary Guarantor
under the Indenture as set forth therein; and
WHEREAS, all conditions and requirements necessary to make
this Supplemental Indenture a valid and binding instrument in accordance with
its terms upon Xxxxx Xxxxx International, and upon each of the Company and the
Subsidiary Guarantors, have been performed and fulfilled by the applicable
parties hereto and the execution and delivery thereof have been in all respects
duly authorized by the applicable parties hereto.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, each party agrees, for the benefit of the others and for the equal
and ratable benefit of the holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. For all purposes of this
Supplemental Indenture, except as otherwise herein expressly provided or unless
the context otherwise requires: (i) the terms and expressions used herein shall
have the same meanings as corresponding terms and expressions used in the
Indenture; and (ii) the words "herein," "hereof" and "hereby" and other words of
similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
ARTICLE TWO
ASSUMPTION OF OBLIGATIONS AND AGREEMENT TO GUARANTEE
SECTION 2.01. ASSUMPTION OF OBLIGATIONS OF SUBSIDIARY
GUARANTOR. Xxxxx Xxxxx International hereby expressly, irrevocably and
unconditionally assumes each and every covenant, agreement, obligation and
undertaking of a Subsidiary Guarantor in the Indenture as if Xxxxx Xxxxx had
been named a Subsidiary Guarantor in the Indenture.
SECTION 2.02. ACCEPTANCE OF THE COMPANY AND THE INITIAL
GUARANTORS. Each of the Company and the Initial Guarantors hereby expressly
accepts the addition of Xxxxx Xxxxx International as a Subsidiary Guarantor and
further agrees to be bound by all of the provisions of this Supplemental
Indenture.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution and delivery of this Supplemental Indenture by the Company, the
Subsidiary Guarantors, Xxxxx Xxxxx International and the Trustee, the Indenture
shall be supplemented in accordance herewith, and this Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder of a Note
heretofore or hereafter authenticated and delivered under the Indenture shall be
bound thereby.
SECTION 3.02. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as expressly amended and supplemented hereby, the Indenture is in all
respects ratified and confirmed and all terms, conditions and provisions of the
Indenture shall remain in full force and effect.
SECTION 3.03. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED
TOGETHER. This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act that is required under such Act to be part
of and govern any provision of this Supplemental Indenture, the provision of
such Act shall control. If any provision of this Supplemental Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the provision of such Act shall be deemed to apply to the Indenture as
so modified or to be excluded by this Supplemental Indenture, as the case may
be.
SECTION 3.05. SEPARABILITY CLAUSE. In case any provision in
this Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 3.06. EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 3.07. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing
in this Supplemental Indenture, the Indenture or the Notes express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
SECTION 3.08. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Supplemental Indenture by Xxxxx Xxxxx International shall
bind its successors and assigns, whether so expressed or not.
SECTION 3.09. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
In entering into this Supplemental Indenture, the Trustee shall be entitled to
the benefit of every provision of the Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee, whether or
not elsewhere herein so provided. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company, the Subsidiary Guarantors
and Xxxxx Xxxxx International.
SECTION 3.10. GOVERNING LAW. This Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York.
This Supplemental Indenture may be executed in counterparts,
each of which, when so executed, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
XXXXX XXXXX INTERNATIONAL INC.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: General Counsel
SUPREME INTERNATIONAL CORPORATION
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: General Counsel
SUPREME MUNSINGWEAR CANADA, INC.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
SUPREME INTERNATIONAL (DELAWARE), INC.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
SUPREME INTERNATIONAL (N.Y.), INC.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
SUPREME ACQUISITION CORPORATION
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
SUPREME INTERNATIONAL
CORPORATION DE MEXICO, S.A.
DE C.V.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
