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EXHIBIT 4.4
EXECUTION COPY
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INDENTURE
Dated as of June 24, 1998
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$100,000,000
11% Senior Subordinated Notes due 2008
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TROPICAL SPORTSWEAR INT'L CORPORATION,
Issuer,
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE I HERETO,
Subsidiary Guarantors,
and
SUNTRUST BANK, ATLANTA,
Trustee
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TROPICAL SPORTSWEAR INT'L CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF JUNE 24, 1998
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss. 310(a)(1) .................................. 607
(a)(2) .................................. 607
(b) .................................. 608
ss. 312(c) .................................. 701
ss. 314(a) .................................. 703
(a)(4) .................................. 1008(a)
(c)(1) .................................. 102
(c)(2) .................................. 102
(e) .................................. 102
ss. 315(b) .................................. 601
ss. 316(a)(last
sentence) .................................. 101 ("Outstanding")
(a)(1)(A) .................................. 502, 512
(a)(1)(B) .................................. 513
(b) .................................. 508
(c) .................................. 105(d)
ss. 317(a)(1) .................................. 503
(a)(2) .................................. 504
(b) .................................. 1003
ss. 318(a) .................................. 111
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TABLE OF CONTENTS
PAGE
PARTIES............................................................................... 1
RECITALS OF THE COMPANY............................................................... 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..............................................................1
SECTION 102. Compliance Certificates and Opinions....................................17
SECTION 103. Form of Documents Delivered to Trustee..................................18
SECTION 104. Acts of Holders.........................................................18
SECTION 105. Notices, etc., to Trustee, Company or Subsidiary Guarantors.............19
SECTION 106. Notice to Holders; Waiver...............................................20
SECTION 107. Conflict of any Provision of Indenture with Trust Indenture Act.........20
SECTION 108. Effect of Headings and Table of Contents................................20
SECTION 109. Successors and Assigns..................................................21
SECTION 110. Separability Clause.....................................................21
SECTION 111. Benefits of Indenture...................................................21
SECTION 112. Governing Law...........................................................21
SECTION 113. Legal Holidays..........................................................21
SECTION 114. No Recourse Against Others..............................................21
SECTION 115. Counterparts............................................................21
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.........................................................22
SECTION 202. Restrictive Legends.....................................................23
ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms.........................................................24
SECTION 302. Denominations...........................................................25
SECTION 303. Execution, Authentication, Delivery and Dating..........................25
SECTION 304. Temporary Securities....................................................26
SECTION 305. Registration, Registration of Transfer and Exchange.....................26
SECTION 306. Book-Entry Provisions for Restricted Global Security....................27
SECTION 307. Special Transfer Provisions.............................................28
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities........................30
SECTION 309. Payment of Interest; Interest Rights Preserved..........................31
SECTION 310. Persons Deemed Owners...................................................32
SECTION 311. Cancellation............................................................32
--------------------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
(i)
4
SECTION 312. Issuance of Additional Securities.......................................33
SECTION 313. CUSIP and CINS Numbers..................................................33
SECTION 314. Computation of Interest.................................................33
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.................................33
SECTION 402. Application of Trust Money..............................................34
ARTICLE V
REMEDIES
SECTION 501. Events of Default.......................................................34
SECTION 502. Acceleration of Maturity; Rescission and Annulment......................35
SECTION 503. Collection of Debt and Suits for Enforcement by Trustee.................36
SECTION 504. Trustee May File Proofs of Claim........................................37
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.............37
SECTION 506. Application of Money Collected..........................................38
SECTION 507. Limitation on Suits.....................................................38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.......................................38
SECTION 509. Restoration of Rights and Remedies......................................39
SECTION 510. Rights and Remedies Cumulative..........................................39
SECTION 511. Delay or Omission Not Waiver............................................39
SECTION 512. Control by Holders......................................................39
SECTION 513. Waiver of Past Defaults.................................................39
SECTION 514. Waiver of Stay or Extension Laws........................................40
SECTION 515. Undertaking for Costs...................................................40
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults......................................................40
SECTION 602. Certain Rights of Trustee...............................................40
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities..........42
SECTION 604. May Hold Securities.....................................................42
SECTION 605. Money Held in Trust.....................................................42
SECTION 606. Compensation and Reimbursement..........................................42
SECTION 607. Corporate Trustee Required; Eligibility.................................43
SECTION 608. Resignation and Removal; Appointment of Successor.......................43
SECTION 609. Acceptance of Appointment by Successor..................................44
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.............45
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders............................45
SECTION 702. Reports by Trustee......................................................45
(ii)
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms....................45
SECTION 802. Successor Substituted...................................................46
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO INDENTURE AND SECURITIES GUARANTEES
SECTION 901. Without Consent of Holders..............................................47
SECTION 902. With Consent of Holders.................................................48
SECTION 903. Execution of Supplemental Indentures....................................48
SECTION 904. Effect of Supplemental Indentures.......................................49
SECTION 905. Conformity with Trust Indenture Act.....................................49
SECTION 906. Reference in Securities to Supplemental Indentures......................49
SECTION 907. Notice of Supplemental Indentures.......................................49
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest....................49
SECTION 1002. Maintenance of Office or Agency........................................49
SECTION 1003. Money for Security Payments to Be Held in Trust........................50
SECTION 1004. Corporate Existence....................................................51
SECTION 1005. Payment of Taxes and Other Claims......................................51
SECTION 1006. Maintenance of Properties..............................................51
SECTION 1007. Insurance..............................................................51
SECTION 1008. Statement by Officers As to Default....................................52
SECTION 1009. Provision of Reports and Financial Statements..........................52
SECTION 1010. Limitation on Incurrence of Debt and Issuance of Disqualified Stock....52
SECTION 1011. Limitation on Restricted Payments......................................53
SECTION 1012. Purchase of Securities upon a Change of Control........................55
SECTION 1013. Limitation on Certain Asset Sales......................................56
SECTION 1014. Limitation on Transactions with Affiliates.............................57
SECTION 1015. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries....................................58
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries...............................................59
SECTION 1017. Limitation on Liens....................................................59
SECTION 1018. Unrestricted Subsidiaries..............................................59
SECTION 1019. Limitation on Layering Debt............................................60
SECTION 1020. Limitation on Guarantees of Debt by Restricted Subsidiaries............60
SECTION 1021. Limitation on Conduct of Business......................................60
SECTION 1022. Waiver of Certain Covenants............................................60
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption....................................................60
SECTION 1102. Applicability of Article...............................................61
SECTION 1103. Election to Redeem; Notice to Trustee..................................61
SECTION 1104. Selection by Trustee of Securities to Be Redeemed......................61
(iii)
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SECTION 1105. Notice of Redemption...................................................61
SECTION 1106. Deposit of Redemption Price............................................62
SECTION 1107. Securities Payable on Redemption Date..................................62
SECTION 1108. Securities Redeemed in Part............................................62
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant Defeasance.............63
SECTION 1202. Defeasance and Discharge...............................................63
SECTION 1203. Covenant Defeasance....................................................63
SECTION 1204. Conditions to Defeasance or Covenant Defeasance........................64
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions...................65
SECTION 1206. Reinstatement..........................................................65
ARTICLE XIII
SECURITIES GUARANTEES
SECTION 1301. Subsidiary Guarantees..................................................66
SECTION 1302. Guaranty Absolute......................................................66
SECTION 1303. Waivers................................................................68
SECTION 1304. Subrogation............................................................68
SECTION 1305. No Waiver; Remedies....................................................68
SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent Obligation.......69
SECTION 1307. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms..........69
SECTION 1308. Additional Guarantors..................................................69
SECTION 1309. Releases...............................................................70
SECTION 1310. Benefits Acknowledged..................................................70
SECTION 1311. Severability...........................................................70
ARTICLE XIV
SUBORDINATION OF SECURITIES AND SECURITIES GUARANTEES
SECTION 1401. Securities and Subsidiary Guarantees Subordinate to Senior Debt........71
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc.........................71
SECTION 1403. No Payment When Certain Senior Debt in Default.........................72
SECTION 1404. Payment Permitted If No Default........................................73
SECTION 1405. Subrogation to Rights of Holders of Senior Debt........................73
SECTION 1406. Provisions Solely to Define Relative Rights............................74
SECTION 1407. Trustee to Effectuate Subordination....................................74
SECTION 1408. No Waiver of Subordination Provisions..................................74
SECTION 1409. Notice to Trustee......................................................75
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidation Agent.........75
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Debt.......................75
SECTION 1412. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights...........................76
SECTION 1413. Applicability to Paying Agents.........................................76
SECTION 1414. Defeasance of this Article XIV.........................................76
SECTION 1415. Subordination Provisions Controlling...................................76
(iv)
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EXHIBITS
Exhibit A - Form of Security
Exhibit B - Form of Certificate for Exchange or Registration of Transfer
from Restricted Global Security to Regulation S Global
Security
Exhibit C - Form of Certificate for Exchange or Registration of Transfer
from Regulation S Global Security to Restricted Global
Security
Exhibit D - Form of Certificate for Transfer of U.S. Physical Securities
to Regulation S Global Security or Restricted Global Security
Exhibit E - Form of Certificate for Transfer or Exchange after Two Years
(v)
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* Include only for Exchange Securities.
* Include only for Initial Securities.
** Include only for Exchange Securities.
* Include only for Initial Securities.
** Include for Restricted Global Security only.
*** Include for Physical Securities only.
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INDENTURE, dated as of June 24, 1998 between Tropical Sportswear Int'l
Corporation, a corporation duly organized and existing under the laws of the
State of Florida (herein called the "Company"), each of the Company's
subsidiaries listed on Schedule I hereto (collectively, the "Subsidiary
Guarantors") and SunTrust Bank, Atlanta, a bank and trust company duly organized
and existing, and authorized to accept and execute trusts of the character
herein set forth, under the laws of the State of Georgia, as trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of 11% Senior
Subordinated Notes due 2008 (herein called the "Initial Securities"), and 11%
Senior Subordinated Notes due 2008 (the "Exchange Securities" and, together with
the Initial Securities, the "Securities") to be issued in exchange for the
Initial Securities 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 of the Subsidiary Guarantors has duly authorized its guarantee of
the Securities, and to provide therefor each of them has duly authorized the
execution and delivery of this Indenture.
Upon the issuance of the Exchange Securities, if any, or the
effectiveness of the Exchange Registration Statement (as defined herein) or,
under certain circumstances, the effectiveness of the Shelf Registration
Statement (as defined herein), this Indenture will be subject to the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
The Company has also duly authorized the creation of up to $40,000,000
aggregate principal amount of additional Securities to be issued from time to
time having identical terms and conditions to the Initial Securities offered
hereby.
All things necessary have been done to make the Securities, when
executed by the Company and authenticated by the Trustee and delivered hereunder
and duly issued by the Company, the valid obligations of the Company and to make
this Indenture a valid agreement of the Company and the Subsidiary Guarantors,
each in accordance with their respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
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:
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(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Generally Accepted
Accounting Principles; and
(d) 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 Debt" means Debt of a Person (a) existing at the time such
Person is merged with or into the Company or becomes a Restricted Subsidiary or
(b) assumed in connection with the acquisition of assets from such Person.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Securities" has the meaning set forth in Section 301.
"Adjusted Net Assets" has the meaning set forth in Section 1301.
"Affected Obligor" has the meaning set forth in Section 1402.
"Affected Obligor Senior Debt" has the meaning set forth in Section
1402.
"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, 10% or more of such specified Person's Capital
Stock or any executive officer or director of any 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 no 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 Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means applicable procedures of the Depositary,
Euroclear System or Cedel Bank S.A., as the case may be.
"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") by
the Company or a Restricted Subsidiary, directly or indirectly, in one
transaction or a series of related transactions, of (a) any Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary), (b) all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries representing a division or
line of business or (c) any other properties or assets of the Company or any
Restricted Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not
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include any transfer of properties or assets (i) that is governed by the
provisions of Article VIII, (ii) between or among the Company and its Restricted
Subsidiaries pursuant to transactions that do not violate any other provision of
the Indenture, (iii) to any Person to the extent it constitutes a Restricted
Payment that is permitted under Section 1011, (iv) consisting of inventory or
wornout, obsolete or permanently retired equipment and facilities, (v)
consisting of Receivables and Related Assets transferred pursuant to a
Receivables Program, (vi) consisting of Receivables and Related Assets
transferred pursuant to a Factoring Agreement provided that such transfer is
non-recourse to the Company or any Restricted Subsidiary with respect to not
less than 99.85% of the face amount of such Receivables and Related Assets,
(vii) the gross proceeds of which do not exceed $1.0 million in connection with
any transfer or $2.0 million in the aggregate for any fiscal year of the Company
or (viii) that constitutes a Permitted Investment.
"Asset Sale Offer" has the meaning set forth in Section 1013.
"Asset Sale Purchase Date" has the meaning set forth in Section 1013.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code, as amended.
"Banks" means the banks and other financial institutions that from time
to time are lenders under the New Credit Facility.
"Blockage Notice" has the meaning set forth in Section 1403.
"Board of Directors" means, as the context requires, either the board
of directors of the Company or a Subsidiary Guarantor, as the case may be, or
any duly authorized committee of that board.
"Board Resolution" means, as the context requires, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
or a Subsidiary Guarantor, as the case may be, to have been duly adopted by the
applicable Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Borrowing Base" means, as of any date, an amount equal to the sum of
(a) 75% of the aggregate book value of the accounts receivable of the Company
and its Restricted Subsidiaries (net of bad debt reserves) and (b) 50% of the
aggregate net book value of the inventory of the Company and its Restricted
Subsidiaries, all calculated on a consolidated basis in accordance with GAAP as
of the last day of the immediately preceding fiscal quarter for which internal
financial statements are available.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York or Atlanta,
Georgia are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" of any Person means any and all shares, partnership
interests, participations, rights in or other equivalents of, or interests in,
the equity of such Person, but excluding any debt securities convertible into
such equity.
"Cash Equivalents" means (a) any evidence of Debt with a maturity of
180 days 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)
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certificates of deposit or acceptances or Eurodollar time deposits with a
maturity of 180 days or less of, and overnight bank deposits and demand accounts
with, 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 180 days 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 at least P-1 by Xxxxx'x; and (d) funds which invest in any
of the foregoing.
"CEDEL" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Change of Control" means the occurrence of any of the following
events:
(a) Any Person or "group" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more 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 will 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 50% of the voting power of all classes of Voting Stock of
the Company;
(b) 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_% 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
(c) The Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution, other than a transaction that complies with
the provisions of Article VIII.
"Change of Control Offer" has the meaning set forth in Section 1012.
"Change of Control Payment Date" has the meaning set forth in Section
1012.
"Closing Date" means the date on which the Initial Securities are
originally issued under this Indenture.
"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, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated EBITDA" means, for any period, the sum of, without
duplication, (a) cash dividends paid on Disqualified Stock by the Company or any
Restricted Subsidiary (to any person other than the Company and its Restricted
Subsidiaries) plus (b) Consolidated Net Income for such period, plus (or, in the
case of clause (iv) below, plus or minus) the following items to the extent
included in computing Consolidated Net Income for such
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period (i) Fixed Charges for such period, plus (ii) the federal, state, local
and foreign income tax expense of the Company and its Restricted Subsidiaries
for such period, plus (iii) the depreciation and amortization expense of the
Company and its Restricted Subsidiaries for such period, plus (iv) any other
non-cash charges for such period and minus non-cash credits for such period,
other than non-cash charges or credits resulting from changes in prepaid assets
or accrued liabilities in the ordinary course of business; provided that income
tax expense, depreciation and amortization expense and non-cash charges and
credits of, and cash dividends paid on Disqualified Stock by, a Restricted
Subsidiary shall be included in Consolidated EBITDA only to the extent (and in
the same proportion) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income for such period.
"Consolidated Net Income" means, for any period, the net income (or net
loss) of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by excluding (a) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (b) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, (c) the net income (but not the
net loss) of any Person (other than the Company or a Restricted Subsidiary), in
which the Company or any Restricted Subsidiary has an equity interest, except
that the aggregate amount of dividends or other distributions actually paid to
the Company or any Restricted Subsidiary in cash during such period will be
included in such Consolidated Net Income, (d) the net income (or loss) of any
Person acquired by the Company or any Restricted Subsidiary in a "pooling of
interests" transaction attributable to any period prior to the date of such
acquisition, and (e) the net income (but not the net loss) of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is at the date of
determination restricted, directly or indirectly, except that the aggregate
amount of such net income that could be paid to the Company or a Restricted
Subsidiary thereof by loans, advances, intercompany transfers, principal
repayments or otherwise will be included in such Consolidated Net Income.
"Consolidated Net Worth" means, at any date of determination, the
stockholders' equity of the Company and its Restricted Subsidiaries as set forth
on the most recently available quarterly or annual consolidated balance sheet of
the Company and its Restricted Subsidiaries, less any amounts attributable to
Disqualified Stock or any equity security convertible into or exchangeable for
Debt, the cost of treasury stock and the principal amount of any promissory
notes receivable from the sale of the Capital Stock of the Company or any of its
Restricted Subsidiaries and less, to the extent included in calculating such
stockholders' equity of the Company and its Restricted Subsidiaries, the
stockholders' equity attributable to Unrestricted Subsidiaries, each item to be
determined in conformity with GAAP (excluding the effects of foreign currency
adjustments under Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 52).
"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 at the date of execution of this Indenture is
located at 0000 Xxxxxxxx Xxxx, Xxxxxxxx 00, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000-0000, except that with respect to presentation of Securities for payment
or for registration of transfer or exchange, such term shall mean the office or
agency of the Trustee at which, at any particular time, its corporate trust and
agency business shall be conducted.
"Currency Agreements" means, with respect to any Person, any spot or
forward foreign exchange agreements and currency swap, currency option or other
similar financial agreements or arrangements entered into by such Person or any
of its Restricted Subsidiaries in the ordinary course of business and designed
to protect against or manage exposure to fluctuations in foreign currency
exchange rates.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (a) every obligation of such Person for money borrowed, (b) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
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instruments, (c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (d) every obligation of such Person issued or assumed as
the deferred purchase price of property or services, (e) every Capital Lease
Obligation of such Person, (f) all Disqualified Stock of such Person valued at
its maximum fixed repurchase price (including, without duplication, accrued and
unpaid dividends), (g) all obligations of such Person under or in respect of
Hedging Obligations to the extent such Hedging Obligations would appear as a
liability on the balance sheet of such Person prepared in accordance with GAAP,
and (h) every obligation of the type referred to in clauses (a) through (g) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed. For purposes of this definition, the
"maximum fixed repurchase price" of any Disqualified Stock that does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were repurchased on any date on
which Debt is required to be determined pursuant to the Indenture, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Disqualified Stock. Notwithstanding the
foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business and any liability for federal, state or local taxes
or other taxes owed by such Person shall not be considered Debt for purposes of
this definition.
"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 309.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Assets" means the properties and assets used in Farah's
European, Far East and South Pacific operations identified in Note 10 to the
Consolidated Financial Statements of Farah for its fiscal year ended November 2,
1997 included in the Offering Memorandum.
"Designated Senior Debt" means (i) all Senior Debt under the New Credit
Facility and (ii) any other issue of Senior Debt or refinancing thereof
permitted by the definition of Senior Debt, having a principal amount of at
least $25,000,000 and which has been designated by the Company as Designated
Senior Debt in the instrument evidencing or governing such Senior Debt.
"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, to make a finding or otherwise
take action under the 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.
"Disqualified Stock" means any class or series of Capital Stock that,
either by its terms, or by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (a) is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to one year after the final Stated Maturity of the Securities, (b) is redeemable
at the option of the holder thereof at any time prior to one year after such
final Stated Maturity or (c) at the option of the holder thereof, is convertible
into or exchangeable for debt securities at any time prior to one year after
such final Stated Maturity; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions therein giving holders thereof
the right to cause the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior to
the Stated Maturity of the Securities will not constitute Disqualified Stock if
the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Sections 1012 and 1013 and such Capital Stock
specifically provides that the issuer will not repurchase or redeem any of such
stock pursuant to such provision prior to the
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Company's repurchase of such of the Securities as are required to be repurchased
pursuant to Sections 1012 and 1013.
"Domestic Restricted Subsidiary" means a Domestic Subsidiary that is a
Restricted Subsidiary.
"Domestic Subsidiary" means any Subsidiary whose jurisdiction of
incorporation, organization or formation is the United States, any state thereof
or the District of Columbia.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System, or any successor securities
clearing agency.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1013.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder.
"Exchange Offer" means the exchange offer that may be effected pursuant
to the Registration Rights Agreement.
"Exchange Registration Statement" means the Exchange Registration
Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of
this Indenture and refers to any Exchange Securities containing terms
substantially identical to the Initial Securities (except that such Exchange
Securities shall not contain terms applicable to the Initial Securities with
respect to the interest rate step-up provisions referred to in the last
paragraph of Section 309 and in Section 1 of the Initial Securities and transfer
restrictions in Section 307 of the Initial Securities) that are issued and
exchanged for the Initial Securities pursuant to the Registration Rights
Agreement and this Indenture.
"Factoring Agreement" means (i) the Factoring Agreement dated October
1, 1995 between the Company and Xxxxxx Financial, Inc. or (ii) any other
factoring agreement between the Company and/or one or more Restricted
Subsidiaries, on the one hand, and a financial institution, on the other hand,
on substantially similar terms to the factoring agreement referred to in the
foregoing clause (i) pursuant to which the Company and/or such Restricted
Subsidiaries factor Receivables and Related Assets.
"Fair market value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between an informed and willing seller and an informed and willing buyer,
neither of which is under pressure or compulsion to complete the transaction.
With respect to subparagraph (b) of the definition of Investment, fair market
value shall be as determined in good faith by the Board of Directors.
"Farah" means Farah Incorporated, a Texas corporation.
"Farah Acquisition" means the Company's acquisition of Farah pursuant
to a tender offer by Foxfire Acquisition Corp., a wholly owned subsidiary of the
Company, for all of the outstanding capital stock of Farah in June 1998 followed
by the Merger.
"Fixed Charges" means, for any period, without duplication, the sum of
(a) the amount that, in conformity with GAAP, would be set forth opposite the
caption "interest expense" (or any like caption) on a
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consolidated statement of operations 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) amortization of debt issuance costs and (v) the interest
component of Capital Lease Obligations, plus (b) cash dividends paid on
Preferred Stock and Disqualified Stock by the Company and any Restricted
Subsidiary (to any Person other than the Company and its Restricted
Subsidiaries) plus (c) all interest on any Debt of any Person guaranteed by the
Company or any of its Restricted Subsidiaries; provided, however, that Fixed
Charges shall not include (i) any gain or loss from extinguishment of debt,
including the write-off of debt issuance costs and (ii) the fixed charges of a
Restricted Subsidiary to the extent (and in the same proportion) that the net
income of such Subsidiary was excluded in calculating Consolidated Net Income
pursuant to clause (e) of the definition thereof for such period.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Fixed Charges for such period.
"Foreign Subsidiary" means any Subsidiary other than a Domestic
Subsidiary.
"Funding Guarantor" has the meaning set forth in Section 1301.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date of determination.
"Global Security" shall have the meaning specified 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 all or any part 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 non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Guarantor Senior Debt" means, as to any Subsidiary Guarantor, the
principal of and premium, if any, and interest on (including interest accruing
after the filing of a petition initiating any proceeding pursuant to any
bankruptcy law, whether or not allowed) and other amounts due on or in
connection with any Debt of such Subsidiary Guarantor (other than the Subsidiary
Guarantee made by such Subsidiary Guarantor or Pari Passu Debt), whether
outstanding on the Closing Date or thereafter incurred, unless, in the case of
any particular Debt, the instrument creating or evidencing the same or pursuant
to which the same is outstanding expressly provides that such Debt will be pari
passu with or subordinate in right of payment to such Subsidiary Guarantor's
Subsidiary Guaranty. Without limiting the generality of the foregoing,
"Guarantor Senior Debt" includes the principal of and premium, if any, and
interest (including interest accruing after the occurrence of an event of
default or after the filing of a petition initiating any proceeding pursuant to
any bankruptcy law, whether or not allowed) on all obligations of every nature
of such Subsidiary Guarantor from time to time owed to the Banks under the New
Credit Facility, provided, however, that any Debt under any refinancing,
refunding or replacement of the New Credit Facility shall not constitute
Guarantor Senior Debt to the extent that the Debt thereunder is by its express
terms subordinate to any other Debt of such Subsidiary Guarantor.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not include (a)
Debt that is represented by Disqualified Stock, (b) any trade payables, (c) Debt
of or amounts owed by such Subsidiary Guarantor for compensation to employees or
for services rendered to such Subsidiary Guarantor, (d) any liability for
foreign, federal, state, local or other taxes owed or owing by such Subsidiary
Guarantor, (e) Debt of such Subsidiary Guarantor to a Subsidiary of the Company
or any other Affiliate of the Company or any of such Affiliate's Subsidiaries,
(f) that portion of any Debt that, at the time of the incurrence, is incurred by
such Subsidiary Guarantor in violation of the Indenture, (g)
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amounts owing under leases (other than Capital Lease Obligations) and (h) Debt
that is without recourse to such Subsidiary Guarantor (regardless of any
election under Section 1111(b) of the Bankruptcy Code).
"Hedging Obligations" means the obligations of any Person under (a)
Interest Rate Agreements and (b) Currency Agreements.
"Holder" means the Person in whose name a Security is, at the time of
determination, registered on the Security Register.
"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.
"Indenture Obligations" means the obligations of the Company and any
other obligor hereunder or under the Securities, including the Subsidiary
Guarantors, to pay principal of and premium, if any, and interest on the
Securities when due and payable at Maturity, and all other amounts due or to
become due under or in connection with this Indenture, the Securities and the
performance of all other obligations to the Trustee (including all amounts due
to the Trustee under Section 606 hereof) and the Holders under this Indenture
and the Securities, according to the terms hereof and thereof.
"Initial Period" has the meaning set forth in Section 1403.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"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) and other related agreements entered into in the ordinary course of
business and designed to protect against or manage exposure to fluctuations in
interest rates.
"Investment" in any Person means (a) any direct or indirect advance,
loan or other extension of credit or capital contribution (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) to, or any purchase, acquisition or
ownership of, Capital Stock, Debt or other securities issued by such Person, the
acquisition (by purchase or otherwise) of all or substantially all of the
business or assets of such Person, or the making of any investment of cash or
other property in such Person, (b) the designation of any Restricted Subsidiary
as an Unrestricted Subsidiary, (c) the transfer of any assets or properties from
the Company or a Restricted Subsidiary to an Unrestricted Subsidiary, other than
the transfer of assets or properties made in the ordinary course of business and
(d) the fair market value of the Capital Stock (or any other Investment), held
by the Company or any of its Restricted Subsidiaries, of (or in) any Person that
has ceased to be a Restricted Subsidiary. Investments exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
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"Merger" means the merger of Foxfire Acquisition Corp. with and into
Farah in connection with the Farah Acquisition.
"Merger Agreement" means the agreement and plan of merger dated May 1,
1998 between the Company, Farah and Foxfire Acquisition Corp.
"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, but only as and when received, in the form of,
or stock or other assets when disposed of for, 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 (a) brokerage commissions and
other fees and expenses (including fees and expenses of legal counsel,
accountants and investment banks) related to such Asset Sale, (b) provisions for
all taxes payable or required to be accrued in accordance with GAAP as a result
of such Asset Sale, (c) payments made to retire Debt where payment of such Debt
is secured by a Lien on the assets that are the subject of such Asset Sale, (d)
amounts required to be paid to any Person (other than the Company or any
Restricted Subsidiary) owning a beneficial interest in the assets that are
subject to the Asset Sale and (e) 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 seller after such Asset Sale, including pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"New Credit Facility" means the credit agreement dated as of June 10,
1998 among the Company, the Banks and Fleet Capital Corporation, as agent, as
such agreement may be amended, renewed, extended, substituted, replaced,
restated, refinanced, restructured, supplemented or otherwise modified from time
to time (including, without limitation, any successive amendments, renewals,
extensions, substitutions, replacements, restatements, refinancings,
restructuring, supplements or other modifications of the foregoing); provided
that with respect to any agreement providing for the refinancing, substitution
or replacement of Debt under the New Credit Facility (including any such
agreement which increases the principal amount thereof), such agreement shall be
the New Credit Facility for the purposes of this definition only if a notice to
that effect is delivered by the Company to the Trustee and there shall be at any
time only one credit agreement that is the New Credit Facility under this
Indenture.
"New Credit Facility Agent" means Fleet Capital Corporation as agent
for the Banks under the New Credit Facility or any successor thereto as "agent"
identified in written notice to the Trustee given by the predecessor agent.
"Non-Subsidiary Guarantors" means Subsidiaries which are not Subsidiary
Guarantors.
"Offering Memorandum" means the final offering memorandum dated June
18, 1998 relating to the offer and sale of the Initial Securities by the
Company.
"Officers' Certificate" means a certificate signed by the Chairman, the
President 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.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment,
redemption or purchase money in the necessary amount has been
theretofore deposited with the Trustee or any Paying 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 Securities; provided that, if such Securities 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;
(c) Securities, except to the extent provided in Sections 1202
and 1203, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article XII; and
(d) Securities which have been paid pursuant to Section 308 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands the Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities 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 so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Pari Passu Debt" means any Debt of the Company or any Subsidiary
Guarantor, whether outstanding at the date of this Indenture or incurred
thereafter, that ranks pari passu in right of payment with the Securities or any
Subsidiary Guarantee, as the case may be.
"Paying Agent" means SunTrust Bank, Atlanta, and any successor
(including the Company acting as Paying Agent) authorized by the Company to pay
the principal of and premium, if any, or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning set forth in Section 1403.
"Permitted Debt" means:
(i) Debt of the Company or any Restricted Subsidiary
under the New Credit Facility in an aggregate principal amount at any
one time outstanding not to exceed the greater of (x) $110,000,000 or
(y) the amount of the Borrowing Base, less in either case (A) any
amounts applied to the permanent reduction of the New Credit Facility
pursuant to Section 1013 and (B) the amount of Debt of all Receivables
Subsidiaries then outstanding under clause (ix);
(ii) Debt of the Company or any Restricted Subsidiary
outstanding on the Closing Date, other than Debt described under clause
(i) above;
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(iii) Debt owed by the Company to any Wholly Owned
Restricted Subsidiary or owed by any Restricted Subsidiary to the
Company or a Wholly Owned Restricted Subsidiary (provided that such
Debt is held by the Company or such Wholly Owned Restricted
Subsidiary); provided, however, that if the Company is the obligor on
such Debt, such Debt is unsecured and subordinated in all respects to
the Company's obligations under the Securities and provided, further,
however, that if any such Wholly Owned Restricted Subsidiary ceases to
be (for any reason) a Wholly Owned Restricted Subsidiary, then this
clause (iii) shall no longer be applicable to Debt owed by the Company
or any Restricted Subsidiary to such Restricted Subsidiary that was
formerly a Wholly Owned Restricted Subsidiary;
(iv) Debt represented by the Securities (other than any
Additional Securities) and the Subsidiary Guarantees;
(v) Debt of the Company or any Restricted Subsidiary in
respect of Hedging Obligations;
(vi) Capital Lease Obligations of the Company or any
Restricted Subsidiary, provided that the aggregate amount of Debt under
this clause (vi) shall not exceed $5,000,000 at any one time
outstanding;
(vii) Debt of the Company or any Restricted Subsidiary
under purchase money mortgages or secured by purchase money security
interests so long as (x) such Debt is not secured by any property or
assets of the Company or any Restricted Subsidiary other than the
property and assets so acquired and (y) such Debt is created within 90
days of the acquisition of the related property; provided that the
aggregate amount of Debt under this clause (vii) shall not exceed
$5,000,000 at any one time outstanding;
(viii) guarantees by the Company or any Restricted
Subsidiary of Debt that was permitted to be incurred by the provisions
of Section 1010, and, with respect to guarantees by any Restricted
Subsidiary, made in accordance with the provisions of Section 1020;
(ix) Debt incurred by a Receivables Subsidiary, other than
Debt described in clause (iii) above, in an amount not exceeding 95% of
the aggregate unpaid balance of the Receivables and Related Assets of
such Receivables Subsidiary at the time of such incurrence pursuant to
a Receivables Program;
(x) Debt of the Company or any Restricted Subsidiary, not
otherwise permitted by any other clause of this definition, in an
aggregate principal amount not to exceed $12,000,000 at any one time
outstanding;
(xi) Debt of one or more Foreign Subsidiaries under one or
more credit facilities in an aggregate principal amount not to exceed
$7,000,000 at any one time outstanding;
(xii) Debt evidenced by letters of credit securing
obligations entered into in the ordinary course of business in an
aggregate principal amount not to exceed $10,000,000 at any one time
outstanding to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed not later
than the fifth Business Day following receipt of a demand for
reimbursement following payment on such letter of credit; and
(xiii) any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this clause, a "refinancing") of
any outstanding Debt incurred pursuant to clause (ii) and (iv) above,
including any successive refinancings thereof, so long as (A) the
principal amount of such refinancing Debt does not exceed (1) the
principal amount of the Debt being refinanced, plus (2) the amount of
any premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt refinanced or the amount of any
premium reasonably determined by the Company as necessary
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to accomplish such refinancing, plus (3) the amount of the expenses of
the Company reasonably estimated to be incurred in connection with such
refinancing, (B) in the case of any refinancing of Subordinated Debt of
the Company or any Subsidiary Guarantors, such refinancing Debt is
subordinated to the Securities or the Subsidiary Guarantees, as the
case may be, at least to the same extent as the Debt being refinanced
and (C) such refinancing Debt has a Weighted Average Life equal to or
greater than the Weighted Average Life of the Debt being refinanced and
has a final Stated Maturity no earlier than the final Stated Maturity
of the Debt being refinanced.
"Permitted Holders" means each of Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxxx and
their respective Affiliates.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents.
(b) Investments by the Company or any Restricted
Subsidiary in another Person, if as a result of such Investment such
other Person (i) becomes a Restricted Subsidiary or (ii) is merged or
consolidated with or into, or transfers or conveys all or substantially
all of its assets to, the Company or a Restricted Subsidiary.
(c) Investments by the Company or any of the Restricted
Subsidiaries in any one of the other of them.
(d) Investments existing on the Closing Date.
(e) Investments made as a result of the receipt of
non-cash consideration in an Asset Sale permitted under Section 1013.
(f) Investments consisting of loans and advances to
officers and employees of the Company or any Restricted Subsidiaries
for reasonable travel, relocation and business expenses in the ordinary
course of business or other loans or advances to officers or employees
of the Company or a Restricted Subsidiary in an aggregate principal
amount not to exceed $500,000 at any one time outstanding.
(g) Investments the payment for which consists
exclusively of Capital Stock (exclusive of Disqualified Stock) of the
Company.
(h) Investments by the Company or a Restricted Subsidiary
in a Receivables Subsidiary.
(i) Investments in any Person the primary business of
which is related, ancillary or complementary to the business of the
Company and its Restricted Subsidiaries on the date of such Investment
not to exceed $5,000,000 at any one time outstanding.
(j) Other Investments by the Company or a Restricted
Subsidiary that do not exceed $5,000,000 in the aggregate at any one
time outstanding.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 308 in exchange for a mutilated
security or in lieu of a lost,
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destroyed or stolen Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the Closing Date, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning specified in Section 202.
"Proceeding" has the meaning set forth in Section 1402.
"Public Equity Offering" means an offer and sale of common stock (which
is Qualified Stock) of 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).
"Qualified Equity Interest" means any Qualified Stock and all warrants,
options or other rights to acquire Qualified Stock (but excluding any debt
security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital Stock of such
Person, other than Disqualified Stock.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Receivables and Related Assets" means accounts receivable,
instruments, chattel paper, obligations, general intangibles and other similar
assets, including interests in merchandise or goods, the sale or lease of which
give rise to the foregoing, related contractual rights, guarantees, insurance
proceeds, collections, other related assets and proceeds of all of the
foregoing.
"Receivables Program" means, with respect to any Person, any accounts
receivable securitization program pursuant to which such Person, directly or
indirectly, pledges, sells or otherwise transfers or encumbers its accounts
receivable, including to a trust, limited liability company, special purpose
entity or other similar entity.
"Receivables Subsidiary" means a Wholly Owned Restricted Subsidiary of
the Company (i) created for the purpose of financing receivables created in the
ordinary course of business of the Company and its Restricted Subsidiaries and
(ii) the sole assets of which consist of Receivables and Related Assets of the
Company and its Restricted Subsidiaries and related Permitted Investments.
"Redemption Date" means, when used with respect to any Security to be
redeemed, in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registrar" means SunTrust Bank, Atlanta of Georgia and any successor
authorized by the Company to act as registrar of the Securities and transfer
securities as provided herein.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement between the Company and Prudential Securities Incorporated,
dated as of June 18, 1998 relating to the Securities.
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"Registration Statement" means the Exchange Registration Statement or
the Shelf Registration Statement, in each case, as defined in the Registration
Rights Agreement.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date, the June 1 or December 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section
201.
"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Payment" means any of the following:
(a) the declaration or payment of any dividend on, or the
making of any distribution to holders of, any shares of the Capital
Stock of the Company or any Restricted Subsidiary other than (i)
dividends or distributions payable solely in Qualified Equity
Interests, (ii) dividends or distributions by a Restricted Subsidiary
payable to the Company or another Restricted Subsidiary or (iii) pro
rata dividends or distributions on common stock of a Restricted
Subsidiary held by minority stockholders, provided that such dividends
do not in the aggregate exceed the minority stockholders' pro rata
share of such Restricted Subsidiary's net income from the first day of
the Company's fiscal quarter during which the Closing Date occurs;
(b) the purchase, redemption or other acquisition or
retirement for value, directly or indirectly, of any shares of Capital
Stock (or any options, warrants or other rights to acquire shares of
Capital Stock) of (i) the Company or any Unrestricted Subsidiary or
(ii) any Restricted Subsidiary held by any Affiliate of the Company
(other than, in either case, any such Capital Stock owned by the
Company or any of its Restricted Subsidiaries);
(c) the making of any principal payment on, or the
repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to any scheduled principal payment, sinking fund
payment or maturity, of any Subordinated Debt; or
(d) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Period" has the meaning set forth in Section 306.
"Restricted Subsidiary" means any Subsidiary other than an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Securities"
shall include any Exchange Securities to be issued and exchanged for any Initial
Securities in accordance with the Exchange Offer as provided for in the
Registration Rights Agreement and this Indenture. From and after the issuance of
any Additional Securities pursuant to Section 312 (but, not for purposes of
determining whether such issuance is permitted hereunder), "Securities" shall
include such Additional Securities for purposes of this Indenture, and all
Initial Securities, Exchange Securities and Additional Securities shall vote
together as one series of Securities under this Indenture.
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"Securities Act" means the Securities Act of 1933, as amended from time
to time, and the rules and regulations thereunder.
"Securities Payment" has the meaning set forth in Section 1402.
"Security Register" has the meaning set forth in Section 305.
"Senior Debt" means the principal of and premium, if any, and interest
on (including interest accruing after the filing of a petition initiating any
proceeding pursuant to any bankruptcy law, whether or not allowed) and other
amounts due on or in connection with any Debt of the Company (other than the
Securities or Pari Passu Debt), whether outstanding on the Closing Date or
thereafter incurred, unless, in the case of such Debt, the instrument creating
or evidencing the same or pursuant to which the same is outstanding expressly
provides that such Debt will be pari passu with or subordinate in right of
payment to the Securities. Without limiting the generality of the foregoing,
"Senior Debt" includes the principal of and premium, if any, and interest
(including interest accruing after the occurrence of an event of default or
after the filing of a petition initiating any proceeding pursuant to any
bankruptcy law, whether or not allowed) on all obligations of every nature of
the Company from time to time owed to the Banks under the New Credit Facility,
provided, however, that any Debt under any refinancing, refunding or replacement
of the New Credit Facility shall not constitute Senior Debt to the extent that
the Debt thereunder is by its express terms subordinate to any other Debt of the
Company. Notwithstanding the foregoing, "Senior Debt" shall not include (a) Debt
represented by Disqualified Stock, (b) any trade payables, (c) Debt of or
amounts owed by the Company for compensation to employees or for services
rendered to the Company, (d) any liability for foreign, federal, state, local or
other taxes owed or owing by the Company, (e) Debt of the Company to a
Subsidiary of the Company or any other Affiliate of the Company or any of such
Affiliate's Subsidiaries, (f) that portion of any Debt that, at the time of the
incurrence, is incurred by the Company in violation of the Indenture, (g)
amounts owing under leases (other than Capital Lease Obligations) and (h) Debt
that is without recourse to the Company (regardless of any election under
Section 1111(b) of the Bankruptcy Code).
"Senior Nonmonetary Default" has the meaning set forth in Section 1403.
"Senior Payment Default" has the meaning set forth in Section 1403.
"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 would be a "Significant Subsidiary" of the Company within the meaning of
Rule 1-02 under Regulation S-K promulgated by the Commission as such Rule is in
effect on the date of the Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable and, when used with respect to any other Debt, means
the date specified in the instrument governing such Debt as the fixed date on
which the principal of such Debt or any installment of interest thereon is due
and payable, and shall not, in either case, include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Debt" means Debt of the Company or a Subsidiary Guarantor
that is subordinated in right of payment to the Securities or the Subsidiary
Guarantee issued by such Subsidiary Guarantor, as the case may be.
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"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 and/or one or more Subsidiaries of the Company.
"Subsidiary Guarantee" means a guarantee of the Securities by a
Restricted Subsidiary in accordance with the provisions of this Indenture.
"Subsidiary Guarantor" means any Restricted Subsidiary that issues a
Subsidiary Guarantee pursuant to or as required by the provisions of this
Indenture.
"Surviving Entity" has the meaning set forth in Section 801.
"Transactions" shall have the meaning set forth in the Offering
Memorandum.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, 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 such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that is designated
by the Board of Directors as an Unrestricted Subsidiary in accordance with
Section 1018 and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" has the meaning set forth in Section
1204.
"U.S. Physical Securities" has the meaning set forth in Section 201.
"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 has, or might have, voting power by reason of the
happening of any contingency).
"Weighted Average Life" means, as of the date of determination with
respect to any Debt or Disqualified Stock, 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 or
liquidation value payment of such Debt or Disqualified Stock, respectively,
multiplied by (ii) the amount of each such principal or liquidation value
payment by (b) the sum of all such principal or liquidation value payments.
"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 is owned, directly or indirectly,
by the Company.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or such Subsidiary Guarantor, as the case may be, shall
furnish to the Trustee an Officers' Certificate 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 an Opinion of Counsel stating 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
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request as to which the furnishing of 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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant 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 and/or any
Subsidiary Guarantor 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
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 and/or any such Subsidiary Guarantor stating that the information with
respect to such factual matters is in the possession of the Company and/or any
such Subsidiary Guarantors, 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; and, 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 or the
Subsidiary Guarantors. 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
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this Indenture and conclusive in favor of the Trustee, the Company and the
Subsidiary Guarantors, if made in the manner provided in this Section.
(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 that the Trustee in its discretion deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company or any Subsidiary Guarantor shall solicit from
the Holders of Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company or any such Subsidiary Guarantor (as
the case may be), may, at its option, by or pursuant to a 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 or any such Subsidiary Guarantor (as the case may be) 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 Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities 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 Security shall bind every
future Holder of the same Security and the Holder of every Security 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, the
Paying Agent, the Company and/or the Subsidiary Guarantors in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) For all purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
SECTION 105. Notices, etc., to Trustee, Company or Subsidiary
Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) made, given, furnished or
filed in writing or mailed, first-class postage prepaid, to or with the
Trustee at its Corporate Trust Office, 0000 Xxxxxxxx Xxxx, Xxxxxxxx 00,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Department, or sent by facsimile to the Trustee at (000) 000-0000 (with
receipt confirmed by telephone at (000) 000-0000 or at any other
address or facsimile number previously furnished in writing to the
Company, the Holders and any Subsidiary Guarantor); or
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(b) the Company by the Trustee, any Holder or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer, or sent by facsimile to the Company at (000) 000-0000 (with
receipt confirmed by telephone at (000) 000-0000), or at any other
address or facsimile number previously furnished in writing to the
Trustee by the Company; or
(c) any Subsidiary Guarantor by the Company, any other
Subsidiary Guarantor, the Trustee or any Holder shall be sufficient for
any purpose hereunder (unless otherwise herein expressly provided) if
in writing, and mailed, first class postage prepaid, to such Subsidiary
Guarantor addressed to it at c/o Tropical Sportswear Int'l Corporation,
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer, or sent by facsimile to such Subsidiary Guarantor at
(000) 000-0000 (with receipt confirmed by telephone at (000) 000-0000),
or at any other address or facsimile number previously furnished in
writing to the Trustee by such Subsidiary Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders 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 Holder affected by such event, at his address as it
appears in the Security 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. 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.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable 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 a sufficient giving
of such notice for every purpose hereunder.
SECTION 107. Conflict of any Provision of Indenture with Trust
Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
SECTION 108. 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.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Securities Registrar and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York. Upon the issuance of the
Exchange Securities, if any, or the effectiveness of the Exchange Registration
Statement or, under certain circumstances, the effectiveness of the Shelf
Registration Statement, this Indenture shall 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 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change of Control Payment Date or Asset Sale Purchase Date
with respect to any Security or other day on which principal, premium or
interest in respect or the Securities is due, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of principal (or premium, if any) or interest need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity, Change of Control Payment Date or Asset Sale Purchase
Date; provided that no interest shall accrue for the period from and after such
Interest Payment Date or other such day, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Maturity, Change in Control Payment Date or Asset Sale Purchase Date, as the
case may be, to the next succeeding Business Day.
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or of any Subsidiary Guarantor shall not have any liability for any obligations
of the Company or any Subsidiary Guarantor under the Securities, any Subsidiary
Guaranty or this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation.
SECTION 115. Counterparts.
This Indenture may be executed in any number of counterparts and by
telecopier, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be
in substantially the form annexed hereto as Exhibit A, 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 any applicable law or with the rules of the Depositary,
any clearing agency or any securities exchange or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities 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 Securities, as evidenced by their
execution of such Securities.
The terms and provisions contained in the form of the Securities
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company, the Subsidiary
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Initial Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities without
interest coupons substantially in the form set forth in Exhibit A (collectively
the "Restricted Global Security") deposited with, or on behalf of, the
Depositary or with the Trustee, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security 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 Securities offered and sold in reliance on Regulation S shall
be issued initially in the form of one or more permanent global Securities in
fully registered form without interest coupons substantially in the form set
forth in Exhibit A (collectively, the "Regulation S Global Security" and,
together with the Restricted Global Security, the "Global Securities" or each
individually, a "Global Security"). The Regulation S Global Security will be
registered in the name of a nominee of Depositary and deposited with the Trustee
on behalf of the purchasers of the Securities evidenced thereby, for the
accounts of Euroclear and CEDEL and duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Regulation S Global Security may from time to time be increased or
decreased by adjustments made on the records of the Depositary or its nominee,
or of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided. Until and including the 40th day after the date of this
Indenture, beneficial interests in the Regulation S Global Security may be held
only through Euroclear or CEDEL, unless delivery is made through the Restricted
Global Security in accordance with the certification requirements provided in
this Indenture.
If the Depositary is at any time unwilling or unable to continue as a
depositary for the Global Securities, or if, in the case of the Regulation S
Global Security held for an account of Euroclear or CEDEL, Euroclear or CEDEL,
as the case may be, is closed for business for 14 continuous days or announces
an intention to cease or permanently ceases business and no successor therefor
has been designated, the Company will issue certificates for the Securities in
definitive, fully registered, non-global form without interest coupons in
exchange for the
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Regulation S Global Security or Restricted Global Security, as the case may be.
In all cases, certificates for Securities delivered in exchange for any Global
Security or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by the Depositary.
In the case of certificates for Securities in non-global form issued in
exchange for a Global Security, such certificates will bear the first legend
appearing under Section 202 of this Indenture (unless the Company determines
otherwise in accordance with applicable law subject, with respect to such
Securities, to the provisions of such legend). The holder of a Security in
non-global form may transfer such Security, subject to compliance with the
provisions of such legend, by surrendering it at the office or agency maintained
by the Company for such purpose in the Borough of Manhattan, The City of New
York, which initially will be the office of the Trustee.
Initial Securities offered and sold other than as global securities
shall be issued in the form of permanent certificated Securities in registered
form in substantially the form set forth in Exhibit A (the "U.S.
Physical Securities").
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, each certificate representing a
Security shall contain a legend substantially to the following effect (the
"Private Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON
WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) TO AN INSTITUTION THAT IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (4) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES.
Each Global Security, whether or not an Initial Security, 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
THE NAME OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC OR SUCH OTHER ENTITY AS IS REQUESTED (AND ANY
PAYMENT HEREON 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
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OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE 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 THE INDENTURE UNDER WHICH THIS GLOBAL
SECURITY IS ISSUED.
ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms.
The initial aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 307, 308, 906, 1012, 1013 or 1108, pursuant to an Exchange Offer or
pursuant to Section 312. The Company may also issue up to $40,000,000 aggregate
principal amount of Additional Securities having identical terms and conditions
to the Initial Securities, subject to compliance with the covenants contained
herein (the "Additional Securities").
The Initial Securities shall be known and designated as the "11% Senior
Subordinated Notes due 2008" and the Exchange Securities shall be known and
designated as the "11% Exchange Senior Subordinated Notes due 2008." Their
Stated Maturity shall be June 15, 2008, and they shall bear interest at the rate
of 11% per annum from June 24, 1998, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable semiannually
in arrears on June 15 and December 15 in each year, commencing December 15,
1998, until the principal thereof is paid or duly provided for, to the Person in
whose name the Security (or any predecessor Security) is registered at the close
of business on the June 1 or December 1 next preceding such Interest Payment
Date.
The principal of and premium, if any, and interest on the Securities
shall be payable, and the Securities shall be exchangeable and transferable, at
the office or agency of the Company in The City of New York, New York maintained
for such purposes, (which initially shall be the office of the Trustee located
at SunTrust Bank, Atlanta c/o First Chicago Trust Company, Attention: Xxxxx
Xxxxxxxxxx, Corporate Trust, 0xx Xxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
10005), or, at the option of the Company, interest may be paid by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Security Register; provided, however, that all payments with respect to the
Global Securities, as well as U.S. Physical Securities the Holders of which have
given wire transfer instructions to the Trustee (or other Paying Agent) by the
Regular Record Date for such payment, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
Initial Securities that remain outstanding after the consummation of
the Exchange Offer and Exchange Securities issued in connection with the
Exchange Offer will be treated as a single class of securities under this
Indenture.
The Securities shall be redeemable as provided in Article XI.
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The Securities shall not have the benefit of any sinking fund
obligations. The Securities shall be subject to defeasance at the option of the
Company as provided in Article XII. The Securities are guaranteed on an
unsecured, senior subordinated basis by the Subsidiary Guarantors as set forth
in Article XIV of this Indenture.
SECTION 302. Denominations.
The Securities 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 Securities shall be executed on behalf of the Company by its
Chairman, its President, a Vice President or its Treasurer. The signature of any
of these officers on the Securities may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities 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 Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Initial Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Initial Securities directing the Trustee to
authenticate the Securities and certifying that all conditions precedent to the
issuance of Securities contained herein have been fully complied with, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Securities. On Company Order, the Trustee shall authenticate for
original issue Exchange Securities in an aggregate principal amount not to
exceed $100,000,000 plus the aggregate principal amount of any Additional
Securities issued; provided that such Exchange Securities shall be issuable only
upon the valid surrender for cancellation of Securities of a like aggregate
principal amount in accordance with Section 305 hereof, an Exchange Offer
pursuant to the Registration Rights Agreement and a Company Order for the
authentication of such securities certifying that all conditions precedent to
the issuance have been complied with (including the effectiveness of a
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
Securities. Such order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Initial Securities or
Exchange Securities is to be authenticated.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article VIII, 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 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 VIII, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance,
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transfer, lease or other disposition may, from time to time, at the request of
the successor Person, be exchanged for other Securities 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 Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
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 (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Security
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
Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as "Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Subject to the other provisions of this Indenture regarding
restrictions on transfer, upon surrender for registration of transfer of any
Security at the office or agency of the Company designated pursuant to Section
1002, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations of a like aggregate
principal amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange (including an
exchange of Initial Securities for Exchange Securities), the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive; provided that no exchange
of Initial Securities for Exchange Securities shall occur until an Exchange
Registration Statement, Shelf Registration
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Statement or other registration statement with respect to such Exchange Security
shall have been declared effective by the Commission and that the Initial
Securities to be exchanged for the Exchange Securities shall be canceled by the
Trustee as provided in this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1012, 1013 or 1108 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of 15
Business Days before the selection of Securities to be redeemed under Section
1104 and ending at the close of business on the day of such mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Notwithstanding anything to the contrary contained herein, the Trustee
shall have no duty whatsoever to monitor Federal or State securities laws other
than to collect the certificates required herein.
SECTION 306. Book-Entry Provisions for Restricted Global Security.
(a) The Global Security initially shall (i) be registered in the name
of Cede & Co., as nominee of the Depositary, (2) be deposited with, or on behalf
of, the Depositary or with the Trustee, as custodian for such Depositary, and
(iii) bear legends as set forth in Section 202.
The Depositary or its nominee shall be the Holder of the Global
Securities, and owners of beneficial interests in the Securities represented by
the Global Securities shall hold such interests pursuant to the procedures and
practices of the Depositary. Any such owner's beneficial ownership of any such
Securities will be shown only on, and the transfer of such ownership interest
shall be effected only through, records maintained by the Depositary or its
nominee. Investors in the Regulation S Global Security may hold their interests
in Regulation S Global Security through Euroclear or CEDEL, if they are
participants in such systems, or indirectly through organizations which are
participants in such systems. After the expiration of the Restricted Period (but
not earlier), investors in the Regulation S Global Security may also hold such
interests through organizations other than Euroclear or CEDEL that are
participants in the Depositary's system. Euroclear and CEDEL will hold interests
in the Regulation S Global Security on behalf of their participants through
customers' securities accounts in their respective names on the books of their
respective depositaries, which, in turn, will hold such interests in the
Regulation S Global Security in customer's securities accounts in the
depositaries' names on the books of the Depositary. All interests in a Global
Security, including those held through Euroclear or CEDEL, may be subject to the
procedures and requirements of the Depositary. Those interests held through
Euroclear and CEDEL will be subject to the procedures and requirements of such
system. As used herein, the term "Restricted Period" means the period of 40
consecutive days beginning on and including the first day after the later of (i)
the day that Prudential Securities Incorporated advises the Company and the
Trustee of the day on which the Initial Securities
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or Additional Securities, as the case may be, are first offered to persons other
than distributors (as defined in Regulation S) and (ii) the original issue date
of the Initial Securities or Additional Securities, as the case may be.
(b) Transfers of any Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in any
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 307.
Unless (i) the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for a Global Security or ceases to be a
"Clearing Agency" registered under the Exchange Act or announces an intention
permanently to cease business or does in fact do so and a successor Depositary
is not appointed by the Company within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing with respect to a Global Security or
(iii) in the case of a Global Security held for the account of Euroclear or
CEDEL, Euroclear or CEDEL, as the case may be, is closed for business for 14
continuous Business Days or announces an intention to cease or permanently
ceases business and a successor therefor has not been designated, owners of
beneficial interests in a Global Security will not be entitled to have any
portions of such Global Security registered in their names, will not receive or
be entitled to receive physical delivery of Securities in definitive form and
will not be considered the owners or holders of the Global Security.
(c) Securities issued in exchange for a Global Security or any portion
thereof pursuant to the last sentence of subsection (b) of this Section shall be
issued in definitive, fully registered form, without interest coupons, shall
have an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Registrar. With regard
to any Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and make available for delivery the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative
thereof. In the event of the occurrence of any of the events specified in
subsections (b)(i), (ii) or (iii) of this Section 306, the Company will promptly
make available to the Trustee a reasonable supply of certificated Securities in
definitive form.
(d) Except as otherwise set forth in this Indenture or a Global
Security, owners of beneficial interests in the Securities evidenced by a Global
Security will not be entitled to any rights under this Indenture with respect to
such Global Security, and the Depositary or its nominee may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
and Holder of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any such
agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between
the Depositary or its nominee and such owners of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary or its nominee as Holder of any Security.
SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, the following provisions shall
apply:
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(a) Restricted Global Security to Regulation S Global Security. If, at
any time, an owner of a beneficial interest in a Restricted Global Security
deposited with the Depositary (or the Trustee as custodian for the Depositary)
wishes to transfer its interest in such Restricted Global Security to a Person
who is required or permitted to take delivery thereof in the form of an interest
in a Regulation S Global Security, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Regulation S Global Security as provided in this
Section 307(a). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest in
the applicable Restricted Global Security to be exchanged, (2) a written order
given in accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary and the Euroclear or CEDEL
account (if applicable) to be credited with such increase, and (3) a certificate
substantially in the form of Exhibit B hereto given by the owner of such
beneficial interest, the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount of the applicable
Restricted Global Security and to increase or cause to be increased the
aggregate principal amount of the applicable Regulation S Global Security by the
principal amount of the beneficial interest in the Restricted Global Security to
be exchanged, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S Global
Security equal to the reduction in the aggregate principal amount of the
applicable Restricted Global Security, and to debit, or cause to be debited,
from the account of the Person making such exchange or transfer the beneficial
interest in the Restricted Global Security that is being exchanged or
transferred.
(b) Regulation S Global Security to Restricted Global Security. If, at
any time, an owner of a beneficial interest in a Regulation S Global Security
deposited with the Depositary (or with the Trustee as custodian for the
Depositary) wishes to transfer its interest in such Regulation S Global Security
to a Person who is required or permitted to take delivery thereof in the form of
an interest in a Restricted Global Security, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Global Security, as provided in
this Section 307(b). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member, directing the
Trustee, as Registrar, to credit or cause to be credited a beneficial interest
in the Restricted Global Security equal to the beneficial interest in the
Regulation S Global Security to be exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
participant account of the Depositary to be credited with such increase and (3)
if such transfer is requested prior to the expiration of the Restricted Period,
a certificate in the form of Exhibit C attached hereto given by the owner of
such beneficial interest, the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount of
such Regulation S Global Security and to increase or cause to be increased the
aggregate principal amount of the applicable Restricted Global Security by the
principal amount of the beneficial interest in the Regulation S Global Security
to be exchanged, and the Trustee, as Registrar, shall instruct the Depositary,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in
the applicable Restricted Global Security equal to the reduction in the
aggregate principal amount of such Regulation S Global Security and to debit or
cause to be debited from the account of the Person making such transfer the
beneficial interest in the Regulation S Global Security that is being
transferred. After the expiration of the Restricted Period, the certificate
described in clause (3) above shall no longer be required to effect transfers
pursuant to this Section 307(b).
(c) Transfers of U.S. Physical Securities for Restricted Global
Security or Regulation S Global Security. If the holder of a U.S. Physical
Security wishes at any time to transfer such holder's U.S. Physical Security to
a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Regulation S Global Security or the Restricted Global Security,
such transfer may be effected, subject to the Applicable Procedures, only in
accordance with the provisions of this Section 307(c). Upon receipt by the
Trustee of (1) instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to be credited a
beneficial interest in the Regulation S Global Security or Restricted Global
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Security, as the case may be, in a principal amount equal to that of the U.S.
Physical Securities to be so transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
participant account of the Depositary (and the Euroclear or CEDEL account, as
applicable) to be credited with such beneficial interest and (3) a certificate
in substantially the form set forth in Exhibit D, given by the holder of such
U.S. Physical Security, the Trustee, as Security Registrar, shall instruct the
Depositary to increase the principal amount of the Regulation S Global Security
or the Restricted Global Security, as the case may be, by the principal amount
of the U.S. Physical Security to be so transferred, and to cancel or cause to be
canceled such U.S. Physical Security.
(d) Restricted Global Security or U.S. Physical Security to Regulation
S Global Security After Two Years. If the holder of a beneficial interest in a
Restricted Global Security or U.S. Physical Security wishes at any time after
the second anniversary of the date of original issuance of the Securities to (A)
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Security or (B) to
exchange such interest for a beneficial interest in a Regulation S Global
Security, such transfer or exchange may be effected, subject to the Applicable
Procedures, only in accordance with this Section 307(d). Upon receipt by the
Trustee of (1) in the case of a transfer or exchange of an interest in the
Restricted Global Security or a U.S. Physical Security, instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited to a beneficial interest in the
Regulation S Global Security in an amount equal to that the beneficial interest
in the Restricted Global Security to be so transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary (and, if
applicable, the Euroclear or CEDEL account, as the case may be) to be credited
with such beneficial interest and (3) a certificate substantially in the form of
Exhibit E hereto given by the holder of such beneficial interest, the Trustee,
as Registrar, shall (i) in the case of a transfer or exchange of an interest in
the Restricted Global Security, instruct the Depositary to reduce the principal
amount of the Restricted Global Security, and to increase the principal amount
of the Regulation S Global Security, by the principal amount of the beneficial
interest in the Restricted Global Security to be so transferred or exchanged,
and to credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Regulation S Global Security
having a principal amount equal to the amount by which the principal amount of
the Restricted Global Security was reduced upon such transfer or exchange or
(ii) in the case of a transfer or exchange of a U.S. Physical Security, cancel
such U.S. Physical Security and increase the principal amount of the Regulation
S Global Security accordingly.
(e) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain as required by law copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies at
its expense of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or any of its authorized representatives which is
given or made pursuant to this Article III if such order, direction or request
is made or given in accordance with the Applicable Procedures.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the ownership thereof and the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such
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Security has been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver, in exchange
for any such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security 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, without limitation, the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities 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 Securities.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security 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 Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company in The City of New York maintained for such
purposes (which initially shall be the office of the Trustee located at SunTrust
Bank, Atlanta c/o First Chicago Trust Company, Attention: Xxxxx Xxxxxxxxxx,
Corporate Trust, 0xx Xxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10005) pursuant
to Section 1002 or, at the option of the Company, interest may be paid by check
mailed to the address of the Person entitled thereto pursuant to Section 310 as
such address appears in the Security Register; provided that all payments with
respect to Global Securities the Holders of which have given wire transfer
instructions to the Trustee (or other Paying Agent) by the Regular Record Date
shall be required to be made by wire transfer of immediately available funds to
the accounts specified by the holders thereof.
Any interest on any Security 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 Regular Record Date by virtue of having been
such Holder, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Securities (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) 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 Security and the date of the proposed
payment, 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 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
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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 for 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 names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities 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, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
If the Company shall be required to pay any additional interest
pursuant to the terms of the Registration Rights Agreement, it shall deliver an
Officers' Certificate to the Trustee setting forth the new interest rate and the
period for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, each Subsidiary Guarantor, the Trustee and any agent of
the Company, such Subsidiary Guarantor or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and premium, if any, and (subject
to Sections 305 and 309) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
any Subsidiary Guarantors, the Trustee or any agent of the Company, such
Subsidiary Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 311. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, (i) if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it and
(ii) if delivered to the Trustee, be promptly canceled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities 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 Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the Debt represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures or as
directed by a Company Order that canceled Securities be returned to the Company.
The Trustee shall provide the Company a list of all Securities that have been
canceled from time to time as requested by the Company.
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SECTION 312. Issuance of Additional Securities. The Company may,
subject to Article X of this Indenture, issue up to $40,000,000 aggregate
principal amount of Additional Securities. Any Additional Securities will be
part of the same issue as the Securities offered hereby and will vote on all
matters with the Securities offered hereby.
SECTION 313. CUSIP and CINS Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "CINS" numbers in notices of redemption as
a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 314. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of the
Securities, as expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(i) all the Securities theretofore authenticated
and delivered (other than mutilated, destroyed, lost or stolen
Securities that have been replaced or paid as provided in
Section 308 and Securities that have been subject to
defeasance under Article XII) have been delivered to the
Trustee for cancellation; or
(ii) all Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at Stated
Maturity within one year, or
(C) 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, in the case of (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the
Trustee funds in trust for the purpose in an amount sufficient
to pay and discharge the entire Debt on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and premium, if any, on and interest on the
Securities to the date of
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such deposit (in the case of Securities that have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(b) the Company has paid or caused to be paid all sums
payable hereunder by the Company; and
(c) 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 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
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, 1202 and 1203 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities 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.
ARTICLE V
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 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):
(a) default in the payment of any interest on any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days (whether or not prohibited by Article XIV);
(b) default in the payment of the principal of or premium, if
any, on any Security when due (whether or not prohibited by Article
XIV);
(c) failure to perform or comply with the provisions described
in Article VIII or to make or consummate a Change of Control Offer or
an Asset Sale Offer in accordance with the provision of Section 1012
and Section 1013, respectively;
(d) default in the performance, or breach, of any covenant or
agreement of the Company or any Subsidiary Guarantor contained in this
Indenture or any Subsidiary Guarantee (other than as contemplated by
clauses (a), (b) and (c) above) and continuance of such default or
breach for a period of 60 days after written notice has been given (x)
to the Company by the Trustee or (y) to the Company and
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the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities then Outstanding;
(e) the occurrence of an event of default under any mortgage,
bond, indenture, loan agreement or other document evidencing Debt of
the Company or any Significant Subsidiary, which Debt has an aggregate
outstanding principal amount of $5,000,000 or more, and such default
(i) results in the acceleration of such Debt prior to its Stated
Maturity or (ii) constitutes a failure to make any payment with respect
to any such Debt when due and payable after expiration of any
applicable grace period;
(f) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments the uninsured portion
of which exceeds in the aggregate $5,000,000, which judgment or
judgments are not paid, discharged or stayed for a period of 60 days;
(g) any Subsidiary Guarantee ceases to be in full force and
effect or is declared null and void or any Subsidiary Guarantor denies
that it has any further liability under any Subsidiary Guarantee, or
gives notice to such effect (other than by reason of the termination of
this Indenture or the release of any such Subsidiary Guarantee in
accordance with this Indenture), and such condition has continued for a
period of 30 days after written notice of such failure requiring the
Subsidiary Guarantor and the Company to remedy the same has been given
(x) to the Company by the Trustee or (y) to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding;
(h) entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company or any Significant Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustments or composition of or
in respect of the Company or any Significant Subsidiary under the
Bankruptcy Code or any other applicable federal or state law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant Subsidiary or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(i) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or
the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under the Bankruptcy Code or
any other applicable federal or state law, or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or any Significant Subsidiary or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in Section 501(h) or
(i)) occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Securities then Outstanding may, and the
Trustee at the request of such Holders shall, declare the principal of and
premium, if any, and accrued and unpaid interest on, all of the Outstanding
Securities immediately due and payable and, upon any such declaration, all such
amounts will become due and payable immediately. If an Event of Default
specified in Section 501(h) or (i) above occurs and is continuing, then the
principal and premium, if any, and accrued and unpaid interest on all of the
Securities Outstanding will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
Securities. The Company shall deliver to the Trustee,
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within 10 days after the Company becomes aware of the occurrence thereof, notice
of any default or acceleration referred to the Section 501(e).
At any time after a declaration of acceleration, but before a judgment
or decree for payment of the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind such
declaration and its consequences if
(i) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay,
(A) all overdue interest on all Securities,
(B) all unpaid principal of and premium, if any,
on any Outstanding Securities that has become due otherwise
than by such declaration of acceleration and interest thereon
at the rate borne by the Securities,
(C) to the extent that payment of such interest
is lawful, interest on overdue interest and overdue principal
at the rate borne by the Securities, 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; and
(ii) all Events of Default, other than the non-payment of
amounts of principal of or premium, if any, or interest on the
Securities that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 501(e) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Debt that is
the subject of such Event of Default has been discharged or the requisite
holders thereof have rescinded their declaration of acceleration in respect of
such Debt, and written notice of such discharge or rescission, as the case may
be, shall have been given to the Trustee by the Company and countersigned by the
requisite holders of such Debt or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. Collection of Debt and Suits for Enforcement by Trustee.
The Company and each of the Subsidiary Guarantors covenants that if an
Event of Default specified in Section 501(a) or (b) shall have occurred and be
continuing, the Company and each Subsidiary Guarantor will, upon demand of the
Trustee, pay to the Trustee for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities 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 the Securities, 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 or any Subsidiary Guarantor, as the case may be, 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
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may enforce the same against the Company, such Subsidiary Guarantor or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, such
Subsidiary Guarantor or any other obligor upon the Securities, 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 by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, 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.
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 upon the
Securities (including the Subsidiary Guarantors) or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities 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,
(a) 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 Securities 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
(b) to collect and receive any moneys or other securities or
property payable or deliverable upon the conversion or exchange of such
securities or upon any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 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 606.
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 Securities
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 on behalf of the Holders may vote for the election of a trustee
in a proceeding under the Bankruptcy Code and be a member of a creditors or
similar committee in such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and 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 Securities in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by or on deposit with 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 the distribution of such money on account of
principal or premium, if any or interest, upon presentation of the Securities
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 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest on the Securities 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 Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company and/or the
Subsidiary Guarantors, as the case may be.
SECTION 507. Limitation on Suits.
No Holder of any Securities 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
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
(including fees and expenses of its agents and counsel) to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture 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 Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article XII) and
in such Security of the principal of and premium, if any, and (subject to
Section 309) interest on such
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Security on the respective Stated Maturities expressed in such Security (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 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, the Subsidiary Guarantors, the
Trustee and the Holders 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 provided in Section 308, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders 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 Security 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.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities (subject to Section 507 hereof) 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 with respect to the Securities, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may, on behalf of the Holders of all of the Securities,
waive any past defaults hereunder, except a default
(a) in the payment of the principal of or premium, if any or
interest on any Security, or
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(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Security Outstanding.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company and each Subsidiary Guarantor covenant (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 may
affect the covenants or the performance of this Indenture; and the Company and
each Subsidiary Guarantor (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.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal (or premium, if any ) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and is
known to the Trustee, the Trustee shall mail to each Holder of the Securities in
the manner and to the extent provided in TIA Section 313(c) notice of the
Default or Event of Default within 90 days after the occurrence thereof;
provided, however, that, except in the case of a Default or an Event of Default
in the payment of principal of and premium, if any, or interest on any
Securities, the Trustee may withhold the notice to the Holders of the Securities
if a committee of its trust officers in good faith determines that withholding
such notice is in the interests of the Holders of the Securities.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
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(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting, pursuant to the terms of this
Indenture or otherwise, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Debt or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper Person or Persons;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
with sufficient detail as may be requested by the Trustee and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) 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, rely upon an Officers'
Certificate or an Opinion of Counsel;
(d) the Trustee may consult with counsel 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;
(e) 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 pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities (including fees
and expenses of its agents and counsel) which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into, and may conclusively rely upon, the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of Debt 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 and
the Subsidiary Guarantors, personally or by agent or attorney;
(g) 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;
(h) 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 other than any liabilities arising out of its
gross negligence; and
(i) except during the continuance of an Event of Default, (x)
the Trustee need perform only those duties as are specifically set
forth in this Indenture and (y) in the absence of gross negligence and
bad faith on its part, 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 principal
amount of the Outstanding Securities 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
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(j) in the absence of negligence and bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
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 603. Trustee Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Subsidiary Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture, the Securities or any Subsidiary
Guarantee, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and, upon the effectiveness of the Registration Statement,
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any 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 Securities and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company and the Subsidiary Guarantors with the same
rights it would have if it were not Trustee, Paying Agent, Registrar or such
other agent.
SECTION 605. Money Held in Trust.
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 or any Subsidiary Guarantor, as the
case may be.
SECTION 606. Compensation and Reimbursement.
The Company and the Subsidiary Guarantors jointly and severally agree:
(a) to pay to the Trustee (in its capacity as Trustee, Paying
Agent and Registrar) from time to time reasonable compensation 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);
(b) 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), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of enforcing this Indenture against the Company or the
Subsidiary Guarantors (including this Section 606) and of defending
itself against any claim (whether asserted by any Holder or the
Company) 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 Debt hereunder and shall survive the satisfaction and discharge of
this Indenture and any termination under any bankruptcy law. As security for the
performance of such obligations of the Company, the Trustee shall have a claim
prior to the Securities 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, or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(h) or (i), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $100,000,000, and have a Corporate Trust Office in The
City of New York, State of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, territorial 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 608. 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 609.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company at least 30 days prior to the date of such proposed resignation.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument executed by authority of the Company's
Board of Directors. If the instrument of acceptance by a successor Trustee
required by Section 609 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.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
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(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 Security for at least
six months, except when the Trustee's duty to resign is stayed in
accordance with the provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 607
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 Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver 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,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee, or (ii) subject to TIA Section 315(e), any Holder who
has been a bona fide Holder of a Security 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 and the appointment of a successor
Trustee.
(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, the
Company, by or pursuant to 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 shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities 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 and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Security 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.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
Every 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 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 subject to the retiring Trustee's rights as
provided under the last sentence of Section 606. 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 such
rights, powers and trusts.
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.
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SECTION 610. 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 of 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 Securities 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 Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities 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 Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, 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 702. Reports by Trustee.
Within 60 days after June 15 of each year commencing with the first
June 15 after the first issuance of Securities, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such June 15 if required by TIA Section 313(a). At the
time of its mailing to Holders, the Trustee shall file a copy of each such
report with the Company, the Commission and each stock exchange on which the
Securities are listed.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into any other
Person (whether or not the Company is the surviving Person), or directly or
indirectly sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Subsidiaries taken as a whole) to any Person or
Persons, in one transaction or a series of related transactions, unless each of
the following conditions is satisfied:
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(a) either (i) the Company is the surviving corporation or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by 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
(the "Surviving Entity") (A) is a corporation, partnership, limited
liability company or trust duly organized and validly existing under
the laws of the United States, any state thereof or the District of
Columbia and (B) expressly assumes, by a supplemental indenture in form
satisfactory to the Trustee, all the obligations of the Company under
this Indenture and the Securities;
(b) immediately after giving effect to such transaction or
series of transactions on a pro forma basis, no Default or Event of
Default has occurred and is continuing;
(c) immediately after giving effect to such transaction or
series of transactions on a pro forma basis, the Consolidated Net Worth
of the Company (or of the Surviving Entity if the Company is not the
continuing obligor under this Indenture) is equal to or greater than
the Consolidated Net Worth of the Company immediately prior to such
transaction or series of transactions;
(d) 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 at the beginning of the
most recently ended four full fiscal quarter period for which internal
financial statements are available), 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 Debt (other than
Permitted Debt) pursuant to the first paragraph of Section 1010;
(e) if the Company is not the continuing obligor under this
Indenture, each Subsidiary Guarantor, unless it is the other party to
such transaction or series of related transactions, has by supplemental
indenture confirmed that its Subsidiary Guarantee applies to the
Surviving Entity's obligations under this Indenture and the Securities;
(f) if any of the property or assets of the Company or its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1017 are complied with; and
(g) the Company delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that
such transaction complies with the requirements of this Indenture.
In the event of a merger of a Wholly Owned Restricted Subsidiary into the
Company, the Company need not comply with the foregoing clauses (c) and (d).
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of related transactions) of all
or substantially all of the properties or assets of one or more Restricted
Subsidiaries that constitutes all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
SECTION 802. Successor Substituted.
In the event of any transaction or series of related transactions
described in and complying with the conditions listed in Section 801 in which
the Company is not the continuing obligor under this Indenture, the Surviving
Entity shall succeed to, and be substituted for, and may exercise every right
and power of, the
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Company under this Indenture with the same effect as if such Surviving Entity
had been named as the Company herein, and thereafter the Company shall, except
in the case of a lease, be discharged of all its obligations and covenants under
this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SECURITIES GUARANTEES
SECTION 901. Without Consent of Holders.
Without the consent of any Holders, the Company and any affected
Subsidiary Guarantor, each when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities or to add any
Subsidiary Guarantors of the Securities; or
(b) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Securities in addition to or
in place of the certificated Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 609; or
(f) to secure the Securities or any Subsidiary Guarantee;
(g) to cure any ambiguity, to correct or supplement any
provision in this Indenture which may be defective or inconsistent with
any other provision herein, or to make any other provision in this
Indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action shall
not adversely affect the interests of the Holders; or
(h) to qualify, or maintain the qualification of, this
Indenture under the Trust Indenture Act.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture,
Security or Subsidiary Guarantee, and upon receipt by the Trustee of the
documents described in Section 602 hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture or Subsidiary
Guarantee authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture or Subsidiary Guarantee that affects its own rights,
duties or immunities under this Indenture or otherwise.
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SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company, any affected Subsidiary Guarantor and the Trustee, the
Company and the Subsidiary Guarantors, each when authorized by a Board
Resolution, and the Trustee may enter into one or more indentures supplemental
hereto for the purpose of modifying in any manner this Indenture or any
Subsidiary Guarantee; provided, however, that no such indenture supplemental
may, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency in which any Security 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); or
(b) reduce the percentage in aggregate principal amount of the
Outstanding Securities required to consent to any amendment of, or
waiver of compliance with, any provision of or defaults under this
Indenture; or
(c) waive a Default or Event of Default in the payment of
principal of, or premium, if any, or interest on the Securities (except
a rescission of acceleration of Securities by the Holders of at least a
majority in aggregate principal amount of the then Outstanding
Securities (including Additional Securities issued under this
Indenture, if any); or
(d) release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guarantee or this Indenture, except in
accordance with the terms of this Indenture;
(e) amend, change or modify in any manner adverse to the
Holders the obligation of the Company to make and consummate a Change
of Control Offer or Asset Sale Offer in accordance with the provisions
of Section 1012 on Section 1013, respectively; or
(f) amend, change or modify any of the provisions in Article
XII in a manner adverse to the Holders.
(g) amend, change or modify any of the provisions in this
Section 902.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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 and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company and the Subsidiary Guarantor subject to the
customary exceptions. 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.
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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 Securities 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 Securities to Supplemental Indentures.
Securities 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 Company shall so determine,
new Securities 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 Securities.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, any affected 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 Security affected, in the manner provided for in Section
106, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of and premium, if any and interest
on the Securities in accordance with the terms of the Securities and this
Indenture. Principal and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities or any
Subsidiary Guarantor in respect of the Subsidiary Guarantees and this Indenture
may be served. The Corporate Trust Office located at SunTrust Bank, Atlanta c/o
First Chicago Trust Company, Attention: Xxxxx Xxxxxxxxxx, Corporate
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Trust, 8th Floor, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 of the Trustee shall
be such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee and the
Company and each Subsidiary Guarantor hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
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 The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or premium, if any, or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal of or 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
Securities, it will, on or before each due date of the principal of or premium,
if any, or interest on any Securities, deposit with a Paying Agent a sum
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 such action or any
failure so to act.
If the Company is not acting as Paying Agent, 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:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest on Securities 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;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(c) 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; and
(d) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights
and obligations of 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 Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment
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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 or premium, if any,
or interest on any Security 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 Security 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, 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 publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and corporate power of the Company and each Restricted Subsidiary;
provided, however, that the Company shall not be required to preserve any such
corporate existence and corporate power if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole and
that the loss thereof is not 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 material 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)
material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a 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.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of their respective
businesses 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 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
disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company will at all times keep all of its and its Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company to be responsible, against loss or damage to the
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extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties.
SECTION 1008. Statement by Officers As to Default.
(a) The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of compliance by the Company and the Subsidiary Guarantors with
all conditions and covenants under this Indenture. For purposes of this Section
1008(a), such compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of Debt of
the Company or any Subsidiary Guarantor gives any notice or takes any other
action with respect to a claimed default, the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officers Certificate specifying such event, notice or other
action (with a copy of any such other notice) within 10 days after the Company
becomes aware of its occurrence.
SECTION 1009. Provision of Reports and Financial Statements.
The Company shall be required to 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(d) of
the Exchange Act. The Company shall also be required (a) to supply to the
Trustee and each Holder, or supply to the Trustee for forwarding to each such
Holder, 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, to supply at the Company's cost copies
of such reports and documents to any prospective Holder of Securities promptly
upon written request.
SECTION 1010. Limitation on Incurrence of Debt and Issuance of
Disqualified Stock.
The Company shall not, and shall 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 Debt (including Acquired Debt), other than Permitted Debt, or
issue any Disqualified Stock, except that the Company or a Restricted Subsidiary
may incur Debt or issue Disqualified Stock if, at the time of such incurrence or
issuance, the Fixed Charge Coverage Ratio for the four full fiscal quarters
(taken as one accounting period) immediately preceding the incurrence of such
Debt or the issuance of such Disqualified Stock for which internal financial
statements are available would have been equal to at least 2.0 to 1.0 if such
incurrence is on or prior to the second anniversary of the Closing Date and 2.25
to 1.0 if thereafter.
In making the foregoing calculation for any four-quarter period which
includes the Closing Date, pro forma effect shall be given to the Transactions,
as if such transactions had occurred at the beginning of such four-quarter
period. In addition (but without duplication), in making the foregoing
calculation, pro forma effect will be given to: (i) the incurrence of such Debt
and (if applicable) the application of the net proceeds therefrom, including to
refinance other Debt, as if such Debt was incurred and the application of such
proceeds occurred at the beginning of such four-quarter period, (ii) the
incurrence, repayment or retirement of any other Debt by the Company or its
Restricted Subsidiaries since the first day of such four-quarter period as if
such Debt was incurred, repaid or retired at the beginning of such four-quarter
period, (iii) the acquisition (whether by purchase,
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merger or otherwise) or disposition (whether by sale, merger or otherwise) of
any other company, entity or business acquired or disposed of by the Company or
any Restricted Subsidiary, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period. In making a computation under the
foregoing clause (i) or (ii), (A) interest on Debt bearing a floating interest
rate shall be computed as if the rate in effect on the dated of computation had
been the applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Debt if such Hedging Obligations have a remaining
term at the date of determination in excess of 12 months), (B) if such Debt
bears, at the option of the Company, a fixed or floating rate of interest,
interest thereon will be computed by applying, at the option of the Company,
either the fixed or floating rate and (C) the amount of any Debt under a
revolving credit facility will be computed based on the average daily balance of
such Debt during such four-quarter period.
SECTION 1011. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment unless at the time of, and immediately after giving
effect to, the proposed Restricted Payment: (i) no Default or Event of Default
has occurred and is continuing, (ii) the Company could incur at least $1.00 of
additional Debt (other than Permitted Debt) pursuant to the first paragraph of
Section 1010 and (iii) the aggregate amount of all Restricted Payments declared
or made after the Closing Date does not exceed the sum of:
(A) 50% of the Consolidated Net Income of the Company accrued
on a cumulative basis during the period (taken as one accounting
period) beginning on the first day of the Company's fiscal quarter
during which the Closing Date occurs and ending on the last day of the
Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such proposed
Restricted Payment (or, if such aggregate cumulative Consolidated Net
Income is a loss, minus 100% of such amount), plus
(B) the aggregate net cash proceeds received by the Company
after the Closing Date from the issuance or sale (other than to a
Subsidiary) of, or as a capital contribution in respect of, Qualified
Equity Interests of the Company (excluding from this computation
proceeds of a Public Equity Offering used to redeem Securities as
discussed above), plus
(C) the aggregate net proceeds, including the fair market
value of property other than cash (as determined by the Board of
Directors, whose good faith determination will be conclusive), received
by the Company after the Closing Date from the issuance or sale (other
than to a Subsidiary) of debt securities or Disqualified Stock that
have been converted into or exchanged for Qualified Stock of the
Company, together with the aggregate net cash proceeds received by the
Company at the time of such conversion or exchange, plus
(D) $5,000,000.
(b) Notwithstanding paragraph (a) above, the Company and its Restricted
Subsidiaries may take any of the following actions, so long as, with respect to
clauses (ii), (v), and (viii), no Default or Event of Default has occurred and
is continuing or would occur:
(i) The payment of any dividend within 60 days after the date
of declaration thereof, if at the declaration date such payment would
not have been prohibited by the foregoing provision;
(ii) The repurchase, 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, Qualified
Equity Interests of the Company;
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(iii) The purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated Debt in
exchange for, or out of the net cash proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of Qualified
Equity Interests of the Company;
(iv) The purchase, redemption, defeasance or other acquisition
or retirement for value of Subordinated Debt in exchange for, or out of
the net cash proceeds of a substantially concurrent issuance or sale
(other than to a Subsidiary) of, new Subordinated Debt, so long as the
Company or a Restricted Subsidiary would be permitted to refinance such
original Subordinated Debt with such new Subordinated Debt pursuant to
clause (xiii) of the definition of Permitted Debt;
(v) The repurchase of any Subordinated Debt at a purchase
price not greater than 101% of the principal amount of such
Subordinated Debt in the event of a "change of control" in accordance
with provisions similar to the provisions of Section 1012; provided
that, prior to or simultaneously with such repurchase, the Company has
made the Change of Control Offer as provided in such covenant with
respect to the Securities and has repurchased all Securities validly
tendered for payment in connection with such Change of Control Offer;
(vi) The purchase of any Capital Stock, or options to purchase
Capital Stock, of Farah pursuant to the Merger Agreement;
(vii) The payment of amounts to shareholders of Farah pursuant
to appraisal rights in respect of up to 33-1/3% of the Capital Stock of
Farah required by law in connection with the Merger; and
(viii) The repurchase of, or options to purchase, Qualified
Equity Interests of the Company or any of its Subsidiaries from
employees, former employees, directors or former directors of the
Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors or their
respective estates), pursuant to the terms of the agreements (including
employment agreements) or plans (or amendments thereto) approved by the
Board of Directors of the Company under which such individuals purchase
or sell or are granted the option or right to purchase or sell such
Qualified Equity Interests; provided further, however, that the
aggregate amount of such repurchases shall not exceed $1,000,000 in any
calender year (excluding any such repurchases funded with the proceeds
of any life insurance policy or policies maintained by the Company or
under which the Company is the beneficiary).
The payments described in clauses (ii), (iii), (v) and (viii) of this paragraph
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 (iii) of paragraph (a) of this
Section 1011 and the payments described in clauses (i), (iv), (vi) and (vii) 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 (iii) of
paragraph (a) of this Section 1011.
(c) For the purpose of making any calculations under this Indenture (i)
if a Restricted Subsidiary is designated an Unrestricted Subsidiary, the Company
shall be deemed to have made an Investment in an amount equal to the greater of
fair market value or net book value of the net assets of such Restricted
Subsidiary at the time of such designation as determined by the Board of
Directors of the Company, whose good faith determination will be conclusive,
(ii) any property transferred to or from an Unrestricted Subsidiary will be
valued at fair market value at the time of such transfer, as determined by the
Board of Directors of the Company, whose good faith determination will be
conclusive and (iii) subject to the foregoing, the amount of any Restricted
Payment, if other than cash, will be determined by the Board of Directors of the
Company, whose good faith determination will be conclusive.
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If the aggregate amount of all Restricted Payments calculated under
paragraph (a) of this Section 1011 includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, the
aggregate amount of all Restricted Payments calculated under the first paragraph
of this Section 1011 shall be reduced by the lesser of (x) the net asset value
of such Subsidiary at the time it becomes a Restricted Subsidiary and (y) the
initial amount of such Investment.
If an Investment resulted in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments calculated under this Section 1011
shall be reduced by the amount of any net reduction in such Investment
(resulting from the payment of interest or dividends, loan repayment, transfer
of assets or otherwise), to the extent such net reduction is not included in the
Company's Consolidated Net Income; provided that the total amount by which the
aggregate amount of all Restricted Payments may be reduced shall not exceed the
lesser of (x) the cash proceeds received by the Company and its Restricted
Subsidiaries in connection with such net reduction and (y) the initial amount of
such Investment.
In computing the Consolidated Net Income of the Company for purposes of
clause (iii)(A) of paragraph (a) of this Section 1011, (i) the Company may use
audited financial statements for the portions of the relevant period for which
audited financial statements are available on the date of determination and
unaudited financial statements and other current financial data based on the
books and records of the Company for the remaining portion of such period and
(ii) the Company will be permitted to rely in good faith on the financial
statements and other financial data derived from the books and records of the
Company that are available on the date of determination. If the Company makes a
Restricted Payment that, at the time of the making of such Restricted Payment,
would in the good faith determination of the Company be permitted under the
requirements of this Indenture, such Restricted Payment shall be deemed to have
been made in compliance with this Indenture notwithstanding any subsequent
adjustments made in good faith to the Company's financial statements affecting
Consolidated Net Income of the Company for any period.
SECTION 1012. Purchase of Securities upon a Change of Control.
If a Change of Control occurs at any time, then each Holder shall have
the right to require that the Company purchase such Holder's Securities and
Additional Securities, if any, in whole or in part, at a purchase price in cash
equal to 101% of the principal amount of such Securities and Additional
Securities, if any, plus accrued and unpaid interest, if any, to the date of
purchase, pursuant to the offer described below (the "Change of Control Offer")
and the other procedures set forth in this Indenture.
Within 30 days following any Change of Control, the Company shall
notify in writing the Trustee thereof and give written notice of such Change of
Control to each holder of Securities and Additional Securities by first-class
mail, postage prepaid, at its address appearing in the Security Register,
stating, among other things, (i) the purchase price and the purchase date, which
will 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 (the "Change of Control Payment Date"); (ii)
that any Security not tendered will continue to accrue interest; (iii) that,
unless the Company defaults in the payment of the purchase price, any Securities
or Additional Securities accepted for payment pursuant to the Change of Control
Offer will cease to accrue interest after the Change of Control purchase date;
(iv) that Holders electing to have any Securities purchased pursuant to a Change
of Control Offer shall be required to surrender the Securities, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Securities
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 of Control
Payment 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 of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Securities delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Securities purchased; (vi) that
Holders whose Securities are being purchased only in part shall be issued new
Securities equal in principal amount
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to the unpurchased portion of the Securities 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 Securities must follow in
order to tender their Securities; and (viii) the circumstances and relevant
facts regarding such Change of Control.
The Company shall comply with any applicable tender offer rules
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws and regulations in connection with a Change of Control Offer.
SECTION 1013. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in 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 good faith determination will be conclusive, and
evidenced by a resolution of the Board of Directors) and (ii) the consideration
received by the Company or the relevant Restricted Subsidiary in respect of such
Asset Sale consists of at least 75% cash or Cash Equivalents; provided that the
amount of (x) any liabilities (as shown on the most recent balance sheet of the
Company or such Restricted Subsidiary) of the Company or any of its Restricted
Subsidiaries (other than liabilities that are by their terms subordinated to the
Securities or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Company
or such Restricted Subsidiary from further liability and (y) any securities,
notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are promptly converted by the Company or
such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the
cash or Cash Equivalents received), shall be deemed to be cash or Cash
Equivalents, as the case may be, for purposes of this provision.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company may, at its option, within 360 days after such Asset Sale, (i)
apply all or a portion of the Net Cash Proceeds to the permanent reduction of
amounts outstanding under the New Credit Facility or to the repayment of other
Senior Debt of the Company or a Restricted Subsidiary or (ii) invest (or enter
into a legally binding agreement to invest or cause a Restricted Subsidiary to
invest or enter into such agreement to invest) all or a portion of such Net Cash
Proceeds in properties and assets to replace the properties and 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, as
such businesses are conducted prior to such Asset Sale. If any such legally
binding agreement to invest such Net Cash Proceeds is terminated, the Company
may, within 90 days of such termination or within 360 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.
Notwithstanding clause (ii) of the immediately preceding paragraph, if the
Company or a Restricted Subsidiary engages in an Asset Sale of Designated Assets
within 365 days after the Closing Date, the Company or the relevant Restricted
Subsidiary shall be required to receive, with respect to consideration of up to
$11,000,000 received in respect of such Asset Sale of Designated Assets, 25% of
such consideration in the form of cash and Cash Equivalents and, with respect to
consideration, if any, in excess of $11,000,000 received in respect of such
Asset Sale of Designated Assets, 75% of such consideration in the form of cash
and Cash Equivalents. The amount of such Net Cash Proceeds not so used as set
forth above in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $5,000,000,
the Company shall, within 30 days thereafter, make an offer to purchase (an
"Asset Sale Offer") from all Holders of Securities and Additional Securities, if
any, on a pro rata basis, in accordance with the procedures set forth in
paragraph (d) below, the maximum principal amount (expressed as a multiple of
$1,000) of Securities and Additional Securities, if any, that may be purchased
with the Excess Proceeds. The offer price as to each Security will be payable in
cash in an amount equal to 100% of the principal amount of such Security, plus
in each case accrued and unpaid interest, if any, to the date of repurchase. To
the extent that the aggregate principal amount of Securities and
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Additional Securities, if any, tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use the portion of the Excess Proceeds
not required to be used to repurchase the Securities and Additional Securities,
if any, for any other purpose as determined by the Company which is not
prohibited by this Indenture. If the aggregate principal amount of Securities
and Additional Securities validly tendered and not withdrawn by holders thereof
exceeds the Excess Proceeds, the Securities and Additional Securities to be
purchased will be selected on a pro rata basis (based upon the principal amount
of Securities). Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds will be reset to zero.
(d) Within the time period described in paragraph (c) above for making
an Asset Sale Offer, the Company shall mail a notice to each Holder in the
manner provided in Section 106 stating: (1) that the Asset Sale Offer is being
made pursuant to the provisions of Section 1013 of this Indenture and that all
Securities and Additional Securities, if any, duly and timely tendered shall be
accepted for payment (except, as provided above, if the aggregate principal
amount as the case may be, of the Securities and Additional Securities exceeds
the amount of Excess Proceeds); (2) the purchase price and the purchase date
(the "Asset Sale Purchase Date"), which date shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed; (3) that any
Securities or new Additional Securities not tendered shall continue to accrue
interest; (4) that, unless the Company defaults in the payment of the purchase
price, all Securities and Additional Securities accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the Asset Sale
Purchase Date; (5) that Holders electing to have any Securities and Additional
Securities purchased pursuant to an Asset Sale Offer shall be required to
surrender the Securities, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Securities 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 Asset Sale Purchase Date; (6) 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 Asset Sale
Purchase Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Securities and Additional
Securities delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Securities purchased; (7) that Holders
whose Securities and Additional Securities are being purchased only in part
shall be issued new Securities or new Additional Securities equal in principal
amount to the unpurchased portion of the Securities or Additional Securities
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof; (8) any other procedures that the
Holders of Securities and Additional Securities must follow in order to tender
their Securities; and (9) the circumstances and relevant facts regarding such
Asset Sale.
SECTION 1014. 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 with, or for the benefit of, any Affiliate of the
Company or any of its Restricted Subsidiaries, unless (a) such transaction or
series of related transactions is on terms that are no less favorable to the
Company or such Restricted Subsidiary, as the case may be, than those that could
have been obtained in an arm's length transaction with third parties who are not
Affiliates and (b) either (i) with respect to any transaction or series of
related transactions involving aggregate payments in excess of $1,000,000, but
less than $5,000,000, the Company delivers a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions comply with
clause (a) above and that such transaction or transactions have been approved by
the Board of Directors (including a majority of the Disinterested Directors) of
the Company or (ii) with respect to a transaction or series of related
transactions involving aggregate payments equal to or greater than $5,000,000,
the Company delivers to the Trustee (x) an Officers' Certificate certifying that
such transaction or series of related transactions have been approved by the
Board of Directors (including a majority of the Disinterested Directors) of the
Company and (y) a written opinion from a nationally recognized investment
banking firm to the effect that such transaction or series of related
transactions are fair to the Company or such Restricted Subsidiary from a
financial point of view.
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The foregoing covenant shall not restrict any of the following:
(A) transactions among the Company and/or its Restricted
Subsidiaries;
(B) the Company from paying reasonable and customary regular
compensation or fees to, or entering into customary expense
reimbursement, indemnification or similar arrangements with, directors
of the Company or any Restricted Subsidiary who are not employees of
the Company or any Restricted Subsidiary;
(C) the issuance of securities or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans or
incentive plans approved by the Board of Directors;
(D) transactions permitted under Section 1011;
(E) in the case of joint ventures existing on the Closing Date
in which the Company has an interest, so long as other parties to the
joint venture that are not Affiliates of the Company own at least 50%
of the equity of such joint venture, transactions between such joint
venture and the Company or any Restricted Subsidiary; or
(F) transactions between a Receivables Subsidiary and any
Person in which the Receivables Subsidiary has an investment.
SECTION 1015. 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 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, (b) pay any Debt
owed to the Company or any other Restricted Subsidiary, (c) make loans or
advances to the Company or any other Restricted Subsidiary, or (d) transfer any
of its properties or assets to the Company or any other Restricted Subsidiary,
except for such encumbrances or restrictions existing under or by reason of any
of the following:
(i) the Indenture, the New Credit Facility, as originally
executed, and any other agreement in effect on the Closing Date to the
extent listed on Schedule II hereto;
(ii) applicable law;
(iii) customary non-assignment provisions of any lease
governing a leasehold interest of the Company or any Restricted
Subsidiary;
(iv) 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;
(v) any encumbrance or restriction contained in contracts
for sales of Capital Stock or assets permitted by Section 1013 with
respect to assets to be sold pursuant to such contract; and
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(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
(i) and (iv); provided that the terms and conditions of any such
encumbrances or restrictions are not materially less favorable to the
Holders of Securities than those under or pursuant to the agreement so
extended, renewed, refinanced or replaced.
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary,
directly or indirectly, to issue, convey, sell, assign, transfer, lease or
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary
(including options, warrants or other rights to purchase shares of such Capital
Stock) except (a) to the Company or a Wholly Owned Restricted Subsidiary or (b)
in a transaction or series of related transactions consisting of a sale,
provided that immediately after giving effect to such sale neither the Company
nor any of its Subsidiaries owns any shares of Capital Stock of such Restricted
Subsidiary (including options, warrants or other rights to purchase shares of
such Capital Stock) and such sale complies with the provisions of Section 1013.
The Company shall not permit any Restricted Subsidiary that is a
Subsidiary Guarantor to issue Preferred Stock.
SECTION 1017. Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, incur, affirm or suffer to exist any Lien of any kind securing any
Pari Passu Debt or Subordinated Debt (including any assumption, guarantee or
other liability with respect thereto by any Restricted Subsidiary) upon any
property or assets (including any intercompany notes) of the Company or any
Restricted Subsidiary now owned or acquired after the Closing Date, or any
income or profits therefrom, unless the Securities are directly secured equally
and ratably with (or prior to in the case of Subordinated Debt) the obligation
or liability secured by such Lien, and except for any Lien securing Acquired
Debt created prior to the incurrence of such Debt by the Company or any
Restricted Subsidiary, provided that any such Lien only extends to the assets
that were subject to such Lien securing such Acquired Debt prior to the related
acquisition by the Company or the Restricted Subsidiary.
SECTION 1018. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary so long as (i) neither the Company nor any Restricted Subsidiary is
directly or indirectly liable for any Debt of such Subsidiary, (ii) no default
with respect to any Debt of such Subsidiary would permit (upon notice, lapse of
time or otherwise) any holder of any other Debt of the Company or any Restricted
Subsidiary to declare a default on such other Debt or cause the payment thereof
to be accelerated or payable prior to its Stated Maturity, (iii) any Investment
in such Subsidiary made as a result of designating such Subsidiary an
Unrestricted Subsidiary shall not violate the provisions of Section 1011, (iv)
neither the Company nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
Persons who are not Affiliates of the Company and (v) neither the Company nor
any Restricted Subsidiary has any obligation to subscribe for additional shares
of Capital Stock or other equity interest in such Subsidiary, or to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results.
(b) The Board of Directors of the Company may designate any
Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no Default
or Event of Default has occurred and is continuing following such designation
and (ii) the Company could incur at least $1.00 of additional Debt (other than
Permitted Debt)
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pursuant to the first paragraph of Section 1010 (treating any Debt of such
Unrestricted Subsidiary as the incurrence of Debt by a Restricted Subsidiary).
SECTION 1019. Limitation on Layering Debt.
The Company and each Subsidiary Guarantor shall not, directly or
indirectly, incur or otherwise permit to exist any Debt that is subordinate in
right of payment to any Debt of the Company or such Subsidiary Guarantor, as the
case may be, unless such Debt is also pari passu with, or subordinate in right
of payment to, the Securities or the Subsidiary Guarantee issued by such
Subsidiary Guarantor, as the case may be, or subordinate in right of payment to
the Securities or such Subsidiary Guarantee, as the case may be.
SECTION 1020. Limitation on Guarantees of Debt by Restricted
Subsidiaries.
The Company shall not permit any Restricted Subsidiary that is not a
Subsidiary Guarantor, directly or indirectly, to guarantee, assume or in any
other manner become liable for the payment of any Debt of the Company or any
Debt of any other Restricted Subsidiary, unless (a) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture providing for a
guarantee of payment of the Securities by such Restricted Subsidiary; and (b)
with respect to any guarantee of Subordinated Debt by a Restricted Subsidiary,
any such guarantee is subordinated to such Restricted Subsidiary's Subsidiary
Guarantee at least to the same extent as such Subordinated Debt is subordinated
to the Securities, provided that the foregoing provision shall not be applicable
to any guarantee by any Restricted Subsidiary that existed at the time such
Person became a Restricted Subsidiary and was not incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary.
SECTION 1021. Limitation on Conduct of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, conduct any business other than the business the Company and
its Restricted Subsidiaries was conducting on the Closing Date or businesses
reasonably related or ancillary thereto, except to such extent as would not be
material to the Company and its Restricted Subsidiaries taken as a whole.
SECTION 1022. Waiver of Certain Covenants.
The Company or any Restricted Subsidiary may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1005 through 1021, inclusive, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities, 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 and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
(a) The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time on or after June 15, 2003,
subject to the conditions and at the Redemption Prices specified in the form of
Security attached hereto as Exhibit A, together with accrued interest to the
Redemption Date.
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(b) In addition, at any time or from time to time prior to June 15,
2001, the Company may redeem, on one or more occasions, up to 35% of the sum of
(i) the initial aggregate principal amount of the Securities and (ii) the
initial aggregate principal amount of any Additional Securities with the net
proceeds of one or more Public Equity Offerings at a redemption price equal to
111% of the principal amount thereof, 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 the relevant Interest
Payment Date); provided that, immediately after giving effect to such
redemption, at least $65,000,000 aggregate principal amount of the Securities
(including any Additional Securities) remains outstanding; provided further that
such redemptions occur within 90 days of the date of closing of the related
Public Equity Offering.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities 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 Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal of Securities; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities 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 Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
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 Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities 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 Security, or
the portion thereof, to be redeemed, and that interest thereon will
cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, and
(7) the CUSIP or CINS number, as the case may be.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or prior to 10:00 a.m. (New York City time) 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 Securities which are to be redeemed
on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities 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
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security 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 Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 309.
If any Security 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 borne by the
Securities.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires,
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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 Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article XII.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option applicable
to this Section 1202, the Company and the Subsidiary Guarantors shall be deemed
to have been discharged from their obligations with respect to all Outstanding
Securities on the date the conditions set forth in Section 1204 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire Debt represented
by the Outstanding Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1205 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Securities to receive solely from the trust
fund described in Section 1204 payments in respect of the principal of and
premium, if any, on and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
304, 305, 308, 1002 and 1003, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article XII. Subject to
compliance with this Article XII, the Company may exercise its option under this
Section 1202 notwithstanding the prior exercise of its option under Section 1203
with respect to the Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option applicable
to this Section 1203, each of the Company and the Restricted Subsidiaries shall
be released from its obligations under Sections 801(c), 801(d) and 801(f), the
covenants contained in Sections 1004 through 1022 (other than Section 1008) with
respect to the Outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the Events
of Default under sections 501(c), (d), (e) and (f), and the Securities 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 the Outstanding Securities, the Company
and any Restricted Subsidiary may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Sections 501(c), 501(d), 501(e) and 501(f) but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby.
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SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article XII applicable to it) as trust funds in
trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities, (A) money in an amount,
or (B) U.S. Government Obligations (as defined herein) that through the
scheduled payment of principal and interest thereon will provide money
in an amount, or (C) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to
pay and discharge the principal of and premium, if any, on and interest
on the Outstanding Securities on the Stated Maturity (or upon
Redemption Date, if applicable) of such principal (and premium, if any)
or installment of interest; provided that the 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 the Securities.
Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1103 hereof, a notice of its election to redeem
all of the Outstanding Securities at a future date in accordance with
Article XI hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the
foregoing. For this purpose, "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 at any time prior to the Stated Maturity of the principal of
the Securities, 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.
(2) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (8) and (9) of Section 501 hereof 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 other material agreement or instrument 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 1202, 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 the Closing Date, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities 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
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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 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Securities Outstanding 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) 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 1202 or the covenant defeasance under Section 1203, as
the case may be, have been complied with.
SECTION 1205. Deposited Money and U.S. 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 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article XII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 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 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1202 or 1203, 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 1205; provided, however, that if the Company makes any payment of
principal of or premium, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
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ARTICLE XIII
SECURITIES GUARANTEES
SECTION 1301. Subsidiary Guarantees.
(a) Each Subsidiary Guarantor hereby jointly and severally, fully,
absolutely, unconditionally and irrevocably guarantees to each Holder of a
Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of each Holder, the punctual payment and performance when due of all
Indenture Obligations which, for purposes of its Subsidiary Guarantee, shall
also be deemed to include all commissions, fees, charges, costs and other
expenses (including reasonable legal fees and disbursements of counsel) arising
out of or incurred by the Trustee or the Holders in connection with the
enforcement of any Subsidiary Guarantee. Without limiting the generality of the
foregoing, each Subsidiary Guarantor's liability shall extend to all amounts
that constitute part of the Indenture Obligations and would be owed by the
Company to such Holder or the Trustee under the Securities or this Indenture but
for the fact that they are unenforceable, reduced, limited, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act of 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 Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to the maximum amount as shall, 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 Subsidiary Guarantee or pursuant to paragraph (c) of this
Section 1301, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law.
(c) 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 its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by the Funding Guarantor in discharging the Indenture Obligations of
the Company or any other Subsidiary Guarantor's obligations with respect to its
Subsidiary Guarantee. "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 Subsidiary 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 shall be required to pay the probable liability of such Subsidiary
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), excluding debt in respect of the
Subsidiary Guarantee, as they become absolute and matured.
SECTION 1302. Guaranty Absolute.
Each Subsidiary Guarantor guarantees that the Securities shall be paid
or performed strictly in accordance with the terms of the Securities and this
Indenture, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Holder with
respect thereto. The
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obligations of each Subsidiary Guarantor under its Subsidiary Guarantee are
independent of the obligations of the Company under the Securities and this
Indenture, and a separate action or actions may be brought and prosecuted
against such Subsidiary Guarantor to enforce its Subsidiary Guarantee,
irrespective of whether any action is brought against the Company or any other
Subsidiary Guarantor or whether the Company or any other Subsidiary Guarantor is
joined in any such action or actions. The liability of each Subsidiary Guarantor
under its Subsidiary Guarantee shall be absolute and unconditional and the
liability and obligations of such Subsidiary Guarantor hereunder shall not be
released, discharged, mitigated, waived, impaired or affected in whole or in
part by:
(a) any lack of validity or enforceability of this Indenture
or the Securities with respect to the Company or any Subsidiary
Guarantor or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Indenture Obligations, or any
other amendment or waiver of or any consent to departure from this
Indenture, including any increase in the Indenture Obligations
resulting from the extension of additional credit to the Company or
otherwise;
(c) the failure to give notice to the Subsidiary Guarantor of
the occurrence of a Default under the provisions of this Indenture or
the Securities;
(d) any taking, release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the Indenture
Obligations;
(e) any failure, omission, delay by or inability on the part
of the Trustee or the Holders to assert or exercise any right, power or
remedy conferred on the Trustee or the Holders in this Indenture or the
Securities;
(f) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or any Subsidiary
Guarantor with or into any other Person, the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or
substantially all the assets of the Company or any Subsidiary
Guarantor, the marshalling of the assets and liabilities of the Company
or any Subsidiary Guarantor, the receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition with the creditors, or readjustment of, or other similar
proceedings affecting the Company or any Subsidiary Guarantor, or any
of the assets of any of them;
(g) the assignment of any right, title or interest of the
Trustee or any Holder in this Indenture or the Securities to any other
Person; or
(h) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company or a Subsidiary
Guarantor, other than payment in full of the Indenture Obligations; it
being the intent of each Subsidiary Guarantor that its obligations
hereunder shall not be discharged except by payment of all amounts
owing pursuant to this Indenture or the Securities.
The Subsidiary Guarantee of each Subsidiary Guarantor shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Indenture Obligations is rescinded or must otherwise be returned by
any Holder or the Trustee upon the insolvency, bankruptcy or reorganization of
the Company or otherwise, all as though such payment had not been made. Each
Subsidiary Guarantor further agrees, to the fullest extent that it may lawfully
do so, that, as between such Subsidiary Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the obligations
guaranteed hereby may be accelerated as provided in
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Article V of this Indenture for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (ii) in the
event of any acceleration of such obligations as provided in Article V of this
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantor for the purpose of this
Subsidiary Guarantee.
SECTION 1303. Waivers.
(a) Each Subsidiary Guarantor hereby expressly waives (to the extent
permitted by law) notice of the acceptance of its Subsidiary Guarantee and
notice of the existence, renewal, extension or the non-performance, non-payment,
or non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of this Indenture or the Securities or any other
notice whatsoever to or upon the Company or such Subsidiary Guarantor with
respect to the Indenture Obligations. Each Subsidiary Guarantor hereby
acknowledges communication to it of the terms of this Indenture and the
Securities and all of the provisions herein contained and consents to and
approves the same. Each Subsidiary Guarantor hereby expressly waives (to the
extent permitted by law) diligence, presentment and protest.
(b) Without prejudice to any of the rights or recourse which the
Trustee or the Holders may have against the Company, each Subsidiary Guarantor
hereby expressly waives (to the extent permitted by law) any right to require
the Trustee or the Holders to:
(1) initiate or exhaust any rights, remedies or recourse
against the Company, any Subsidiary Guarantor or any other Person;
(2) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the Holders; or
(3) initiate or exhaust any other remedy which the Trustee or
the Holders may have in law or equity;
before requiring, becoming entitled to or demanding payment from such Subsidiary
Guarantor under this Subsidiary Guarantee.
SECTION 1304. Subrogation.
Each Subsidiary Guarantor shall not exercise any rights that it may
acquire by way of subrogation under this Subsidiary Guarantee, by any payment
made hereunder or otherwise, until all the Indenture Obligations shall have been
paid in full. If any amount shall be paid to any Subsidiary Guarantor on account
of any such subrogation rights at any time when all the Indenture Obligations
shall not have been paid in full, such amount shall be held in trust for the
benefit of the Holders and the Trustees and shall forthwith be paid to the
Trustee, on behalf of the Holders, to be credited and applied to the Indenture
Obligations, whether matured or unmatured.
SECTION 1305. No Waiver; Remedies.
No failure on the part of any Holder or the Trustee to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
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SECTION 1306. Continuing Guaranty; No Right of Set-Off; Independent
Obligation.
(a) This Subsidiary Guarantee is a continuing guarantee of the payment
and performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and all
other amounts payable under this Subsidiary Guarantee and shall apply to and
secure any ultimate balance due or remaining unpaid to the Trustee or the
Holders under this Indenture or the Securities; and this Subsidiary Guarantee
shall not be considered as wholly or partially satisfied by the payment or
liquidation at any time or from time to time of any sum of money for the time
being due or remaining unpaid to the Trustee or the Holders.
(b) Each Subsidiary Guarantor hereby guarantees that the Indenture
Obligations shall be paid to the Trustee without set-off or counterclaim or
other reduction whatsoever (whether for taxes, withholding or otherwise) in
lawful currency of the United States of America.
(c) Each Subsidiary Guarantor guarantees that the Indenture Obligations
shall be paid strictly in accordance with their terms regardless of any lack of
validity or enforceability of any of such terms or the rights of the Holders
with respect thereto.
(d) Each Subsidiary Guarantor's liability to pay or perform or cause
the performance of the Indenture Obligations under this Subsidiary Guarantee
shall arise forthwith after demand for payment or performance by the Trustee has
been given to such Subsidiary Guarantor in the manner prescribed in this
Indenture.
SECTION 1307. Subsidiary Guarantors May Consolidate, Etc., on Certain
Terms.
(a) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor or shall prevent any sale or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor,
which consolidation, merger, sale or conveyance is otherwise in accordance with
the terms of this Indenture.
(b) Other than as set forth in paragraph (a) of this Section, no
Subsidiary Guarantor may consolidate with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving Person) another Person whether or not
affiliated with such Subsidiary Guarantor unless: (i) subject to the provisions
of Section 1309, the Person formed by or surviving such consolidation or merger
(if other than such Subsidiary Guarantor) assumes all of the obligations of such
Subsidiary Guarantor under this Indenture and its Subsidiary Guarantee, pursuant
to a supplemental indenture in form and substance satisfactory to the Trustee,
(b) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing and (c) immediately after giving
effect to such transaction, the Person formed by or surviving such consolidation
or merger (if other than such Subsidiary Guarantor) or to which such properties
and assets are transferred could incur at least $1.00 of additional Debt (other
than Permitted Debt) pursuant to the first paragraph of Section 1010.
SECTION 1308. Additional Guarantors.
The Company will cause each Person that becomes a Domestic Restricted
Subsidiary (other than a Receivables Subsidiary), or any other Restricted
Subsidiary that guarantees any other Debt of the Company or of a Domestic
Restricted Subsidiary, after the date of this Indenture to become a Subsidiary
Guarantor with respect to the Indenture Obligations by executing and delivering
a supplemental indenture to this Indenture providing for a Subsidiary Guarantee
by such Subsidiary under this Article XIII (or under a separate guarantee
agreement consistent in all material respects with this Article XIII). The
Company shall deliver to the Trustee, together with the supplemental indenture
referred to above, an Opinion of Counsel that such Subsidiary Guarantee is a
legal,
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valid, binding and enforceable obligation of such Subsidiary Guarantor, subject
to customary local law exceptions and customary exceptions for bankruptcy and
equitable principles.
SECTION 1309. Releases.
(a) In the event of (i) the conveyance, sale, assignment, transfer or
other disposition of all of the Capital Stock of a Subsidiary Guarantor to any
Person (by way of merger, consolidation or otherwise) in compliance with this
Section 1309 and the terms of this Indenture, (ii) a conveyance, sale,
assignment, transfer or other disposition of all or substantially all of the
assets of a Subsidiary Guarantor to any Person (by way of merger, consolidation
or otherwise) in compliance with this Section 1309 and the terms of this
Indenture, or (iii) the release or discharge of the guarantee that resulted in
the creation of such guarantee of the Securities, except a discharge or release
by or as a result of payment under such guarantee, then such Subsidiary
Guarantor (or Person acquiring such assets in the event of a sale or other
disposition of all of the assets of such Subsidiary Guarantor) shall be deemed
automatically and unconditionally released from and discharged from all of its
obligations under this Article XIII and its Subsidiary Guarantee without any
further action required on the part of the Trustee or any Holder; provided that,
in the event such transaction constitutes an Asset Sale, the Net Cash Proceeds
of such conveyance, sale, assignment, transfer or other disposition are applied
in accordance with Section 1013 hereof.
(b) Any Subsidiary Guarantor that is designated by the Board of
Directors of the Company as an Unrestricted Subsidiary, or ceases to be a
Subsidiary of the Company in accordance with the terms of this Indenture may, at
such time, at the option of the Board of Directors, be released and relieved of
its obligations under its Subsidiary Guarantee.
(c) Concurrently with the defeasance of the Securities under Section
1202 hereof, or the covenant defeasance of the Securities under Section 1203
hereof, the Subsidiary Guarantors shall be released from all their obligations
under their Subsidiary Guarantees under this Article XIII.
(d) The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a Company Request accompanied by an Officers'
Certificate certifying as to the compliance with this Section 1309. Any
Subsidiary Guarantor not so released shall remain liable for the full amount of
principal of and interest on the Securities as provided in its Subsidiary
Guarantee.
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 Subsidiary Guarantee are
knowingly made in contemplation of such benefits.
SECTION 1311. Severability.
In case any provision of this Subsidiary 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.
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ARTICLE XIV
SUBORDINATION OF SECURITIES AND SECURITIES GUARANTEES
SECTION 1401. Securities and Subsidiary Guarantees Subordinate to
Senior Debt.
(a) The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article XIV, the Debt represented by
the Securities and the payment of the principal of and premium, if any, and
interest on each and all of the Securities (but not amounts owing to the Trustee
by the Company pursuant to Section 606 hereof) are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt.
(b) Each Subsidiary Guarantor covenants and agrees, and each Holder of
a Security, by his acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article XIV, the Debt
represented by the Subsidiary Guarantee of such Subsidiary Guarantor is hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Guarantor Senior Debt of such Subsidiary Guarantor.
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of any payment or distribution of assets of the Company or
any Subsidiary Guarantor to creditors upon any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors, marshalling
of assets or any bankruptcy, insolvency or similar proceedings (each such event,
if any, is herein sometimes referred to as a "Proceeding") of the Company or any
Subsidiary Guarantor (the Company or such Subsidiary Guarantor being the
"Affected Obligor") (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, in
accordance with Article VIII) then (i) if the Affected Obligor is the Company,
the holders of Senior Debt shall first be entitled to receive payment in full,
in cash or Cash Equivalents, of all amounts due or to become due on or in
respect of such Senior Debt (including interest accruing after the commencement
of any such Proceeding at the rate specified therein whether or not such
interest is an allowed claim in such Proceeding) before the Holders of the
Securities are entitled to receive any payment of principal of and premium, if
any, and interest on the Securities or on account of the purchase or redemption
or other acquisition of Securities by the Company or any Subsidiary of the
Company and (ii) if the Affected Obligor is a Subsidiary Guarantor, the holders
of Guarantor Senior Debt of such Subsidiary Guarantor shall first be entitled to
receive payment in full, in cash or cash equivalents, of all amounts due or to
become due on or in respect of such Guarantor Senior Debt (including interest
accruing after the commencement of any such Proceeding at the rate specified
therein whether or not such interest is an allowed claim in such Proceeding)
before the Holders of the Securities are entitled to receive any payment or
distribution of any kind with respect to the Subsidiary Guarantee of such
Subsidiary Guarantor (any payment on or purchase, redemption or acquisition of
the Securities, referred to in clause (i), and any payment on a Subsidiary
Guarantee, referred to in clause (ii), being, individually and collectively, a
"Securities Payment"), and, to that end, if the Affected Obligor is the Company,
the holders of Senior Debt and, if the Affected Obligor is a Subsidiary
Guarantor, the holders of Guarantor Senior Debt of such Subsidiary Guarantor
(such Senior Debt or Guarantor Senior Debt, as the case may be, being "Affected
Obligor Senior Debt" of such Affected Obligor) shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities which may be payable or
deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 1402, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of an Affected Obligor of any kind or
character, whether in cash, property or securities, before all Affected Obligor
Senior Debt is paid in full,
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then such payment or distribution, except for amounts subject to the claim
granted to the Trustee in Section 606 hereof, shall be held in trust for the
holders of Affected Obligor Senior Debt and shall be paid over or delivered
forthwith to the trustee in bankruptcy or other Person making payment or
distribution of assets of the Affected Obligor for application to the payment of
all Affected Obligor Senior Debt remaining unpaid, to the extent necessary to
pay all Affected Obligor Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of the Affected Obligor
Senior Debt. Notwithstanding the foregoing, following the commencement of a
proceeding under the Bankruptcy Code and if the holders of Senior Debt receive
less than payment in full, the Holders may retain any payment or distribution
paid by the Company with respect to the Securities pursuant to a plan of
reorganization if
(a) the holders of claims for Designated Senior Debt (who are
entitled to vote for such plan in accordance with the Bankruptcy Code)
approve such plan by a vote which equals at least (x) 66-2/3% in
principal amount of such claims and (y) one-half in number of such
claims or
(b) in the event that there is more than one class of
Designated Senior Debt in such proceeding, the holders of claims for
each such class (who are entitled to vote for such plan in accordance
with the Bankruptcy Code) approve such plan by a vote which equals at
least (x) 66-2/3% in principal amount of such claims of such class and
(y) one-half in number of such claims of such class.
For purposes of this Article XIV only, the words "any payment or
distribution of any kind or character, cash, property or securities" shall not
be deemed to include a payment or distribution of equity or subordinated
securities of any Affected Obligor provided for in a plan of reorganization or
readjustment or of any other corporation provided for by such plan of
reorganization or readjustment that, in the case of subordinated securities, are
subordinated in right of payment to all then outstanding Affected Obligor Senior
Debt to at least the same extent as the Securities or Subsidiary Guarantees, as
the case may be, are so subordinated as provided in this Article XIV.
SECTION 1403. No Payment When Certain Senior Debt in Default.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made unless
and until such Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and payable in respect of the
Designated Senior Debt or other obligations that are the subject of such Senior
Payment Default shall have been paid in full. For purposes hereof, "Senior
Payment Default" means any default in the payment of principal of or premium, if
any, or interest on, Designated Senior Debt or a default in the payment of any
other obligation under the Designated Senior Debt, when due, whether at the
Stated Maturity of any such payment or by declaration of acceleration, call for
redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default from the New
Credit Facility Agent or from an authorized Person on behalf of any holder of
Designated Senior Debt, no Securities Payment shall be made during the period
(the "Payment Blockage Period") commencing on the date of receipt of such
written notice (the "Blockage Notice") and ending on the earliest of (i) the
179th day after the date of such receipt of the Blockage Notice (the "Initial
Period") unless a Senior Payment Default has occurred and is continuing at the
end of such 179-day period, (ii) the date, if any, on which the Designated
Senior Debt to which such default relates is discharged or such default is
waived or otherwise cured and (iii) the date, if any, on which such Payment
Blockage Period shall have been terminated by written notice to the Company or
the Trustee from the New Credit Facility Agent or (after the date on which the
New Credit Facility shall no longer be in effect and no amount shall be
outstanding thereunder) from the Person who gave the Blockage Notice. 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
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consecutive days when no Payment Blockage Period is in effect. No Senior
Nonmonetary Default that existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to the Designated Senior Debt
initiating such Payment Blockage Period shall be, or can be, made the basis for
the commencement of a subsequent Payment Blockage Period unless such Senior
Nonmonetary Default shall have been cured or waived for a period of not less
than 90 consecutive days. For purposes hereof, "Senior Nonmonetary Default"
means the occurrence or existence of any event, circumstance, condition or state
of facts that, by the terms of any instrument pursuant to which any Designated
Senior Debt is outstanding, permits one or more holders of such Designated
Senior Debt (or a trustee or agent on behalf of the holders thereof) to declare
such Designated Senior Debt due and payable prior to the date on which it would
otherwise become due and payable, other than a Senior Payment Default.
Notwithstanding the foregoing, the Company and the Subsidiary Guarantors may
make Securities Payments without regard to the foregoing if the Company and the
Trustee receive written notice approving such payment from a representative of
such Designated Senior Debt affected by such Senior Payment Default or Senior
Nonmonetary Default.
In the event that, notwithstanding the foregoing, the Company or any
Subsidiary Guarantor shall make any payment to the Trustee or any Holder
prohibited by the foregoing provisions of this Section 1403, then such payment
shall be held in trust for the holders of the Affected Obligor Senior Debt and
shall be paid over and delivered forthwith to the holders of the Affected
Obligor Senior Debt remaining unpaid, to the extent necessary to pay in full all
the Affected Obligor Senior Debt.
SECTION 1404. Payment Permitted If No Default.
Nothing contained in this Article XIV or elsewhere in this Indenture or
in any of the Securities shall, at any time except during the pendency of any
Proceeding referred to in Section 1402 or under the conditions described in
Section 1403, prevent (a) the Company or any Subsidiary Guarantor from making
Securities Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Securities Payments or the retention of such
payment by the Holders.
SECTION 1405. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the rights of the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of and premium, if
any, and interest on the Securities shall be paid in full. Subject to the
payment in full of all Guarantor Senior Debt, the rights of the Holders of the
Securities shall be subrogated to the rights of the holders of such Guarantor
Senior Debt to receive payments and distributions of cash, property and
securities applicable to such Guarantor Senior Debt until the principal of and
premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt or Guarantor Senior Debt of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article XIV, and no payments over pursuant to the
provisions of this Article XIV to the holders of Senior Debt or Guarantor Senior
Debt by Holders of the Securities or the Trustee, shall, as among the Company,
the Subsidiary Guarantors, their respective creditors (other than holders of
Senior Debt and the Guarantor Senior Debt and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Debt). Neither the Holders of the Securities nor the Trustee shall have
any claim against the holders of the Senior Debt or the Guarantor Senior Debt or
the New Credit Facility Agent for any impairment of the subrogation rights
herein granted arising out of any release of Liens securing the Senior Debt or
the Guarantor Senior Debt.
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SECTION 1406. Provisions Solely to Define Relative Rights.
The provisions of this Article XIV 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 Debt and Guarantor Senior Debt on the other hand. Nothing
contained in this Article XIV or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors (other than holders of Senior Debt) and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article XIV of the holders of Senior Debt, is
intended to rank equally with all other general obligations of the Company) to
pay to the Holders of the Securities the principal of and premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) impair, as among the Subsidiary Guarantors,
their creditors (other than holders of Guarantor Senior Debt) and the Holders of
the Securities, the obligation of the Subsidiary Guarantors, which is absolute
and unconditional (and which, subject to the rights under this Article XIV of
the holders of Guarantor Senior Debt, is intended to rank equally with all other
general obligations of the Subsidiary Guarantors) to pay to the Holders of the
Securities the principal of and premium, if any, and interest on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (c) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company (other than the holders of Senior
Debt) or the relative rights against the Subsidiary Guarantors of the Holders of
the Securities and creditors of the Subsidiary Guarantors (other than the
Holders of Guarantor Senior Debt); or (d) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XIV of the holders of Senior Debt and Guarantor Senior Debt to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder. The holders of the Senior Debt and the New Credit Facility Agent,
as the case may be, shall be entitled to enforce the provisions of this Article
XIV against the Company, the Subsidiary Guarantors, the Holders of the
Securities and the Trustee.
SECTION 1407. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XIV and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt or
Guarantor Senior Debt to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Subsidiary Guarantor or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Company or any
Subsidiary Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt or Guarantor Senior Debt, as the case may be, may, at
any time and from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities, without incurring responsibility to the
Trustee or the Holders of the Securities and without impairing or releasing the
subordination provided in this Article XIV or the obligations hereunder of the
Holders of the Securities to the holders of Senior Debt or Guarantor Senior
Debt, as the case may be, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt or Guarantor Senior Debt, as the case may be, or otherwise
amend or supplement in any manner Senior Debt or Guarantor Senior Debt, as the
case may be, or any instrument evidencing the same or any agreement under which
Senior Debt or Guarantor Senior Debt, as the case may be, is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Debt or any Guarantor Senior Debt, as the case may
be; (iii) release any Person liable
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in any manner for the collection of Senior Debt or any Guarantor Senior Debt, as
the case may be; and (iv) exercise or refrain from exercising any rights against
the Company or any Subsidiary Guarantor and any other Person.
SECTION 1409. Notice to Trustee.
The Company and each Subsidiary Guarantor shall give prompt written
notice to the Trustee of any fact known to the Company or such Subsidiary
Guarantor which would prohibit the making of any payment to or by the Trustee in
respect of the Securities and of any subsequent cure or waiver thereof.
Notwithstanding the provisions of this Article XIV or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or a holder
of Guarantor Senior Debt or from any trustee or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, shall be entitled in all
respects to assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior Debt or
a holder of Guarantor Senior Debt (or a trustee or agent therefor) to establish
that such notice has been given by a holder of Senior Debt or a holder of
Guarantor Senior Debt (or a trustee 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 Debt or a holder of Guarantor
Senior Debt, as the case may be, to participate in any payment or distribution
pursuant to this Article XIV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt or Guarantor Senior Debt, as the case may be, 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 XIV, 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 1410. Reliance on Judicial Order or Certificate of Liquidation
Agent.
Upon any payment or distribution of assets of the Company or any
Subsidiary Guarantor referred to in this Article XIV, the Trustee and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in a Proceeding, 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 Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt, Guarantor Senior Debt and other
Debt of the Company and the Subsidiary Guarantors, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XIV.
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Debt.
Except to the extent of its obligations under the penultimate paragraph
of Section 1402 and the last paragraph of Section 1403, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt or Guarantor
Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Debt or Guarantor Senior Debt shall be entitled by virtue of this
Article XIV or otherwise. The Trustee's duties with respect to holders of Senior
Debt and Guarantor Senior Debt are limited to those specifically set forth in
this Indenture, and no implied covenants or obligations shall be construed by
any provision hereof.
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SECTION 1412. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIV with respect to any Senior Debt or
Guarantor Senior Debt which may at any time be held by it, to the same extent as
any other holder of Senior Debt or Guarantor Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
SECTION 1413. Applicability 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 XIV 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 XIV in addition to or in place of the Trustee; provided,
however, that this Section 1413 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1414. Defeasance of this Article XIV.
The subordination of the Securities and the Subsidiary Guarantees
provided by this Article XIV is expressly made subject to the provisions for
defeasance or covenant defeasance in Article XII hereof and, anything herein to
the contrary notwithstanding, upon the effectiveness of any such defeasance or
covenant defeasance, the Securities and the Subsidiary Guarantees then
outstanding shall thereupon cease to be subordinated pursuant to this Article
XIV.
SECTION 1415. Subordination Provisions Controlling.
Notwithstanding anything to the contrary contained in this Indenture,
to the extent that any provision contained in Articles I (other than Section
101) through XIII of this Indenture conflicts with any provision contained in
Article XIV (including the definitions of certain terms used in Article XIV) of
this Indenture, the provisions contained in Article XIV of this Indenture shall
govern and control.
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
TROPICAL SPORTSWEAR INT'L CORPORATION
By /s/ N. Xxxxx XxXxxxxxx
-------------------------------------
Name: N. Xxxxx XxXxxxxxx
Title: Executive Vice President -
Finance and Operations
Attest:
By /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President,
Chief Financial Officer
and Secretary
APPAREL NETWORK CORPORATION
By /s/ N. Xxxxx XxXxxxxxx
-------------------------------------
Name: N. Xxxxx XxXxxxxxx
Title: Executive Vice President -
Finance and Operations
Attest:
By /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President,
Secretary and
Treasurer
SAVANE INTERNATIONAL CORP.
By /s/ N. Xxxxx XxXxxxxxx
-------------------------------------
Name: N. Xxxxx XxXxxxxxx
Title: Executive Vice President -
Finance and Operations
Attest:
By /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
and Chief Financial Officer
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TROPICAL SPORTSWEAR
COMPANY, INC.
By /s/ N. Xxxxx XxXxxxxxx
-------------------------------------
Name: N. Xxxxx XxXxxxxxx
Title: Executive Vice President -
Finance and Operations
Attest:
By /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President,
Secretary and Treasurer
SUNTRUST BANK, ATLANTA,
as Trustee
By /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Group Vice President
Attest:
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
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SCHEDULE I
SUBSIDIARY GUARANTORS
Tropical Sportswear Company, Inc., a Delaware corporation
Apparel Network Corporation, a Florida corporation
Savane International Corp., a Texas corporation
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EXHIBIT A
[FACE OF SECURITY]
TROPICAL SPORTSWEAR INT'L INC.
11% [Exchange]** Senior Subordinated Note due 2008
CUSIP ______________
No. _______ $_________________
Tropical Sportswear Int'l Corporation, a Florida corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to ___________, or its
registered assigns, the principal sum of ____________________________________
($___________), on June 15, 2008.
[Initial Interest Rate: 11% per annum.]*
[Interest Rate: 11% per annum.]**
Interest Payment Dates: June 15 and December 15 of each year
commencing December 15, 1998.
Regular Record Dates: June 1 and December 1 of each year.
Reference is hereby made to the further provisions of this Security 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 Security to be signed
manually or by facsimile by its duly authorized officer.
Date: ______________ TROPICAL SPORTSWEAR INT'L
CORPORATION
By:
-------------------------
Title:
-------------------------
* Include only for Initial Securities.
** Include only for Exchange Securities.
A-1
89
(Form of Trustee's Certificate of Authentication)
This is one of the 11% [Exchange]* Senior Subordinated Notes due 2008 described
in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA, as Trustee
By:
----------------------------
Authorized Officer
------------------------------
* Include only for Exchange Securities.
A-2
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[REVERSE SIDE OF SECURITY]
TROPICAL SPORTSWEAR INT'L CORPORATION
11% Senior Subordinated Note due 2008
1. Principal and Interest.
The Company will pay the principal of this Security on June 15, 2008.
The Company promises to pay interest on the principal amount of this
Security on each Interest Payment Date, as set forth below, at the rate of [11%
per annum (subject to adjustment as provided in the fourth and sixth paragraph
of this Section 1)]* [11% per annum (subject to adjustment as provided in the
final paragraph of this Section 1), except that interest accrued on this
Security for periods prior to the applicable Exchange Date (as such term is
defined in the Registration Rights Agreement referred to below) will accrue at
the rate or rates borne by the Securities from time to time during such
periods].**
Interest will be payable semiannually (to the holders of record of the
Securities (or any predecessor Securities) at the close of business on the June
1 or December 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing December 15, 1998.
[The Holder of this Security is entitled to the benefits of the
Exchange and Registration Rights Agreement, dated June 18, 1998, between the
Company and Prudential Securities Incorporated (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Registration Statement is
not filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Securities, (b) the
Exchange Registration Statement is not declared effective on or prior to the
150th calendar day following the date of original issue of the Securities, (c)
the Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective on or prior to the 180th calendar day following the date of
original issue of the Securities, or (d) any registration statement required by
the Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically provided herein and in
the Registration Rights Agreement) without being succeeded immediately by an
additional registration statement filed and declared effective, the interest
rate borne by this Security shall be increased by 0.50% per annum for the first
90 days following the 60-day period referred to in clause (a) above, following
the 150-day period referred to in clause (b) above, or following the 180-day
period referred to in clause (c) above or following the date on which the
relevant registration statement ceases to be effective in the case of clause (d)
above (in any such case, a "Registration Default"). Such interest will be
increased by an additional 0.50% per annum for each subsequent 90-day period in
the case of clause (a), clause (b), clause (c) or clause (d) above until such
Registration Default has been cured; provided, however, that in no event will
the interest rate borne by this Security be increased by more than 1.50%. Upon
the filing of the Exchange Registration Statement after the 60-day period
described in clause (a) above, the effectiveness of the Exchange Registration
Statement after the 150-day period described in clause (b) above, the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 180-day period described in clause (c)
above, or the effectiveness of a succeeding registration statement, after the
date in clause (d) above, the interest rate borne by this Security from the date
of such filing, consummation or effectiveness, as the case may be, will be
reduced to the original interest rate set
------------------------------
* Include only for Init ial Securities.
** Include only for Exchange Securities.
A-3
91
forth above; provided, however, that, if after such reduction in interest rate,
a different event specified in clause (a), (b), (c) or (d) above occurs, the
interest rate may again be increased pursuant to the foregoing provisions.]*
Interest on this Security will accrue from the most recent date to
which interest has been paid or duly provided for [on this Security or the
Security surrendered in exchange herefor]*** or, if no interest has been paid,
from June 24, 1998; provided that, if there is no existing default in the
payment of interest and if this Security 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 Securities.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Securities on each June 15 and December 15 to the
persons who are Holders (as reflected in the Security Register at the close of
business on the June 1 and December 1 immediately preceding the Interest Payment
Date), in each case, even if the Security is cancelled on registration of
transfer or registration of exchange after such record date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Security to any Paying Agent on or after June 15, 2008.
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. [Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York (which shall be the
Corporate Finance Department of the Trustee, unless the Company shall designate
and maintain some other office or agency for such purpose), in lawful money of
the United States of America, or payment of interest may be made at the option
of the Company by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register; provided, however, that all
payments to Holders who have given wire transfer instructions to the Company
will be made by wire transfer of immediately available funds to the accounts
specified by such Holder.]*** [All payments will be made by wire transfer of
immediately available funds to the accounts specified by the Holder.]** 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 Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
------------------------------
* Include only for Initial Securities.
** Include for Restricted Global Security only.
*** Include for Physical Securities only.
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4. Subsidiary Guarantees.
This Security is entitled to the benefits of the Subsidiary Guarantees
made by each of the Subsidiary Guarantors, as described in the Indenture,
pursuant to which the Subsidiary Guarantors have irrevocably and
unconditionally, jointly and severally, guaranteed on a senior subordinated
basis the punctual payment when due, whether at Stated Maturity, by
acceleration, redemption or otherwise, of all obligations of the Company and
each Subsidiary Guarantor under the Indenture and this Security. A Subsidiary
Guarantor shall be released from its Subsidiary Guarantee upon the terms and
subject to the conditions set forth in the Indenture.
5. Subordination.
This Security and the Subsidiary Guarantees are subordinated in right
of payment, as set forth in the Indenture, to the prior payment in full of all
existing and future Senior Debt and Guarantor Senior Debt. Each of the Company
and the Subsidiary Guarantors agrees, and each Holder by accepting this Security
agrees, to the subordination provisions set forth in the Indenture, authorizes
the Trustee to give them effect and appoints the Trustee as attorney-in-fact for
such purposes.
6. Indenture; Limitations.
The Company issued the Securities under an Indenture dated as of June
24, 1998 as may from time to time be supplemented or amended by one or more
indentures supplemental thereto entered into pursuant to the applicable
provisions thereof (the "Indenture"), among the Company, certain domestic
subsidiaries of the Company (the "Subsidiary Guarantors" which term will include
all successor guarantors under the Indenture) and SunTrust Bank, Atlanta,
trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Securities 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 Security and the terms of the Indenture,
the terms of the Indenture shall control.
The Securities are general unsecured obligations of the Company.
7. Redemption.
Optional Redemption. Except as provided below, the Securities shall not
be redeemable at the Company's option prior to June 15, 2003. The Securities 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 June 15, 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 June 15 of each of the years set forth
below:
Redemption
Year Price
---- -----
2003.................................... 105.500%
2004.................................... 103.667
2005.................................... 101.833
2006 and thereafter .................... 100.000%
In addition, at any time or from time to time prior to June 15, 2001,
the Company may redeem up to 35% of the sum of (i) the initial aggregate
principal
A-5
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amount of the Securities and (ii) the initial aggregate principal amount of any
Additional Securities with the net proceeds of one or more Public Equity
Offerings at a redemption price equal to 111% of the principal amount thereof,
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 the relevant Interest Payment Date); provided, that, immediately
after giving effect to such redemption, at least $65,000,000 aggregate principal
amount of the Securities (including any Additional Securities) remains
outstanding; provided, further, that such redemptions occur within 90 days of
the date of closing of the related Public Equity Offering.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's last address as it appears in the Security Register.
Securities 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 Securities or portions of Securities called for redemption,
unless the Company defaults in the payment of the Redemption Price.
8. Repurchase upon a Change in Control and Asset Sales.
Upon (a) the occurrence of a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Securities at a
redemption price of 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase and (b) certain Asset Sales,
the Company is obligated to make offers to purchase Securities 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.
9. Denominations; Transfer; Exchange.
The Securities 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 Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Securities selected for redemption (except the unredeemed
portion of any Security being redeemed in part). Also, it need not register the
transfer or exchange of any Securities for a period of 15 days before a
selection of Securities to be redeemed is made.
10. Persons Deemed Owners.
A Holder may be treated as the owner of a Security for all purposes.
11. 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.
12. 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 and premium, if any, and accrued interest on the
Securities to redemption or maturity, the Company will be discharged from the
Indenture and the Securities, except in certain circumstances for certain
sections thereof.
X-0
00
00. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities 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 Securities
then Outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Debt; (ii)
Restricted Payments; (iii) certain Asset Sales; (iv) transactions with
Affiliates; (v) dividends and other payment restrictions affecting Restricted
Subsidiaries; (vi) issuances and sale of Capital Stock of Restricted
Subsidiaries; (vii) designation of Unrestricted Subsidiaries; (viii) Liens; and
(ix) merger and certain transfers of assets. Within 120 days after the end of
each fiscal year, the Company must report to the Trustee regarding compliance
with such limitations.
15. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Securities and the Indenture, the predecessor person
will be released from those obligations.
16. Remedies for Events of Default.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities then Outstanding
may declare all the Securities 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 Securities automatically
become immediately due and payable. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of at least a majority in principal
amount of the Securities then Outstanding may direct the Trustee in its exercise
of any trust or power.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may make loans to,
accept deposits from, perform services for, and otherwise deal with, the Company
and its Affiliates as if it were not the Trustee.
18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. 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 Tropical Sportswear
Int'l Corporation, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention:
Chief Financial Officer.
A-7
95
[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 Security and all rights thereunder, hereby irrevocably constituting
and appointing
--------------------------------------------------------------------------------
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES EXCEPT EXCHANGE SECURITIES,
UNLEGENDED OFFSHORE GLOBAL SECURITIES AND
UNLEGENDED OFFSHORE PHYSICAL SECURITIES
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
the end of the period referred to in Rule 144(k) under the Securities Act, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[ ] (a) this Security 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 Security 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 Security and the
Indenture.
A-9
96
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security 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 Section 307 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.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "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, general partner, trustee
or similar representative.
A-10
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1012 or Section 1013 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 1012 or Section 1013 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 Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed by a member of the New York
Stock Exchange or a commercial bank or trust company)
A-11
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EXHIBIT B
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
SunTrust Bank, Atlanta
0000 Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 11% Senior Subordinated Notes due 2008 of Tropical Sportswear
Int'l Corporation
Reference is hereby made to the Indenture, dated as of June 24, 1998
(the "Indenture"), among Tropical Sportswear Int'l Corporation, as issuer (the
"Company"), each of the Subsidiary Guarantors listed on Schedule I thereto and
SunTrust Bank, Atlanta, trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to $_________ principal amount of Securities which
are evidenced by the Restricted Global Security (CUSIP No. 00000XXX0) and held
with the Depositary in the name of Cede & Co. (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Securities to a
Person who will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the Regulation S Global Security (CUSIP No.
X00000XX0).
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(A) if the transfer has been effected pursuant to Rule 903 or Rule
904 under the Securities Act:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either:
(a) at the time the buy order was originated,
the transferee was outside the United States or the Transferor
and any person acting on its behalf reasonably believed and
believes that the transferee 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 the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with a buyer
in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903 or Rule 904 of Regulation
S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act;
B-1
99
(5) if the transfer is being requested prior to August 4,
1998, upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel Bank or both (Common Code ____________); and
(B) If the transfer has been effected pursuant to Rule 144 under the
Securities Act, the Securities have been transferred in a transaction permitted
by Rule 144 under the Securities Act.
Upon giving effect to this request to exchange a beneficial interest in
such Restricted Global Security for a beneficial interest in a Regulation S
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global Security pursuant to
the Indenture and the Securities.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated: , Signature Guarantee
------------ ----
------------------------------------
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EXHIBIT C
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
SunTrust Bank, Atlanta
0000 Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 11% Senior Subordinated Notes due 2008 of Tropical Sportswear
Int'l Corporation
Reference is hereby made to the Indenture, dated as of June 24, 1998
(the "Indenture"), among Tropical Sportswear Int'l Corporation, as issuer (the
"Company"), each of the Subsidiary Guarantors listed on Schedule I thereto and
SunTrust Bank, Atlanta, trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to $____________ principal amount of the Securities
which are evidenced by the Regulation S Global Security (CUSIP No. X00000XX0)
and held with the Depositary in the name of Cede & Co. (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. 00000XXX0), to be held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer is being effected pursuant to and
in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the Restricted Global Security pursuant
to the Indenture and the Securities Act.
C-1
101
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated: , Signature Guarantee
------------ ----
------------------------------------
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102
EXHIBIT D
FORM OF CERTIFICATE FOR TRANSFER OF U.S. PHYSICAL SECURITIES TO REGULATION S
GLOBAL SECURITY OR RESTRICTED GLOBAL SECURITY
SunTrust Bank, Atlanta
0000 Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 11% Senior Subordinated Notes due 2008 of Tropical
Sportswear Int'l Corporation
Reference is hereby made to the Indenture, dated as of June 24, 1998
(the "Indenture"), among Tropical Sportswear Int'l Corporation, as issuer (the
"Company"), each of the Subsidiary Guarantors listed on Schedule I thereto and
SunTrust Bank, Atlanta, trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to $___________ principal amount of Securities
which are evidenced by a definitive Physical Security (Certificate No.
__________, CUSIP No. __________, in the name of _________________) (the
"Transferor"). The Transferor has requested a transfer of such interest in the
Securities to a Person that will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the [Restricted Global Security
CUSIP No. 00000XXX0] [Regulation S Global Security (CUSIP No. X00000XX0)].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that: [if such request is made for transfer to
the Regulation S Global Security: such transfer has been effected pursuant to
and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act") and accordingly the
Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule
903 or Rule 904 under the Securities Act:
(A) the offer of the Securities was not made to
a person in the United States;
(B) either:
(i) at the time the buy order was
originated, the transferee was outside the United
States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was
outside the United States, or
(ii) the transaction was executed in, on
or through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the
transaction was prearranged with a buyer in the
United States;
(C) no directed selling efforts have been made
in contravention of the requirements of Rule 903 or 904 of
Regulation S, as applicable; [and]
(D) the transaction is not part of a plan or
scheme to evade the registration requirements of the
Securities Act; [and
D-1
103
(E) if the transfer is being requested prior to
August 4, 1998: Upon completion of the transaction, the
beneficial interest being transferred as described above is to
be held with the Depositary through Euroclear or Cedel Bank or
both (Common Code __________);] and
(2) if the transfer has been effected pursuant to Rule
144, the Securities have been transferred in a transaction permitted by
Rule 144.]
[(3) if such request is made for transfer to the
Restricted Global Security: Such transfer is being effected pursuant to
and in accordance with Rule 144A under the Securities Act, and,
accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a person that the Transferor
reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A.]
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
Upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel Bank or both (Common Code_____).
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated: , Signature Guarantee
------------ ----
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D-2
104
EXHIBIT E
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
SunTrust Bank, Atlanta
0000 Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 11% Senior Subordinated Notes due 2008 of Tropical
Sportswear Int'l Corporation
Reference is hereby made to the Indenture, dated as of June 24, 1998
(the "Indenture"), among Tropical Sportswear Int'l Corporation, as issuer (the
"Company"), each of the Subsidiary Guarantors listed on Schedule I thereto and
SunTrust Bank, Atlanta, trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
[For transfers: This letter relates to $__________ principal amount of
Securities which are evidenced by a [Restricted Global Security (CUSIP No.
00000XXX0) and held with the Depositary in the name of Cede & Co.] [a U.S.
Physical Security (CUSIP No. ________________) registered in the name of
_________________] [and held for the benefit of _________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be transferred to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. X00000XX0).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that upon such transfer, (a) a period of at
least two years will have elapsed since June 24, 1998, (b) the Beneficial Owner
during the three months preceding the date of such transfer was not an
"affiliate" of the Company (as defined in Rule 144 under the Securities Act),
and it was not acting on behalf of such an affiliate and (c) such Person to whom
such transfer is being made is not an "affiliate" of the Company.]
[For exchanges: This letter relates to $__________ principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No.
00000XXX0) and held with the Depositary in the name of [ ] [and held for the
benefit of ]____________] (the "Beneficial Owner"). The Beneficial Owner has
requested that its beneficial interest in such Securities be exchanged for a
beneficial interest in an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. X00000XX0).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that [it is located and acquired such
securities outside the United States (if the Restricted Period has ended) and
that such transfer is being made in accordance with Rule 903 or 904 of
Regulation S under the United States Securities Act of 1933][, upon such
exchange, (a) it will be the beneficial owner of such Securities, (b) a period
of at least two years will have elapsed since June 24, 1998 and (c) the
Beneficial Owner will not be, and during the three months preceding the date of
such exchange will not have been, an "affiliate" of the Company (as defined in
Rule 144 under the United States Securities Act of 1933), and it is not acting
on behalf of such an affiliate.]
E-1
105
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: [Insert Name of Beneficial Owner]
By:
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Name:
Title:
E-2
